Fitness

Traditional medicines and intellectual property rights (IPR)

Developed from experience gained Over the centuries and adapted to local culture and environment, traditional knowledge / traditional medicinal practices have been transmitted orally from generation to generation. It tends to be collectively owned and takes the form of stories, songs, folklore, proverbs, etc. attached cultural values, beliefs, rituals, laws and the local language.

Traditional medicine research should be encouraged to better understand the mechanism action of drugs used, the chemical reactions happening during processing by the body, the active ingredients responsible for action specific drug and identifying the molecules responsible for the reduction of toxicity, etc. The portfolios of potential research include the normalization various medications, changes in the "form" and "highway" of the drug, improving the life of drug quality standards of drug production and innovations in processing, packaging, storage, transportation, delivery etc. No Bar on researchers to file a patent on substantially improved version of traditional knowledge or the development of new medicines based on the principles of traditional medicine.

But the misappropriation of TK held by private companies has become quite widespread Today, because of the vulnerability of it being "passed" as inventions. Although "intellectual property" does not include not "know" in the strict sense, many patents have already been taken on traditional knowledge (particularly traditional drugs). Of course, there are few sagas of the revocation of success of some of these patents, but at the cost of the exchequer.

Patent examiners are not left with the choice other than the granting of a patent on an "invention" to reach his desk "in the form of a document," if it "suits to its logic "it is a rather industrial innovation in the public domain. Many business establishments without" knowledge traditional "as if it was an invention made by them and many times it is easy for them to go through the formalities because knowledge is not sufficiently codified and made available to the examiner in a searchable database. In the recent past, CSIR India was involved with the creation of a traditional digital library knowledge (TKDL), a database that will serve as "art" against any attempt to patent traditional knowledge. "Before art "is meant to encompass all that has been published, presented or otherwise disclosed to the public on the date of the patent (prior art includes foreign language material disclosed in any format anywhere in the world).

India's traditional Knowledge Digital Library (TKDL) contains about 2.08 lakh formulations based on Ayurveda, Unani, Siddha and Yoga. The formulations were transcribed in five international languages to learn. English, French, German, Spanish and Japanese in order to prevent misappropriation of medical traditional knowledge in international patent offices. India has already shared with TKDL European Patent Office (EPO) and the USPTO on agreement that EPO and the USPTO must use the database for research and review purposes only and shall not make any disclosure to a third party, except for the purpose of giving a copy of the print to the inventor / applicant as a quotation. The agreement with the access of patent offices without mention TKDL is clear that a "technical". I wonder how "privacy" can be maintained if TKDL is considered a "technical".

While the codification of traditional knowledge digital libraries and sharing it with the patent offices is a viable solution to the diversion Live, it is feared that these digital libraries can serve as platform for capitalists in search of the private ownership of improvements on such traditional knowledge that are not otherwise accessible. Of course, TKDL is the right strategy for preventing misappropriation of TK Direct already in the public domain and known to a large section of people (the healing properties of turmeric for example). However, we learn that the concept is extended TKDL (In combination with "Prior Informed Consent" and "access and benefit sharing" tools) to allow the codification community belonging also to TK. In the latter case, there is a manifest injustice to those communities, if TK of this nature is shared with the patent offices.

It is difficult for patent offices to keep secret the contents of TKDL of others, since no patent could not be refused without disclosing the associated TK encoded with the invention to the applicant. Patent examiners may limit the scope a patent claim on traditional knowledge (or reject it completely), if it gives the relevant part of TKDL the inventor to show that is a "state of the art". Fraudsters may file patent applications for purely conceptual (which would look like if they had done the invention), only to see that they could recover the authentic information on a practical TK / product.

We wonders if TKDL stops Bio-piracy or facilitate it.Instead TKDL a "TK Firmware System (TKDS) [something like Management Information System (MIS)] can be created and maintained by the authorities. TKDS must contain the place where traditional knowledge is available, the community which owns the TK, a brief description of the nature of TK and the communities PROTOCOLset by holders of TK / for providing access to traditional knowledge. communities, knowledge must be informed of their rights over traditional knowledge and they shall be empowered to negotiate their share because of the monetary benefits of commercialization of traditional knowledge belonging to them. However the documentation of TK the public domain can be done in the national interest (in the form of TKDL). This will be open to the public.

