Is Traditional Knowledge Digital Library A Success?

          Is Traditional Knowledge Digital Library A Success?

Abstract

This paper aims to analyze the performance of Traditional Knowledge Digital Library (TKDL) in the protection of traditional knowledge and the interests of the indigenous people. The core of the paper is to analyze the various problems which are associated with TKDL. These problems are divided into five broad groups, these groups are Problem of treating traditional knowledge as property, Substantive Legal Problems, Procedural Problems, Problem of the Closed Access Model and lastly the Economic problems. Of all these problems the first one is against the idea of TKDL itself while the others are trying to find fault with the structure and working of TKDL. After analyzing all these problems the conclusions which emerge are that there is a need to find a balance between utilization of resources for the protection of the rights of the traditional communities so that they are empowered to ensure that their knowledge is not abused and utilization of resources
for a TKDL because this database will play an important role in protection of the rights of the traditional communities once it shortcomings have been overcome.

INTRODECTION:-

The lack of proper and accessible documentation about traditional knowledge has been a cause of great disadvantage for the indigenous people who have  nurtured and preserved that knowledge for a long period of time. Industrialists and scientists from across the world have taken benefit of this deficiency and continue to do so because they have the excuse of  saying that there does not exist any prior art which can legally prevent them from coming up with inventions,  especially in the pharmaceutical field, which are heavily reliant on traditional knowledge. It has been stated that the main reason for the exploitation of traditional knowledge, also known as bio-piracy, is that even in the cases where certain form of documentation is available in those cases also there arises the problem of the documents being in local languages like Urdu, Tamil, Sanskrit etc., making it very difficult for the patent examiners to have access to these documents and also to perform their work efficiently. The tipping point was the patent which had been granted in USA for the wound healing properties of turmeric. This was the point from which the active development of the Traditional Knowledge Digital Library better known as TKDL started.

TKDL: A Ray of Hope:-
TKDL has been considered to be quite helpful as far as its application in Europe is taken into consideration. It is claimed that in its initial couple of years only TKDL was able to help in rejecting 36 patent applications and up till 2015 out of 189 traditional knowledge in the European Patent Office, 17 were rejected, 30 were deemed withdrawn, 31 were abandoned and 21 were accepted. The remaining 90 applications were under consideration around 2016.2 As one can see from the numbers, TKDL does not seem to have an outstanding success
considering the fact that a great number of patent applications were undecided till 2016 and that too for a long period of time.3 Although, a look at the EPO website does show that most of them have been resolved as of now but as mentioned below there is at least one application which was filed in 2008 but was under scrutiny until recently. 4 Also, it seems appropriate to state at this point that the applications which were withdrawn should not be considered as a victory for TKDL, because there are cases where these withdrawn applications go for re examination and patent is granted.

Problem of Traditional Knowledge being Treated as Property:-
It is known that indigenous people are quite against the idea of their traditional knowledge being considered to be some sort of property or commodity. It is their belief that the knowledge which they acquire from their interaction with nature, is a gift which nature has given to them and they do not agree to the idea that such knowledge could be alienated in favor of one person or one body as such. Traditional
knowledge being a gift of nature, it can never be completely alienated from either nature or the local community which has preserved it, the usage of such knowledge should be only in a manner which is into account the fact that this knowledge and its details are connected to a certain context and type of application, and TKDL simply documents all the information.11 The modern obsession of turning all  knowledge into some sort of commodity or property has led to the knowledge being deconceptualized and thus the traditional knowledge loses its essence because of its detachment from the community and nature.11 Here again we get an opinion that instead of spending resources on this unnecessary documentation of resources it would have been better if the resources were used for better preservation of existing traditional texts.11 Since we are talking about the waste of resources it seems apt to mention here that in a lot of cases the patent offices
rely firstly on modern scientific literature to object to patent claims rather than on Indian traditional knowledge.

Substantive (Legal) Drawbacks:-
As mentioned in the previous section, there might be certain issues with functioning of foreign legal systems that might lead to exploitation of TK despite of genuine effort being put in to protect TK by way of TKDL. A major legal problem is that there is a lack of a unified understanding of ‘prior art’ as a result of which the data documented by TKDL is not accepted as prior art by the United States Patent Office.10 The reason for this is the fact that there are two standards for defining prior art in the United States. These standards are the Pre-America Invents Act standard and the Post America Invents Act standard. The definition of prior art as under the Pre-America Invents Act does not allow the citations listed in TKDL to be cited as prior art.10 The complete substitution of this standard by the Post-America Invents Act standard will not happen up till the 15 March 2034.

