Flat on the patented Yoga mat
RAJESH KOCHHAR
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India’s strategy on patents arising out of traditional knowledge is flawed
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India gets very possessive about its traditional knowledge when somebody mentions it in papers filed before the U.S. patent and trademark office. But India does not draw on its own traditional wisdom while deciding on its response to contemporary issues. If it did, it would have been reminded of an old saying that there is no point in blaming individual loaves of bread when the defect lies in the oven.
U.S. patent laws are parochial and a relic of the 19th century when the U.S. was technologically inferior to Europe and against whose intellectual prowess it had to protect itself.
The U.S. does not grant a patent if the thing is documented anywhere in the world, or if it is common knowledge in the U.S. But if any one were to bring in common knowledge from outside the U.S. and present it as new, it would accept the claim and grant a patent.
America is not alone in protecting its interests through its laws. Europe had no compunction in granting a patent in 1738 to William Champion for zinc metallurgy, even though the process was known to have originated in India and reached Europe via China. India’s own laws till the other day helped its pharmaceutical industry to produce standard drugs at low cost.
Counter-productive
India’s response to the extant U.S. patent laws, when applied to traditional knowledge (TK) related issues, has been panicky, narrow, contradictory and counter-productive.
As reported in The Hindu recently, the U.S. has already granted more than 3,700 trademarks on Yoga accessories and 168 Yoga-related patents and copyrights. What are the issues involved, and where does India stand on these, apart fro
m the fact that Yoga originated in India?
It is a well established law in linguistics that once a foreign word is adopted by a language, its declension is determined by the latter. Similarly, if Yoga has been accepted into American culture, it is only natural for it to become a part of the economy also. If someone patents a pair of socks suitable for doing Yoga, or designs a mat which can be neatly folded and stored, what objection can anybody have? If some one copyrights a sequence of Yoga asanas (postures) and the temperature at which they should be performed, he is trying to protect his commercial territory from his competitors. For all these patents and trademarks, the constituency is the U.S.
There is indeed a basic question involved, which goes beyond Yoga. U.S. and European patent laws were framed when the world was Euro-centric. What do we do with them now that the world is Copernican (that is, without a centre or a benchmark)? India seems to be confused; it cannot decide whether it should object to the rat race or become a rat itself.
India gets frivolous U.S. patents cancelled with great fanfare, but then goes ahead and obtains similar patents with even greater fanfare because this will impress the home crowd.
The patent on the wound healing power of turmeric that India got cancelled in 1995 was a particularly silly one. Notwithstanding the triumphalism India indulged in, it would have made no difference whatsoever even if it had remained intact. What has largely gone unnoticed is that 300 patents have been granted on turmeric after the cancellation of the infamous patent; all have remained unchallenged and are probably unchallengeable. This is so because you can take some body else’s traditional knowledge, bring it to your sophisticated lab, identify the active ingredient and patent it.
Proactive approach
India’s strategy on patents arising out of traditional knowledge has been flawed. It has been focusing on proving that we have documentation for our TK. Much of India’s own TK must necessarily be unrecorded. Even where records exist, they were meant not as a legally rigorous treatise, but as an aid to oral transmission. Digitisation of TK can only prevent granting of frivolous patents, which, even if left alone, can neither benefit the “inventor” nor harm India. Digitisation may in fact act as an aid to researchers eyeing Indian TK as a guide to focused lab work.
India’s approach towards TK should be proactive rather than defensive. Instead of acting as a documentation assistant for others, it should molecularise its own tradition in healthcare and benefit therefrom under the present patent regime.
Earlier, India had provided the world with ethical leadership against colonial imperialism and apartheid. Now on this issue also, India should take a stand that goes beyond India. Most of TK resides in the third world countries and is largely undocumented. India should evolve a strategy that can be adopted by other countries as well.
Instead of trying to convince petty U.S. officials that our TK is indeed documented, India should try to work towards evolving a world consensus on the patentability of results of lab research which uses TK as the starting point.
Now that the U.S. is the solitary global power it should be persuaded to update its parochial and anachronistic patent laws and make them universal.
But even then, one suspects, Yoga socks or a Yoga mat will probably be still patentable.
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