DR.

SHAKUNTALA MISRA NATIONAL REHABILITATION UNIVERSITY

LUCKNOW

PROJECT ON
(The effects of protecting traditional knowledge)

(UNDER THE SUPERVISION OF ASST.)

INTELLECTUAL PROPERTY RIGHT-II

SUBMITTED TO: SUBMITTED BY:

ASST. PROF.
FACULTY OF LAW
ROLL NO: 62
DSMNRU,
LUCKNOW B.COM.LL.B(HONS*)
3nd YEAR (6th sem)
TABLE OF CONTENTS
1. Introduction.
2. Definition of traditional knowledge.
3. Importance and scope of traditional knowledge.
3.1 scope of TK
3.2 limitation of TK
4. Protecting of traditional knowledge.
4.1 reason of protection
4.1.1 equity
4.1.2 conversion
4.1.3 promoting use and development
4.2 methods of protecting and conversing of TK
5. Challenges in protecting traditional knowledge.
6. Sources of traditional knowledge.
7. Biopiracy or traditional knowledge.
8. Strategies.
8.1 application of existing IPRs
8.2 designing an IPRs sui genic regim.
8.3 Enforcing customary laws.
9. Conclusion
10. References / Bibliography
 AKNOWLEGEMENT

I would like to express my gratitude towards our honourable Intellectual Property Rights teacher
Asst. Pro. Shail Shakya, who has given us such a wonderful topic to make a project. Lastly, I
would like to thank all those were there either directly or indirectly related with me and helped
me while making the project.
 INTRODUCTION

TRADITIONAL knowledge (TK) is a term generally applied for any knowledge generated
outside the context of modern western knowledge and covers a large amount of distinct
subcategories, which in extreme cases might have little or nothing in common1. TK can involve
cultural expressions, ecology, agriculture, medicine, construction technologies, environment, etc.
and have generally been passed on from generation to generation pertaining to a particular
people or territory, and is constantly evolving in response to the changing environment. It may
be written down or transmitted only orally. TK can be held by individuals, communities or
society as a whole. TK can make an important contribution to analyse the environmental
conditions within a specific region as it is indigenous to specific geographical areas. However,
TK is at the risk of becoming extinct because of the rapidly changing natural environments, fast-
paced urbanization, invasion of technology, lack of awareness and language barriers.
Preservation of TK is vital as it can contribute largely towards developing improved strategies by
identifying cost-effective and sustainable mechanisms. Traditional knowledge can be integrated
with scientific knowledge or it can be used as a basis for new research projects in the broad
context of sustainable development. Modern technologies can be more successful and sustainable
if TK is taken into consideration.

India is rich in genetic resources and associated traditional knowledge and has been identified as
one of the countries with mega biodiversity. Traditional knowledge has been used for centuries
by Indian indigenous and local communities and has been the mainstay of their existence,
especially in key sectors of food and health. In addition, TK also plays a vital role in the
conservation of biodiversity in the country.
Recently, international attention has turned to the use of intellectual property laws to preserve,
protect and promote traditional knowledge. Three broad approaches have been developed. The
first emphasizes protecting traditional knowledge as a form of cultural heritage. The second
looks at the protection of traditional knowledge as a collective human right. The third, taken by
the World Trade Organization (WTO) and the World Intellectual Property Organization (WIPO)
investigates the use of existing or novel measures to protect traditional knowledge2.
Recognizing traditional forms of creativity and innovation as protectable intellectual property
would be an historic shift in international law, enabling indigenous and local communities as
well as governments to have a say over the use of their traditional knowledge by others. This
would make it possible, for example, to protect traditional remedies and indigenous art and
music against misappropriation, and enable communities to control and benefit collectively from
their commercial exploitation.
 India and Traditional Knowledge

