The Sunday Tribune

patent piracy

The US recently clarified that patents had not been issued on yoga positions but reports confirm that it has approved 150 yoga-related copyrights, 134 patents on yoga devices and 2,315 yoga-related trademarks. Vibha Sharma looks at the past disputes over patents issued for traditional Indian resources and the checks required to tackle US patent laws, which provide the developing world little protection against bio-piracy

Patents issued by the US on turmeric and neem were revoked after they were challenged by India — Photo by Kuldip Dhiman

LIKE most things in this world, it is all about money. Whether it is turmeric, tulsi, neem, basmati or the latest controversy regarding the US patents office granting patent on yoga postures (which the US has since then denied), the fact of the matter is that more than the original concept behind patents protecting the creativity of an individual so that the knowledge could be used to benefit society, intellectual property rights (IPR) are now all about big bucks.

Recently, following media reports that Los-Angeles based "guru" Bikram Chaudhury claimed IPR on the age-old Indian treasures of yoga postures, there naturally was a massive hue and cry from yoga gurus and enthusiasts alike.

As far as the government is concerned, AYUSH, the Department of Ayurveda, Yoga and Naturopathy, Unani, Siddhi and Homoeopathy, swung into action and lodged a formal complaint with the Ministry of Commerce and Industry. It was understood that the Indian Embassy in the US would take up this rather disturbing issue with the patents’ office there.

But later the US clarified that no patents had been issued on yoga positions. In a statement issued on June 7, the US Embassy in New Delhi said the US Government conducted a search of all patents issued and no US patents on yoga positions were identified.

"Recent media reports alleging that such patents exist are inaccurate. Although the US Government is unaware of any US patents on yoga, the US Patent and Trademark Office has granted patents on new and non-obvious devices that may be used in conjunction with yoga. However, those patents would not include any yoga positions. This information has been provided to the Indian Ministry of Commerce and Industry," the US Embassy stated.

Maybe, this time media reports created a furore over a non-issue. Maybe, there was something more to it. But if correct, yoga postures would have added another name to the long list of patents granted by the US on some essentially traditional and indigenous products from developing countries the world over. In any case, the embassy did admit that "the US Patent and Trademark Office has granted patents on new and non-obvious devices that may be used in conjunction with yoga".

Why yoga?

— Photo by Kuldip Dhiman

The world over, there is big money to be made in teaching yoga - a whopping $3 billion a year in the US alone. A market survey by a journal even proclaims that yoga is a $30-billion business in the US that includes accessories, equipment, instructional books and DVDs. A fact that no doubt would continue to amaze an average Indian that there is so much money to be made from a traditional indigenous knowledge that doesn’t belong to a particular individual. But it is this money that has in the past and will continue to prompt fitness gurus in the future to apply for patents for yoga postures and yoga-related contraptions.

Amit Kumar of Navdanya, a social organisation headed by noted activist Vandana Shiva, says the very idea of issuing patents on yoga asanas is outrageous. He has complied an exhaustive document titled "issue of patents on yoga" which includes reports that indicate that the US has issued 150 yoga-related copyrights, 134 patents on yoga accessories and 2,315 yoga-related trademarks.

He consulted newspapers, journals and books on yoga to prepare the report on the basis of which Navdanya was planning to file a petition. In his document, Kumar says that close to 20 million Americans practise yoga and most of fitness clubs in the US offer instructions.

"Retailers such as Wal-Mart and Rei stock up on yoga accessories like DVDs, apparel, mats and other equipment. Nike is scheduled to launch its first yoga shoe. The average yoga practitioner’s annual expenditure for enlightenment is estimated at $1,500," he says.

So the bottom line is that in this modern world, stress is a part of life and yoga has become an important stress-buster or stress management tool. Business-wise, it the fastest growing sector in the world. A yoga instructor can earn $80 to $125 per class per person and the amount increases if the instructor is involved with the high-flying corporate world.

It is the growing awareness about lifestyle values that has made yoga a truly global industry. Lifestyle diseases and the high cost of medical expenditure have made people seek answers in yoga everywhere in the world. In Asia, yoga is a booming business in several countries. It is a craze in Singapore. European countries have resorted to yoga in order to increase productivity.