Procedural Drawbacks
The major procedural drawback is that most of the patent examiners have not been trained adequately to identify TK as prior art. An example for the same can be the situation where the USPTO (The United States Patent and Trademark Office) granted patent over the use of Aloe Vera for the purpose of treating dry eyes, in this case the only distinguishing or novel aspect was that chlorinated water was used instead of using
just clean water.16 It is a clear representation of the lack of competency of the patent examiner. It is true that as a part of the agreement which grants a particular patent office the access to TKDL, it is required that CSIR (Council of Scientific and Industrial Research) should train the patent examiners so that they can use the TKDL search tools and examination processes.17 Still, it has been asserted that faults as the one mentioned above occur because the patent examiners lack the skill and competency.10 This then leads to a question, that if the competency of the patent examiner is an issue then why should TKDL get blamed, maybe it will take some time for the patent examiners to acquire the required skills but that does not mean that the whole idea of TKDL is at fault. This lack of competency will surely have an impact on the grant of patents in general and should not be held as a problem specific to TKDL.

Economic Problems:-
The presentation of this problem is partially in conflict with the earlier argument about how the deficiency in the legal standards of USPTO should not be ignored. This happens because this section proceeds upon moral and objective grounds while those arguments had a strong moral basis. Still, in order to present the whole picture which will help in an overall improvement of the system, it is important that all the arguments are presented. Now, the economic criticism of this whole process of protecting traditional knowledge in foreign jurisdictions is that the patents which are being granted there will not have any impact as such within the Indian territory. So, under such circumstances it is
a waste of resources to engage in legal battles because of a “misplaced sense of pride in our past glory”.12 Further, in most of the cases in which the patents had been revoked the reason for revocation was that certain objections had already been raised on the basis of modern scientific literature and reliance wasn’t actually placed on any traditional knowledge database as such. Also, in cases where an applicant had
withdrawn his or her application there is no evidence as such to prove that this withdrawal happened because of TKDL.12

Conclusion
After all the discussion we have a set of opinions as to what has to be done in order to ensure that TKDL TKDL being based on a closed access model, it is strongly suggested that it should be opened up for public access as that will help scientists to further their research and will also help applicants to know about the prior art in the field which they are working. Security concerns have been raised but they can be
dealt with. Lastly, the economic critique was simple, that resources should be better managed. The practical impact of a certain patent should be analysed and only after that a challenge should be posed to it. This is the only other problem after the one about traditional knowledge being treated as property where one finds an inclination that TKDL as a whole was a bad idea.  Cumulatively, it doesn’t seem that it is practically reasonable to suggest the scrapping of TKDL. It will be best if all the suggestions are incorporated after a sincere feasibility analysis. Also, as suggested above  In addition to TKDL (not in place of it) efforts should be made for the upliftment of the indigenous
communities so that they are capable of self determination.

Leave a Reply

Articles

Amarose Skin Tag Remover (Updated Reviews) Reviews and Ingredients

The Amarose Skin Tag Remover is the cutting edge serum made customarily with best grade of updates and standard concentrates to beat the making skin issues. You can recover the wavering and shining skin that you genuinely care about. It hinders the harms and reestablishes the skin prospering with generally speaking around that truly matters, no typical […]

Read More
Articles

Facts about Hijr Ismail or Hateem in Makkah

Hijr Ismail, sometimes referred to as the Stone of Ismail and Hateem, is a white marble wall in the shape of a semicircle located directly opposite the northwest wall of the Holy Kaaba. However, it is not joined to that wall. It was there that Holy Prophet Ibrahim (PBUH) constructed a house for his wife, […]

Read More
Articles

Endura Naturals Male Enhancement [Get 100% Genuine Result] Achieve Bigger | Harder Erections With This Supplement(Work Or Hoax)

Endura Naturals Male Enhancement Model Name – Enhance Sex Drive & Libido (Pure Form Ingredients) Treatment – Sexual Health Quantity – 60 Capsule Benefits – Regain Natural Energy, Stamina, & Sex Drive, Get Harder, Longer Lasting Erections Results – In 1 Month Customer Reviews – 5/5 Refund Policy – 60-Day Money-Back Policy Where to Buy […]

Read More