India is a country, which has been nurturing a tradition of civilization over a period of about
5,000 years. India’s ancient scriptures consist of the four Veda, 108 Upanishads, 2 epics,
Bhagavad-Gita, Brahma sutras, eighteen Puranas, Manusmriti, Kautilya Shastra and smritis.
Biologically speaking, India is one of the 12 most biodiverse countries of the world. With only
2.4 percent of the world’s land area, India accounts for 7 to 8 percent of the recorded species of
the world. India’s diversified a gro-climatic nature is a blessing. The whole world has 26 agro-
climatic zones and India alone has 16 agro-climatic zones. India’s diversified agro-climatic
zones start from the Trans-Himalayan region to the coastal areas of Kerala, Andaman and
Nicobar, which are home to a varied range of medicinal plants like herbs, shrubs, tubers,
mangroves and rhizomes. The Botanical Survey of India and the Zoological Survey of India have
recorded over 47,000 species of plants and 81,000 species of animals.
This multitude of natural wealth has created a renewed interest in the traditional medicinal
system, which includes the Unani, Yoga, Ayurveda, Homeopathy and Siddha systems. The
Ayurveda is the oldest and most effective of these alternative systems of medicine. The ancient
scriptures of the Ayurveda are full of instances where herbs with medicinal properties were used
not only for curative purposes but also for increasing physical and mental efficiency.
Traditional knowledge is mainly of a practical nature, particularly in such fields as agriculture,
fisheries, health, horticulture, and forestry. Many widely used products, such as plant-based
medicines and cosmetics, are derived from traditional knowledge. Other valuable products based
on traditional knowledge include agricultural and non-wood forest products as well as
handicrafts.
 DEFINING TRADITIONAL KNOWLADEGE

Is a precise definition of TK a precondition for any international negotiation on its possible

protection or promotion? The different nature and forms of expression of the information
embraced by TK, can make it difficult to agree on a legally and scientifically acceptable
definition. Indeed, TK is one of several terms used to describe broadly the same subject matter.
WIPO currently uses the term to refer to tradition- based literary, artistic or scientific works;
performances, inventions, scientific discoveries, designs, marks, names and symbols,
undisclosed information and all other tradition-based innovations and creations resulting from
intellectual activity in the industrial, scientific, literary or artistic fields5. The difficulty in
defining TK should not be an obstacle to elaborating the conditions for the protection of such
knowledge6. Patent law only defines the requirements for protection (novelty, inventive step,
industrial applicability), while patents may refer to inventions in mechanical, chemical,
electronics, biological and many other fields. Similarly, trade secrets involve any secret and
commercially valuable information, and no further definition about their content is required for
their legal protection. In TK, an operational concept may be based on the source of the
knowledge (traditional and indigenous communities) and on its cultural specificity, rather than
on the specific content of its components. For instance, “mola” is a traditional handmade textile
work manufactured by cutting and stitching several layers of cloth to form a multicolored
product. The “molas” have been traditionally produced by the native Kuna communities in
Panama. Although imitations have been produced in Taiwan, “mola” clearly is a product of
Kuna’s traditional knowledge which was developed as an expression of their own culture.

THE IMPORTANCE AND SCOPE OF TRADITIONAL KNOWLEDGE

THE IMPORTANCE :-

Traditional and indigenous knowledge (TK) has been used for centuries by indigenous and local
communities under local laws, customs and traditions. It has been transmitted and evolved from
generation to generation. TK has played, and still plays, an important role in vital areas such as
food security, the development of agriculture and medical treatment. However, Western societies
have not, in general, recognised any significant value in TK nor any obligations associated to its
use, and have passively consented to or accelerated its loss through the destruction of the
communities’ living environment and cultural values. Recently, Western science has become
more interested in TK and realised that TK may help to find useful solutions to current problems,
sometimes in combination with “modern” scientific and technological knowledge. Despite the
growing recognition of TK as a valuable source of knowledge, it has generally been regarded
under Western intellectual property laws as information in the “public domain”, freely available
for use by anybody. Moreover, in some cases, diverse forms of TK have been appropriated under
intellectual property rights by researchers and commercial enterprises, without any compensation
to the knowledge’s creators or possessors.
TK is a central component for the daily life of millions of people in developing countries.
Traditional Medicine (TM) serves the health needs of a vast majority of people in developing
countries, where access to “modern” health care services and medicine is limited by economic
and cultural reasons. For instance, the per capita consumption of TM products is, in Malaysia,
more than double that of modern pharmaceuticals. TM is also significant in more advanced
developing countries such as South Korea, where the per capita consumption of TM products is
about 36% more than modern drugs9. It is often the only affordable treatment available to poor
people and in remote communities.