Bio-piracy

While it is important to take up seriously the protection of age-old wisdom of yoga, an even more important task is to protect the priceless wealth of the country, encased in the centuries-old traditional knowledge.

The issue of bio-piracy is assuming dangerous dimensions with western countries doling out patents to essentially traditional and indigenous products of the developing world. As Gene Campaign Director Suman Sahay puts it, "The fact is that no one can patent wisdom and even if someone does manage to get some yoga postures patented I can still continue to practise them at home. Who will stop me? But what India and rest of the developing world should be more concerned about is bio-piracy in sectors like food and medicines."

So far, the problem has been that indigenous knowledge is accessible and susceptible to being stolen, especially that related to the treatment of diseases. For any individual, pharmaceutical company or a technologically rich country, age-old tested and proven medicinal knowledge can provide good leads for development of biologically active molecules.

Patent attempts have already been made on turmeric, neem and basmati rice and the threat continues due to lack of prior existing knowledge on the country’s traditional wealth. "It is in ancient traditional knowledge of herbal medicines where our great treasure is. Starved of traditional knowledge, it makes business sense for the western world to steal these prized possessions," is what Sahay has to say.

Attempts to steal traditional Indian knowledge are common since exhaustive information is available in Sanskrit, Tamil and other regional languages but not in international languages like English or French. Because of the language barrier, patent offices are unable to search information they want on prior existing knowledge or art before granting patents.

Digital database

On individual basis, India is working out a way to save its ancient traditional knowledge and fight against bio-piracy. A task force was set up by the government in 2003 for protecting traditional knowledge and intellectual property with the aim to stop foreign and Indian expatriate companies, practitioners and individuals from claiming copyrights.

Normally, a patent application is rejected if there is prior existing knowledge about the product. But the problem has been that developed nations like the US recognise prior existing knowledge only if it has been published in a journal or is available on a database. Not like it has been happening in India, passed down the generations through oral and folklore traditional methods. And even when there is extensive recorded knowledge available in hundreds of ayurvedic, unani, siddhi and other ancient texts, they have never been translated and put into public domain in languages the rest of the world uses.

Which is why the National Institute of Science Communication and Information Resources is now putting together the Traditional Knowledge Digital Library (TKDL), an electronic encyclopaedia of country’s traditional medicine in five international languages, English, German, Spanish, French and Japanese, in order to stop people from claiming and patenting them. The TDKL, a 10-million page digital database of traditional Indian knowledge, is a collaborative effort of AYUSH under the Ministry of Health and the CSIR under the Ministry of Science and Technology.

The digitally documented database in international search format will provide access to international patent offices for reference purposes and can be networked to the main patent offices around the world. The information is being structured under section, class, subclass, group and subgroup as per the International Patent Classification (IPC) for the convenience of international patent examiners. The database will not only help avoid misappropriation of traditional Indian knowledge but also help avoid expensive and long litigations to undo rights already granted.

The task has been huge as it involves translating ayurvedic texts which are in Sanskrit and Hindi, unani texts in Arabic and Persian and siddha texts in Tamil and putting them together, along with photographs of the plants, in different international languages. The government is also making a digital database of 150 yoga postures and their therapeutic properties.

AYUSH officials say so far 1,20,000 ayurveda and unani database has already been complied and work on siddha texts is on. The Phase-I documentation will be complete by December this year but the directory will be an ongoing process and new entries will continue to be made at later stages.

US laws

There are fears however that by the time the documentation is completed, it might be too late. And all that belongs to India may already have migrated to some western country. Says Vandana Shiva, "Creating a digital document is no solution. In fact, this will only make public the huge traditional wealth India has and make it simpler for the western world to grab it. If India is really serious about protecting its traditional knowledge, the matter needs to be taken up by the government at the WTO level to press for changes in the US patent laws."

What she suggests is a multi-pronged strategy if the government really wants to save its traditional medicines and techniques from bio-piracy in future. "Right now zero money is spent on ayurvedic and traditional medicine research in the country. At the individual level, the government needs to promote the traditional knowledge domestically and spend a good 50 per cent of the health budget in R&D.

