In first victory in India, Traditional Knowledge Digital Library (TKDL) database has been used to revoke a patent. Government of India revoked the patent granted to Avesthagen by Indian Patent Office (IPO) in April, 2012 on the grounds of being mischievous and prejudicial to the public. This patent was granted for “synergistic ayurvedic/ functional food bioactive composition”. Patent application for the same was 1076/ CHE/ 2007. The patent was for the composition consisting of jamun, lavangpatti and chundun and this composition was to be used for treatment of diabetes.
Indian Government made a huge cry when patent for the same application was to be granted in Europe but, they were ignorant about the same patent being in filing procedural in India. Council of Scientific and Industrial Research (CSIR) who have developed TKDL database was so propelled to stop Avesthagen patent in Europe but did nothing when it was granted in India.
Avesthagen filed for a patent in European Patent Office (EPO) for the above said composition but when the examiners checked the patent with TKDL database, they provided a report due to which the patent was not granted. The report said that patent did infringe upon TKDL. CSIR had made individual intervention for the same.
In April, 2012 a patent was granted to Avesthagen and this was the same patent which was rejected by EPO. IPO said that they did not have access to TKDL database that is why their examiners approved the patent. But it is so sad to know that on one hand Indian Government is trying to safeguard its traditional knowledge all around the world but the same Government is doing nothing for saving traditional knowledge (TK) in own country.
Government on getting knowledge about the same revoked patent using Section-66 of Patents Act, 1970 which is:
Revocation of patent in public interest- Where the Central Government is of opinion that a patent or the mode in which it is exercised is mischievous to the State or generally prejudicial to the public, it may, after giving the patentee an opportunity to be heard, make a declaration to that effect in the Official Gazette and thereupon the patent shall be deemed to be revoked.
Government of India stated in revocation that the use of Jamun for the treatment of diabetes have been long known to India and thus the extract of Jamun will also give effective therapeutic activity for diabetes. Thus, this patent infringes on TK knowledge of India.
NOT AN EASY DECISION FOR GOVERNMENT
It was not an easy decision for the Government as Avesthagen did argued stating that it might be a TK that these plants are used for treating diabetes but it was not known that when given in combination they shows an aggressive effect. They also stated that the formulating the medicine they have used an approach which is “innovative, noble and scientific” and screened the medicine for efficacy and safety using modern technology.
On patent being prejudicial to people, company said that the invention was novel and provided scientific validation to Indian TK and also said that they will support Indian farmers, from whom the plant was bought and will provide employment to people.
A patent lawyer in an interview to Financial Express had said: “We should put our own house in order before pointing fingers at others. The truth is that the facility of pre-grant objection to a patent that the Indian law provides is a much more powerful weapon in the hands of independent people who want to raise objection to a patent grant, compared to the third-party intervention that EPO allows. What escapes reason is why CSIR did not oppose the Avesthagen’s application at a pre-grant stage.”
Some of the major cases where government has intervened for the cancellation of patent at different patent offices include:
1. Turmeric case in USPTO
2. Neem extract case in EPO
According to Soma Das and Timsy Jaipuria Indian government is looking forward to weed out more patents on the basis of TKDL.