The importance of TK for its creators and for the world community at large, and the need to
foster, preserve and protect such knowledge, has gained growing recognition in international
fora. Thus, in 1981 a WIPO-UNESCO Model Law on Folklore was adopted; in 1989 the concept
of “Farmers Rights” was introduced in the FAO International Undertaking on Plant Genetic
Resources8; in 1992 the Convention on Biological Diversity (CBD) specifically addressed the
issue (article 8(j)). In 2000, an Intergovernmental Committee on Intellectual Property and
Genetic Resources, Traditional Knowledge and Folklore was established by the World
Intellectual Property Organisation (WIPO) and it first met in April 2011.

THE SCOPE :-

TK encompasses very different types of knowledge. These may be distinguished by the elements
involved, the knowledge’s potential or actual applications, the level of codification, the
individual or collective form of possession, and its legal status. The desire to protect TK has
generated a significant body of literature and many proposals of regulation and for action in
different international fora. Precisely how TK is defined has important implications for the kind
and scope of a possible protection regime.

TK includes, for example, information on the use of biological and other materials for medical
treatment and agriculture, production processes, designs, literature, music, rituals, and other
techniques and arts. This broad set includes information of a functional and of an aesthetic
character, that is, processes and products that can be used in agriculture or industry, as well as
intangibles of cultural value. Mostly, TK comprises of knowledge which has been developed in
the past, but which still continues to be developed. Most TK is, in effect, of non-contemporary
nature; it has been used for generations and in many cases collected and published by
anthropologists, historians, botanists or other researchers and observers. However, TK is not
static; it evolves and generates new information as a result of improvements or adaptation to
changing circumstances.
The context of TK varies significantly and its forms of expression. Some TK is codified, that is,
formalised in some way (eg textile designs, ayurveda traditional medicine). A great part of TK,
however, is non-codified or tacit, such as, “folk”, “tribal” or “indigenous” medicine, which is
based on traditional beliefs, norms and practices accumulated during centuries old experiences of
trial and error, successes and failures at the household level, and passed to successive generations
through oraltradition.

TK may be possessed by individuals (eg healing practices and rituals), by some members of a
group, or be available to all the members of a group (“common knowledge”), for example with
knowledge on herbal-home remedies which is held by millions of women and elders. When its
application, and in particular the delivery of TK-based products, can be made through
commercial channels TK may be of commercial value. While some TK can be used and
understood outside its local/traditional/communal context, this is not always the case. There are
often spiritual components in the TK peculiar to each community. Knowledge that cannot be
utilised beyond its communal context has little or no commercial value, despite the value that
such knowledge may have for the life of the originating community.

PROTECTING OF TRADITIONAL KNOWLEDGE

Several proposals have been made, within and outside the IPRs system, to “protect” TK. Such
proposals often fail to set out clearly the rationale for its protection. Any system of protection,
however, is an instrument for achieving certain objectives. Therefore, a fundamental question,
before considering how TK may be protected, is to define why it should be.
Two types of intellectual property protection are being sought:

Defensive protection

aims to stop people outside the community from acquiring intellectual property rights over
traditional knowledge. India, for example, has compiled a searchable database of traditional
medicine that can be used as evidence of prior art by patent examiners when assessing patent
applications. This followed a well-known case in which the US Patent and Trademark Office
granted a patent (later revoked) for the use of turmeric to treat wounds, a property well known to
traditional communities in India and documented in ancient Sanskrit texts. Defensive strategies
might also be used to protect sacred cultural manifestations, such as sacred symbols or words
from being registered as trademarks.

Positive protection is the granting of rights that empower communities to promote their
traditional knowledge, control its uses and benefit from its commercial exploitation. Some uses
of traditional knowledge can be protected through the existing intellectual property system, and a
number of countries have also developed specific legislation. However, any specific protection
afforded under national law may not hold for other countries, one reason why many indigenous
and local communities as well as governments are pressing for an international legal instrument .
WIPO’s work on traditional knowledge addresses three distinct yet related areas: traditional
knowledge in the strict sense (technical know-how, practices, skills, and innovations related to,
say, biodiversity, agriculture or health); traditional cultural expressions/expressions of folklore
(cultural manifestations such as music, art, designs, symbols and performances); and genetic
resources (genetic material of actual or potential value found in plants, animals and micro-
organisms).
Reasons For Protection
One reason for a lack of clarity about the rationale for protection stems from the different
meanings given to the concept of protection. Some understand this concept in the context of
IPRs, where protection essentially means to exclude the unauthorised use by third parties. Others
regard protection as a tool to preserve traditional knowledge from uses that may erode it or
negatively affect the life or culture of the communities that have developed and applied it.
Protection here has a more positive role in supporting TK-based communities livelihoods and
cultures, as proposed by the Organisation of African Unity’s (OAU’s) Model Law and its
definition of community rights .Overall, however, the main arguments for granting protection to
TK include:

Equity

The underlying concept in many proposals for the protection of TK is based on equity
considerations. TK generates value that, due to the system of appropriation and reward currently
in place, is not adequately recognised and compensated. The protection of TK would, therefore,
be necessary to bring equity to essentially unjust and unequal relations.
The basic point in this criticism is that traditional/indigenous farmers are not paid for the value
they deliver, since breeders and seed companies are not charged a price for the samples they
obtain, and neither is there any later compensation or sharing of benefits with the farmers. A
similar argument applies to other intangible components of TK. For regulatory purposes a
distinction may be made between access to and use of genetic resources vis-à-vis access to and
use of TK. For instance, national access legislation some cases applies to genetic resources only,
while in others it also covers TK as an intangible component.

Conservation
A second factor underlying the claim for protection of TK is based on the importance of such
knowledge for conservation purposes. Thus, maintenance of biological diversity in farming
systems generates value for the global community. IPRs might be used to generate income to
sustain activities that would otherwise be abandoned. If traditional farmers for example,
abandoned the use and breeding of farmers’ varieties attracted by the higher income obtainable
through planting higher yielding modern varieties then a serious loss of biodiversity could
occuri. However, on the conceptual level, it is doubtful whether the protection of farmers’
varieties under an IPRs system would have any positive impact on their conservation or stimulate
breeding activity, and whether protection would serve the purpose of strengthening the rights of
communities and traditional farmers over their resources. Under this approach, the protection of
TK helps meet society’s broader objectives for the conservation of the environment, sustainable
agriculture and food security.
Promoting Use And Development

The promotion of the use of TK is an important objective in itself. Article 8 (j) of the CBD, often
quoted in relation to the protection of TK, requires the promotion of the “wider application” of
TK. It may be argued that protecting TK against loss and misappropriation, or ensuring
compensation to TK holders , are necessary elements to stimulate the broader use of such
knowledge. Protection may be, in this context, a tool for facilitating access to TK21. Some form
of protection may create the basis of trust required for the local/indigenous communities to part
with their knowledge, and improve their position to obtain value from it22. If some rights were
recognized , knowledge holders may be more prepared to provide access to their knowledge and,
if fairly compensated, they will have more incentives to conserve it and ensure future access.

Promoting development may also be a fundamental motivation behind protecting TK from

destruction and loss. TK is an under utilise resource in the development process23. Legal
protection may help to exploit the opportunities of TK-based products and services24. TK may
also be a critical resource for strengthening local innovation, and innovation is important for
reinforcing (even rebuilding) local cultures25.

Methods of protecting and conserving TK

IPRs are seen as one possible means to “protect” TK. There are both ardent proponents and
critics of extending IPRs to the knowledge of indigenous and traditional communities, including
landraces. Those who advocate the application of IPRs to TK find that there are many examples
of TK that are or could be protected by the existing IP system, or by modifying certain aspects of
the current forms of IPRs protection26. Those who are reluctant or opposed to the idea of
applying existing IPRs or creating a new form of IPRs to protect TK base their arguments on
both practical reasons and principles, namely the essential incompatibility between the concepts
of Western IPRs and the practices and cultures of local and indigenous communities27. For some
opponents, bringing communities and their resources into the fold of the market economy could
overwhelm and ultimately destroy those societies28. Others argue that, given the difficulties
inherent in establishing IPRs protection for TK, national IPRs legislation and international
conventions should just ensure that such knowledge is not unduly appropriated and preserved
outside the IPRs system.

