REQUEST TO MAKE INDIAN PATENT INFORMATION PUBLIC

The petition: REQUEST TO MAKE INDIAN PATENT INFORMATION PUBLIC

Dear Mr. Prime Minister: With the 2005 amendments, the Indian patent regime has come a long way. Indeed, India is turning out to be a trendsetter of sorts. Asian countries such as the Philippines are in the process of modelling their patent regime on the Indian Patents Act.

Sadly however, the current state of affairs at the Indian patent office (IPO) leaves much to be desired. Whilst there are a number of issues for concern, we focus on two of the most pressing ones.

1. Creating Comprehensive Patent Database

Firstly, despite India’s IT prowess, we do not have a full-fledged electronic patent database as yet. As you can appreciate, such a resource is of tremendous value to all patent stakeholders—inventors, industry, policy makers, civil society, academicians and members of the public. Most importantly, it will be a blessing for patent examiners. Owing to their inability to readily access prior patent application, they are currently handicapped in their examinations.

Some information is made available electronically by the IPO, but this is far from ideal. Critical components of a patent application, such as the claims and the complete specification are not available. It bears noting that almost all the major patent offices worldwide provide comprehensive patent information via publicly accessible databases. It also bears noting that the National Informatics Center (NIC), an agency of the Ministry of Information Technology, was tasked with the responsibility of creating a comprehensive patent database. Despite receiving funds for this task from WIPO as far back as 1993-96, they have not been able to deliver!

2. Uploading Patent Office Decisions

Secondly, it is lamentable that patent office decisions are never published. Illustratively, there are over 7000 pharmaceutical applications to be examined and many of them are under opposition. The patent office has accepted or rejected several cases, relying in part on section 3(d), an innovative section unique to India.

Pharmaceutical patents impact not just the applicant and his/her opponent, but also the man/woman on the street interested in accessing affordable medicines—a sentiment that has formed the basis of our well thought out patent regime. You will therefore appreciate the importance of making these decisions public. Greater public scrutiny of patent office decisions is likely to spur more transparency and accountability.

Currently, one has to write to the patent office and specifically request individual decisions—a terribly inefficient way of doing things. Today, most decisions by Indian courts are uploaded onto their respective websites within few days of the judgment being handed down. We therefore request you to urge the concerned authorities to do the same for patent office decisions. It will interest you to know that patent office decisions were published for a short period in the 1990’s.

A revival of this trend is absolutely essential, albeit in an “electronic” format and in a more timely fashion. Here again, as you may know, most advanced patent jurisdictions have websites that contain such information. In short, a website detailing comprehensive patent information, including patent office decisions will create more transparency and make the IPO more accountable. It will also equip stakeholders with timely information on patents. This will in turn lead to a more informed use of the patent system and better policy suggestions.

We therefore humbly request you to take this up on a priority basis. You will appreciate that the two concerns outlined above are not very resource intensive. More importantly, they will be an excellent example of India leveraging its IT prowess to achieve a worthwhile public policy goal.

Thanking you, we remain, Most sincerely yours, Shamnad Basheer Mrinalini Kochupillai Aysha Shaukat Prashant Reddy Duncan Bucknell Sumathi Chandrasekharan For: SpicyIP CC: Dr. Sam Pitroda, Chairman,The National Knowledge Commission Mr Kamal Nath, Minister for Commerce and Industry Mr Kapil Sibal, Minister for Science and Technology Dr. Montek Singh Ahluwalia, Deputy Chairman, Planning Commission

WIPO Consults On Protecting Traditional Knowledge, Genetic Resources

By Catherine Saez

How best to protect traditional knowledge, traditional cultural expressions and genetic resources against misappropriation and misuse was the main theme of a recent community consultation in the form of a roundtable organised by the World Intellectual Property Organization (WIPO).