And the government needs to show its strength at the WTO. It should forcefully stress on the point that US patent laws need to be changed to give India adequate protection against bio-piracy. The US laws should fit with fair and honest global IPR and protect India and other countries prone to bio-piracy," she asserts.

The WTO, established to set up a multi-lateral rule-based system, has a role in ensuring that injustice which bio-piracy is all about is removed from the IPR regimes of member countries, but as Vandana Shiva says, "So far India’s membership of the WTO has only been helpful for MNCs."

other disputes

IN the past there have been several disputes and litigations after patents were issued on some essentially Indian finds and products.

In 1995, the US patents office granted turmeric patent to two NRIs, working with the University of Mississipi Medical Center. Rhizomes of turmeric have been used for generations in Indian households. Turmeric, or haldi as we Indians know it, has properties that make it an effective ingredient in medicines, cosmetics and colour dyes.

The US revoked the patent after the Indian Council for Agricultural Research challenged that haldi was used in India for centuries to heal wounds and rashes and therefore its medicinal use was not a novel invention. Their claim was supported by documentary evidence of traditional knowledge, including ancient Sanskrit texts and a paper published in 1953 in the Journal of the Indian Medical Association. This was the first time a patent based on the traditional knowledge of a developing country was successfully challenged.

Another example of bio-piracy was the high-profile legal battle fought against the grant of patent on neem by European patents office as an anti-fungal product. A group of NGOs and representatives of farmers legally opposed the patent, arguing that the medicinal tree was part of traditional Indian knowledge. For this evidence had to be submitted that proved that neem seed extracts were known and used for centuries to protect crops in India and this was an indigenous knowledge that could not be patented.

The basmati patent, after which an extensive techno-legal fight ensued, is considered far more serious as struck where it hurt the most - the food security. Incidentally, as per Sahay, the attempt to patent basmati was made despite the fact that "rice is not god’s gift but developed over centuries by societies rich in biodiversity".

Actually it is all very simple. India and other developing countries with old civilisations have treasures of huge knowledge systems in which years and years of experimentation and validation have already gone in. The US has granted patents on several indigenous products like amla, gulmendhi, dudhi, karela etc.

Since formulations used for the treatment of human ailments from traditional knowledge are time-tested and are being practised for centuries, their reliability is unquestionable. The absence of prior available knowledge with international patent offices offers an easy opportunity to obtain patents.

"To put a new drug in the market would cost a drug company in the US $1 billion. But when attempts are made to patent age-old traditional medicinal plants like haldi or tulsi, centuries of foolproof experimentation and validation get stolen and $1 billion saved," explains Dr Sahay. After this all that needs to be done is market the product in a consumer-savvy way and wait for the cash to roll in.

There are several examples of attempts at bio-piracy of traditional knowledge from developing countries the world over. A well-know French company managed to patent the use of kava to reduce hair loss and stimulate hair growth. Kava is an important cash crop of the Pacific. Domesticated thousands of years back, it is highly valued as the source of the ceremonial beverage of the same name.

For generations, Shamans of indigenous tribes in the Amazon basin processed the bark of B. caapi Mort to produce a ceremonial drink known as ayahuasca. An American obtained plant patent over an alleged variety of B. caapi Mort, which he had collected from a domestic garden in Amazon. Organisations of the Amazon basin protested the move saying that the plant species was used in traditional medicine and cultivated for that purpose for generations.

Other examples include copyright to quinoa, a staple food crop for millions in the Andes; hoodia, which African tribesmen ate for thousands of years to stave off hunger and thirst on long hunting trips; phyllanthus amarus, used for ayurvedic treatment for jaundice; and Piper nigrum Linn used in ayurveda for vitiligo.

The misuse of collective traditional knowledge of age-old civilisations as proprietary knowledge for commercial profit is one of the major concerns of the developing world. In February 2002, India, China, Brazil, Indonesia, Costa Rica, Colombia, Ecuador, Kenya, Peru, Venezuela and South Africa — countries that are rich in biodiversity — signed an alliance to fight bio-piracy and press for rules protecting their people’s rights to genetic resources found on their land.

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