CHALLENGES IN PROTECTING TRADITIONAL KNOWLEDGE

A patent is given for the innovation or invention that is novel and commercially viable. TK is
known for a long period of time and hence lacks novelty, involves no inventive step and the
restriction of ownership within communities does not make TK commercially viable. Traditional
knowledge is created and owned collectively by the community and its use and transfer is guided
by traditional laws and customs, whereas Intellectual Property Rights (IPRs)29 are largely
individual rights based on western legal and economic parameters as well as western property
law that emphasizes exclusivity and private ownership, reducing knowledge and cultural
expressions to commodities that can be privately owned by an individual or a corporation
Today’s IPR regimes also do not have any mechanism to protect or reward the public-domain
foundations on which the innovations may be based31. For, e.g. a small change made in earlier
art and a new use for an existing product are independently patentable

SOURCES OF TRADITIONAL KNOWLEDGE

Existence of TK can be broadly divided into two categories – recorded and oral knowledge.
Recorded knowledge is often referred as codified and is available mainly in the form of ancient
texts and books. Contemporary books, journals and reports that focus on TK are also the sources
of recorded knowledge. Another significant category of TK is the oral knowledge that is not
recorded or codified anywhere. It is widely dispersed; remains confined to the local communities
and is transferred only orally from generation to generation. Identifying and preserving oral
knowledge needs utmost attention as it is the basis of livelihood for many indigenous
communities and the threat is not only towards losing it but also because of its gross misuse by
corporate and private parties.

BIOPIRACY OF TRADITIONAL KNOWLEDGE

Traditional knowledge has always been an easily accessible treasure and thus has been
susceptible to misappropriation. The traditional knowledge, particularly, related to the treatment
of various diseases has provided leads for development of biologically active molecules by the
technology rich countries. In other words, traditional knowledge is being exploited for bio
prospecting. Also Traditional knowledge is often misappropriated, because it is conveniently
assumed that since it is in public domain, communities have given up all claims over it.
Biopiracy can be defined as the stealing of biomedical knowledge from traditional and
indigenous communities or individuals. The term can also be used to suggest a breach of a
contractual agreement on the access and use of traditional knowledge to the detriment of the
provider, and also applies to bioprospecting without the consent of the local communities.

Biopiracy: the Indian Experience

In 2000, CSIR found that almost 80 per cent of the 4,896 references to individual plant based
medicinal patents in the United States Patents Office that year related to just seven medicinal
plants of Indian origin. Three years later, there were almost 15,000 patents on such medicines
spread over the United States, UK, and other registers of patent offices. In 2005 this number had
grown to 35,000, which clearly demonstrates the interest of developed world in the knowledge of
the developing countries. Conveniently, none of the patent examiners are from developing
countries, allowing a virtual free pass to stealing indigenous knowledge from the Old World.

Biopiracy – the misappropriation of TK

“Bio-piracy” has been defined as the process through which the rights of indigenous cultures to
genetic resources and knowledge are “erased and replaced for those who have exploited
indigenous knowledge and biodiversity”a. In fact, a large number of patents have been granted
on genetic resources and knowledge obtained from developing countries, without the consent of
the possessors of the resources and knowledge.

STRATEGIES

1)Application of existing IPRs:-

Some elements of traditional medicine may be protected under patents. Patents have been
granted on natural components, as well as on combinations of plants for therapeutic use34. “The
variety shall be deemed to be new if, at the date of filing of the application for a breeder’s right,
propagating or harvested material of the variety has not been sold or otherwise disposed of to
others, by or with the consent of the breeder, for purposes of exploitation of the variety (i) in the
territory of the Contracting Party in which the application has been filed earlier than one year
before that date, and (ii) in a territory other than that of the Contracting Party in which the
application has been filed earlier than four years or, in the case of trees or of vines, earlier than
six years before the said date”.

Most laws require, as a condition for protection,35 that the person in control of the information
adopt the steps necessary, under the relevant circumstances, to keep the information confidential.
In other words, there should be deliberate acts aimed at protecting, as secret, the relevant
information. This may happen in certain cases of possession of TK (eg by tribal healers) but in
others (eg plant varieties) the communities’ practice is generally to permit and even promotethe
exchange and use of the knowledge by other farmers.

2)Designing an IPRs sui generis regime

Another approach, that has been strongly advocated by some academics and many NGOs, would
be the development of a sui generis regime of IPRs, that is, a legal regime “of its own kind”
which is specifically adapted to the nature and characteristics of TK. A model of sui generis
national legislation that would give communities property-like rights over their collective
knowledge was developed by the Third World Network (Community Intellectual Rights Act) in
1994. discusses the OAU Model Law and there are also proposals made by some Latin American
countries for the adoption of a sui generis regime for TK in the context of the Free Trade
Agreement for the Americas36. Although this approach has received considerable attention in
the literature, little progress has been made in terms of actually implementing this kind of
protection. The establishment of a sui generis regime poses, in fact, many complex conceptual
and practical issues. Briefly these are.

