FRIDAY, AUGUST 24, 2001
Our Patent Ignorance
R A Mashelkar, director-general of the Council of Scientific and Industrial Research, is a long-time advocate of patent literacy. The basmati episode proves that there is need for far greater awareness, Mashelkar tells Chandrika Mago as he explains India's position and `triumph' in RiceTec's `basmati' patent case:
Despite the official position that India has won the basmati battle, why is there a feeling that we have, in fact, been caught napping?
It's unnecessary confusion. The RiceTec patent surfaced in 1997. India put in a re-examination request in April 2000; it took us two years of hard work to put together the data. Strategically, we challenged three (of 20) claims which were too broad and could affect our exports. RiceTec withdrew those, and a fourth, too. The US patent office, on re-examination, decided to make them withdraw 11 claims. That left five claims. They have crossed a Pakistani basmati variety with an American semi-dwarf variety. These new rice lines have nothing to do with basmati.
Should we have challenged all the claims? Some suggest what has been approved is a ``back-door'' patent.
Frankly, people are unaware of what is involved in the challenge of a patent. You can challenge a patent only if you have substantial data. We had to collect evidence, back it with the germplasm collection, evaluate the grain characteristics.
There's a lot of over-reaction. Texmati is being sold in the US for the past 20 years yet it hasn't captured the market. Even after RiceTec's 1997 patent, our exports to the US have doubled.
The outcome of such contests depends on documentation of traditional knowledge. Where do we stand on this front?
Turmeric (its use in wound healing) was the first fight the Third World took on, and won. It gave us confidence. Subsequently, as chairman of the standing committee on IT in the World Intellectual Property Organisation, I took up the issue that traditional knowledge should be considered on par with industrial property systems. For the US patent office, the problem was that traditional knowledge lay in books or in the head. It wasn't accessible. It wasn't available in the International Patent Classification System, used by patent examiners around the world. This is when the idea of a traditional knowledge digital library came.
Of over 100,000 sub-groups in the international classification system, there is only one, currently, on traditional medicines. Once the library and our Traditional Knowledge Resource Classification system (TKRC) are in place, we will have as many as 5,000 entries on indigenous medicine. The project has started; the Union government gave Rs 1.4 crore early this year. We're beginning with medicine, the most contentious. This would make the connection between, say, our Sanskrit shlokas and the patent examiner. Translated into English, a language they can understand, it will go into the digital library, linked to the international patent classification system through TKRC. Experts in intellectual property, IT, indigenous systems of medicine and scientists will come together for this. It is important because the indigenous systems talk of symptoms; the West, of disease.
What are the lessons for us in the battles for turmeric, neem, karela, jamun and basmati?
Turmeric was just a starter, it opened up opportunities. One fallout was understanding the importance of documentation, in a way the rest of the world could accept. Two, countries like America waking up to ground-level problems. Our knowledge isn't codified, the US office gets 500,000 patent applications a year and has no option other than an electronic search. Help us to help you, was their suggestion. Windows have been opened, establishing the legitimacy of traditional knowledge. The international patent community has accepted this; this has important ramifications.
There still doesn't seem to be a constant vigil, or monitoring, of patents. Don't we need that?
It has to be done on an individual basis. See this in perspective - the fight on turmeric was a government initiative, the basmati case was fought by industry and the government. Over a period of time, industry must become smart enough to fight on its own.
All over the world, it's not governments that contest cases. But there was tremendous lack of awareness in industry. That is changing, the intensity of patent filing is increasing. The drugs and pharmaceuticals industry is becoming smart. In 2000-2001, CSIR filed 454 foreign patents, against 199 the year before. The good news is that awareness is growing.
Once our plant varieties, biodiversity and geographical indication Bills are in place, do you think they would provide adequate cover?
The patent amendment, plant varieties protection and biodiversity Bills have all been extraordinarily, vigorously and intensively debated for several years. The final product should take care of India's interests.
Haven't these been delayed inordinately?
It's an evolutionary process. Acts are dynamic, not immortal. We are learning to deal with knowledge generated by communities, societies. This is being looked at for the first time. There were 20 roving workshops for the patent amendment Bill.
Where do we stand on these fronts in TRIPS?
Within TRIPS, the entire developing world is together, there is growing awareness. It is still up for review. But there is enough flexibility for the developing world; it is up to a country to intelligently use this. The developed world is also concerned. Britain has set up a commission, a sort of independent jury, to look at issues such as economic access to essential medicines. The commission, of which I am a member, had its first meeting in May; we are to give the report by March.
We talk of spreading awareness, getting our act together. Overall, in terms of strategy, what do we need to do?
The first thing is that we must build capacity in generating new intellectual property, protecting it, valuing it. We must build capacity in legislation, policy, enforcement. We must integrate IPR into courses in law, engineering, trade and commerce, social sciences. IPR is a game of the mind, it deals with products of the mind and their impacts, and these are now being used as strategic weapons. We need a wholly integrated view at all levels, reflected all through.
Is it happening?
Steps are being taken. Five chairs have been created. Of these, two IPR chairs, at the Pune and Allahabad universities, are being funded by CSIR. The Bangalore Law School is integrating IPR into courses. As demand increases and people understand the real meaning of a knowledge economy, a transformation will take place.
Aren't we running out of time?
In a country like India, things happen fast if people catch on. I still believe we can catch on. Institutions, industries must come in. One thing the basmati episode has shown is the need to create far greater awareness, explaining in the local languages. It's a literacy issue - and that includes the media.
Copyright © 2001 Times Internet Limited. All rights reserved.