Concepts such as "consent prior knowledge "," Access and Benefit Sharing ", etc. have proven to be wrong tools to knowledge in care from traditional practitioners available for further research while protecting their interests. Sui generis legislation for the protection of TK Traditional is the need of the hour.

Sui generis legislation for the "rights" in TK: Kerala IPR policy priorities

Intellectual Property Rights Policy emphasizes that the Kerala government is very concerned about protecting its rich traditional wealth of practical knowledge including traditional medicines Tribal, Ayurveda practices and biodiversity. Policy Release June 27, 2008, notes that the solution could be deemed to recognize the rights holders TK and make them aware of their rights. The policy document proposes to commit all traditional knowledge, including medicinal traditional practice which supports the livelihoods of many people in the realm of "common knowledge" and not the "public domain". "Towns Knowledge "refers to knowledge that is collectively produced sphere of ideas and who is left unused for the benefit of all.

The property is attributable to the State / Crown, given the fact that traditional knowledge is wealth accumulated traditional and maintain long kept its practitioners, tribal communities and families, in which all deemed to act as "trustees" of State / Crown. Therefore, the intent of the bill "is not exactly the creation of rights on TK, but the assignment of certain rights (not all of the rights) held by the State to those of trustees deemed "in return for their commitment to traditional knowledge in the field of "Knowledge Commons"

Knowledge in digital form offers unprecedented access to information through the Internet, but at the same time, is restricted more and more through intellectual property legislation, over-patenting, licensing, excessive prices, and lack of conservation. According to latest reports, most digital libraries are now becoming "the Knowledge Commons. " The "common knowledge" will be a dynamic, ease of learning user-centered integral school life of students. Municipalities to integrate scientific resources, information technology, software, expertise, education and study.

If the rights envisaged by the property policy on traditional knowledge, all rights holders will be deemed to maintain their rights under a "Commons License" in which rights holders must allow others the use of knowledge in their possession for non-commercial use. It is further stipulated that any development is to use this knowledge under license required above shall be returned to the realm of "common knowledge", "traditional knowledge commons" and thus denying the scope of patentability thereof.

The basic concept of Creative Commons [and not some rights reserved all rights reserved] was adopted in Kerala Property Rights intellectual policy to shape the concept of "Commons License", as he Moots use of knowledge for non-commercial use. To quote Lawrence Lessig founder of Creative Commons is a culture in which creators create only with the permission of the powerful, or of creators from the past. "Creative Commons "providing free tools that allow authors, scientists, artists, and educators easily mark their creative work with the freedoms they want it passed. It allows you to copy, distribute and transmit the work or adapting the work only for non-commercial use. If you alter, transform, or build upon this work, you may distribute the resulting work only under a license identical to this one. Licensees may distribute works derived under a license identical to the license that governs the original work.

Although the concept of "Commons License" proposed by policy is based on the fundamental notion of "Creative Commons" used by advocates of OSS, its scope differs considerably that of "Creative Commons License. The "Commons License" should not be confused with the concepts experienced free software (or open source) "Creative Commons" licenses like the GPL, LATEX etc., which applies mainly to "expressions" for protection under "copyright". Specific provisions for these "traditional knowledge Commons License" will be developed to ensure open access, non-commercial reproduction and codification of traditional knowledge. There must be some kind of "license deemed" which applies immediately to the user TK, when he decided to use it for any purpose. The provisions of the license is deemed to include in the legislation to ensure free, non-commercial reproduction and codification of traditional knowledge.

According to the policy document, the guards / Custodians of traditional knowledge (ie the tribal community, family, etc.) will be recognized as rights holders, but they are required to submit knowledge Traditional owned by them for non-commercial free. Where knowledge is revealed for the documentation, and allow searches Further thereof. However, these holders may license TK under their possession to third parties for commercial purposes on the terms and conditions negotiated in accordance with the provisions of the "Commons License". Regarding traditional knowledge, which is the livelihood of many practitioners strewn Kerala, the state will be deemed to have rights on this TK. Even if the state holds the property on TK, all actual practitioners TK will be a standalone license for Commercial Law of the State. But these owners are not entitled to sublicense this right of commercial use to anyone, and right for transferring licenses only be appreciated by the state.