• Definition of the subject matter of protection

• Requirements for protection
• Extent of rights to be conferred (rights to exclude, to obtain remuneration, to avoid
misappropriation)
• Title-holders (individuals/communities)
• Modes of acquisition, including registration
• Duration
• Enforcement measures
Single or multiple regimes:- If the sui generis route is adopted, a critical policy issue is whether
the search for a regime of protection of TK should aim at a single, comprehensive, regime
covering all manifestations of TK, or for a set of different, specific regimes adapted to the nature
of the subject matter to be protected. Development of a single regime requires dealing with quite
diverse subject matters (eg artistic works, farmers’ varieties, traditional medical methods) for
which it might be hard to define common rules. An alternative approach is to consider the
adoption of specific regimes for well-defined components of TK, such as for:
• artistic creations, including expressions of folklore;
• plant genetic resources for food and agriculture and associated knowledge;
• traditional medicine (TM).
WIPO have already done important work on folklore that could be revitalised under their
auspices and aim to promote the adoption of national laws and possibly an international
convention on the matter.
b)Rights conferred :- Any sui generis regime must define the nature of the rights conferred. In
most cases, IPRs grant exclusive rights, ie the faculty to prevent third parties from exploiting the
protected subject matter. Some types of IPRs, however, do not entail exclusivity. For instance,
the TRIPS Agreement does not require the granting of exclusive rights over undisclosed
information.
3)Enforcing customary laws
Finally, protection may be achieved by ensuring the enforcement of existing customary rules,
which - in accordance with evidence collected by WIPO - in some cases include elements
comparable to IPRs38. For instance, the draft “Biodiversity and Community Knowledge
Protection Act” of Bangladesh prohibits the violation of “Common Property Regimes” that
38 See also Valencia, 1998 include various rights, relations, arrangements and cultural practices,
whether or not they have legal expressions or recognition, by which communities own, use and
have access to biological and genetic resources39.

4) Impact on intended beneficiaries

Given the great number and cultural diversity of traditional and indigenous communities, and the
different components of TK, it is extremely difficult to identify the concerns of the intended
beneficiaries of new systems of protection. For many such communities, the application of IPRs-
like concepts, particularly, monopolistic rights, is essentially in contradiction to their beliefs and
practices, based on openness and sharing of knowledge40. However, there might be cases (for
instance, in the area of TM) where the control of knowledge (often on the basis of rituals)
through IPRs41 would be acceptable and desirable for the possessors of TK. Reviews of
anthropological literature reveal that concepts close or equivalent to individual forms of IPRs are
quite common in indigenous and traditional proprietary systems42.
CASE STUDY

YahooIndia.com:

This is a case related with domain name. Similarly in a trademark infringement case in 1999
brought up by Yahoo Inc, the Delhi High Court ruled that trademark laws are just as valid on the
Internet as in the physical world. Yahoo Inc. filed a suit against Akash Arora and Netlink
Internet Services, accusing the two of passing off their services on the Internet through their
adoption of the domain name “Yahooindia.com”.
The court rejected the defendants’ arguments, noting that –
Using the same names will result in confusion and deception where the parties are in the same
or similar business line.
A very alert vigil is a must and a strict view should be taken where there is copying over the
Internet because of its easy accessibility.
Trademark law is applicable with equal force on the Internet as it is in the physical world.
Putting a disclaimer that the defendants have nothing to do with Yahoo! did not reduce the
chances of deception and confusion.

Such cases are on a continual increase.