The WIPO event on 10-12 December came in response to “the strong level of interest expressed by many national authorities and community representatives in sharing experience and developing dialogue and cooperation on practical initiatives to build capacity for appropriate protection.” The event was announced two weeks before it took place. WIPO said it aims to strengthen the practical capacity of holders of traditional knowledge (TK), traditional cultural expressions (TCEs, or folklore) and genetic resources (GR). It is preparing, among other things, a TK documentation toolkit, guidelines and a database for GR, and a creative heritage project.

The informal roundtable was organised around four workshops (creative heritage, TK and GR in the patent system, TK toolkit, and “customary law”) where participants were invited to share views and experiences. Work was then reported to all participants for discussion. Jacob Simet, rapporteur of the creative heritage session, said that “a great part of the problem could be addressed at the institutional and community level.” He said the misappropriation of TK and TCEs is worsened by tourism, thereby creating a dilemma for communities as it provides benefits while at the same time acting as an agent of misappropriation when, for example, tourists take photographs or film indigenous communities.

[TOURISTS AND INDUSTRY CANNOT MISAPPROPRIATE THAT WHICH NO ONE OWNS. UNLESS 'TRADITIONAL KNOWLEDGE' CAN BE REDUCED TO PATENTABILITY CRITERIA OR RECOGNIZED AS A 'TRADE SECRET', TWO FORMS OF PRIVATE INTELLECTUAL PROPERTY, THEN IT REMAINS IN 'THE COMMONS' AND IS OWNED BY NO ONE ]**

On the database project, participants on the closing day generally agreed that each country has a different level of examination and thus the database structure should be put together in a standardised and prescribed language taking into consideration local needs and focusing on the goals reflected in the recently adopted WIPO Development Agenda.

In the current system, patent examiners use an array of databases, according V K Gupta, a panel co-convener. “A system should be set up to ease the work of patent examiners,” he said, and suggested a systematic use of metadata, which provide greater detail. Many participants were concerned about protection of the database, which they said should not enter the public domain, but instead should be reserved for the sole use of patent examiners at the risk of betraying the trust of contributors. Xuan Li of the intergovernmental South Centre asked how the database was going to protect the rights of TK holders in cases such as Chinese traditional medicine that uses very complex plant preparations with over 20 ingredients. It would be very difficult to determine novelty in a patent application involving such products, she said.

Participants appeared to concur and said that patent examiners should be skilled and trained in different specialties. Li said that in the case of Chinese medicine it would be additionally difficult to examine a patent application given that China has 55 ethnic communities, each with their own preparations. The toolkit workshop synthesised the benefit and danger of documentation, according to participants.

The issue of confidentiality in particular was put forward as the group shared their questions about whose interest lies behind documentation, who is funding it and what kind of problem would arise if the databases were linked to funders. Brendan Tobin, rapporteur on the TK toolkit workshop, said that “if you can’t enforce the obligation of confidentiality, you need to take this into consideration.” He also said it was important to ensure that the TK databases are, in the main, established and maintained by communities, and that ownership of management structure should, where possible, be with local communities.

The potential danger of “catastrophic” disclosure, with the database “going wild on the Internet” also was a serious concern for the roundtable participants, with the effort to protect traditional knowledge possibly having, in this scenario, the reverse effect. According to WIPO’s Antony Taubman, the organisation has no initiative to establish a database but “would only ever work with existing initiatives, and would rather be a portal for access for patent examiners.” It should be a practical tool enhancing both protection and patent quality, he said.

WIPO has been working on different initiatives to address the issue of misappropriation of TK, TCEs and GR for the last five years, Taubman said. “WIPO wants to take it to the operational level,” he said, emphasising the organisation’s wish to produce non-binding guidelines meant to reflect best practices. The first phase of the guidelines, which currently are being written, is to reach out and solicit experiences and opinions. The first draft is expected to be released early next year. Roundtable participants recognised a need for capacity building and introducing safeguard mechanisms to protect the database. Manuel Ruiz from the Third World Network mentioned that the Honey Bee Database, which involves grassroots innovations, is an initiative that has won the trust of the communities. Catherine Saez may be reached at csaez@ip-watch.ch.