Creation of rights and obligations of directors requires a mechanism to recognize the rights holders, to respect the rights and recommend legal action against the violators of rights and "Common License. Therefore, the policy recommends establishing an agency Kerala called TK Authority (KTKA), with which rights holders will be registered. KTKA give general advice to the public regarding all applications made to it by practitioners to invite the public to bring to the attention of KTKA, any disputes of claims applicant requests or challenges of the oneness, the prevalence of similar practices in more than one location or community, etc. After scrutinizing all litigation cases and after resolving the issue of ownership / possession, which would eventually include KTKA a community / group / individual as a "knowledge custodian "of these unique practices of TK.

It is also important that stakeholders be made aware of the protection rights conferred on them by the potential theft. Therefore all stakeholders as it would be advisable to get together and form "companies of knowledge. " "Traditional knowledge of the user co-operatives" will also be encouraged in legislation

Although the expected policy developments to put on traditional knowledge back to the realm of "common knowledge", path breaking inventions such as the development a new drug molecule or process it implies substantial development costs should not be part of the "common heritage knowledge "in the strict sense, even if TK can form the basis of its origin. The ultimate goal of the legislation is not protecting the interests Financial TK holders, but the benefit of society at large, as in the case of the basic concept of PATENTS. Patents give rewards money to reveal the technological innovation as well as praise for the inventor. Issuance of a patent for inventions attracts investment that commercial exploitation of the invention is possible at its full potential during the patent term. The policy does not support the extension "secret commercial "Protection of Traditional Knowledge and the State is totally against the creation of a monopoly on knowledge. Thus Kerala Property Rights provides intellectual political channels and means to highlight the traditional knowledge for the benefit of society.

sacred Constitutional Bill

Although there is no obstacle to the state of Kerala having a policy on intellectual property rights (IPR) to announce its position relative to its culture, geography, people, biodiversity, etc., holiness constitutionality of legislation based policy is questionable that IPR is a union issue. However, it is imperative that we must find ways to circumvent this law constitutional bottle neck and to push the measure. I have the following arguments regarding the sanctity of the Constitution Bill

1) Words like that "traditional knowledge", "intellectual property", "Biodiversity" etc. did not find specific reference anywhere in the Union list, and entry is limited to 49: "Patents, inventions, designs, copyright; trademarks and trademarks of goods "[The application of the" pith and marrow "rule may limit the scope].

2) Ownership TK can be attributed to the State / Crown, given the fact that traditional knowledge is an accumulated wealth of traditional and maintain long kept its practitioners, tribal communities and families, in which all deemed to act as "trustees" of State / Crown. So traditional knowledge is very much a "treasure" (No. 44 in the list of state), where the State has the power to legislate.

3) 26 Point of No Status list can be used to regulate the operations of "knowledge". Item No. 64 provides for punitive mechanisms.

4) 7 (contracts) of the concurrent list and No. No. 6 (Transfer of Property) is also relevant.

5) Section 300A also covers intellectual property. Section 304 (b) and Article 19 (6) gives an added advantage for treating traditional knowledge as property and thus regulate its trade

6) The proposed legislation did not intend to touch the Patent Act at all, being a Union subject. But some provisions in the Biodiversity Act (using the powers Residual central government) should be supplemented with additional, but using the provisions of sections 258A and 258 (2).

7) It is the state support guidelines in section 38, 39 (b) and 39 (c)

Most importantly, the bill "is not exactly for the creation rights over traditional knowledge ", but to assign these rights to those" deemed trustee "in return for their commitment to traditional knowledge the realm of "knowledge commons"

About the Author

R.S. Praveen Raj Scientist – IP Management & Technology Transfer National Institute for Interdisciplinary Science & Technology (NIIST), (Formerly RRL, Trivandrum), Industrial Estate P.O., Pappanamcode, Thiruvananthapuram – 695 019.

http://secularcitizen.blogspot.com/2009/12/r-s-praveen-raj.html

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