Protection of Undisclosed Information

The protection of trade secrets and undisclosed information is an area that is attracting a lot of
attention. Article 39 of TRIPs includes minimum standards for the protection of undisclosed
information and data submitted to governments or governmental agencies as required in the case
of pharmaceutical and agricultural chemical products, which utilize new chemical entities.
Undisclosed information in the form of trade secrets is also protected under this article.
Though employment contracts broadly cover clauses on confidentiality of information, most
business houses and institutions do not take adequate care of information security procedures
within their organizations. The emerging trend is that companies are requiring their employees to
sign invention assignment agreements in addition to confidentiality clauses as part of their
employment contracts.43

Motorola vs. Integrated Circuit Systems (ICS)

Motorola in July 1999, filed a lawsuit against ICS and several managers who left Motorola while
working in its Timing Solutions Operation, to set up a new ICS operation. Motorola’s complaint
was that ICS did this to gain access to Motorola’s business and technical trade secrets and that
the managers who left, had breached fiduciary duties and misappropriated trade secrets. Though
ICS and the former Motorola managers denied the allegations, a settlement was reached on
March 27, 2000, where Motorola agreed to:
dismiss the lawsuit in exchange for the defendants’ agreement to make an undisclosed
monetary payment,
refrain from using or disclosing Motorola’s confidential information, and to refrain from using
certain design technologies for limited time periods,
restrict further hiring and solicitation of Motorola employees and
grant Motorola certain rights to use certain ICS intellectual property44.
Walmart vs Amazon.com:
Walmart had filed a suit in a US Court against Amazon.com, claiming that Amazon was
attracting executives and employees of Walmart, together with their consultants, to access the
trade secrets of Walmart. The case was settled in 1999. Under the terms of the settlement,
Amazon agreed to reassign some of its employees where their knowledge of Walmart’s
operations would not be used. Limits were also placed on the projects to which the former
Walmart workers were involved in Amazon’s operations45.

Cases of Biopiracy in India

Turmeric: The rhizomes of turmeric are used as a spice for flavouring Indian cooking. It also
has properties that make it an effective ingredient in medicines, cosmetics and dyes. As a
medicine, it has been traditionally used for centuries to heal wounds and rashes. In 1995, two
expatriate Indians at the University of Mississippi Medical Centre (Suman K. Das and Hari Har
P. Cohly) were granted a patent (no.5, 401,504) on use of turmeric in wound healing. The
Council of Scientific & Industrial Research (CSIR), India, New Delhi filed a re-examination case
with the US PTO challenging the patent on the grounds of existing of prior art. CSIR argued that
turmeric has been used for thousands of years for healing 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 text and a paper published in 1953 in the
Journal of the Indian Medical Association.

Neem:

Neem extracts can be used against hundreds of pests and fungal diseases that attack food crops;
the oil extracted from its seeds can be used to cure cold and flu; and mixed in soap, it provides
relief from malaria, skin diseases and even meningitis. In 1994, European Patent Office (EPO)
granted a patent (EPO patent No.436257) to the US Corporation W.R. Grace Company and US
Department of Agriculture for a method for controlling fungi on plants by the aid of hydrophobic
extracted Neem oil. In 1995, a group of international NGOs and representatives of Indian
farmers filed legal opposition against the patent. They submitted evidence that the fungicidal
effect of extracts of Neem seeds had been known and used for centuries in Indian agriculture to
protect crops, and therefore, were unpatentable. In 1999, the EPO determined that according to
the evidence all features of the present claim were disclosed to the public prior to the patent
application and the patent was not considered to involve an inventive step. The patent granted on
was Neem was revoked by the EPO in May 2000.
Basmati Rice: Rice Tec. Inc. had applied for registration of a mark “Texmati” before the UK
Trade Mark Registry. Agricultural and Processed Food Exports Development Authority
(APEDA) successfully opposed it. One of the documents relied upon by Rice Tec as evidence in
support of the registration of the said mark was the US Patent 5,663,484 granted by US Patent
Office to Rice Tec on September 2, 1997. This US utility patent was unique in a way to claim a
rice plant having characteristics similar tothe traditional Indian Basmati Rice. It was challenged
and later revoked by USPTO46.
BIBLIOGRAPHY
REFERENCES FROM THE INTERNET
1. http://www.wipo.int
2. http://www.tansey.org.uk
3. https://scholar.google.co.in
REFERENCES FROM ARTICLES & PDFs
1. Traditional Knowledge and Intellectual Property
2. PROTECTING TRADITIONAL KNOWLEDGE: THE INDIAN EXPERIENCE
3. Intellectual Property Rights & Traditional Knowledge -Case Analysis
REFERENCS FROM THE BOOKS
1. Lexis nexis Law relating to intellectual property rights –V.K Ahuja
2. West legal studies intellectual property patent, trademark and copyright- Richrd Stim
3. Introduction to intellectual property right-Phundan Singh.