The New Yorker; October 26, 2015. The next time your neighborhood barista offers you a character sketch of the beans that went into making your Chemex pour-over, try asking him about biopiracy, the appropriation of indigenous knowledge of nature by corporations and other profit-seekers.
If you live in the United States, chances are he’ll give you a puzzled stare. But in parts of India, according to Shamnad Basheer, an attorney and scholar specializing in intellectual-property law, a similar scenario might play out differently. Basheer begins some of his classes with video footage of a tea seller in the Himalayan foothills speaking learnedly and at length on biopiracy. The video, he said, is indicative of a broader popular engagement with the issue. In the past fifteen years, many Indians have taken up the challenge of protecting traditional knowledge, cultural expression, and plant genetic resources with a fervor that is more commonly associated with cricket.
Back in July, the Indian media triumphantly reported a news item that escaped the attention of many of their American and European counterparts—the country’s successful challenge of two European Union patents awarded to Colgate-Palmolive. The multinational had claimed intellectual-property rights on a nutmeg-based mouthwash and an herbal toothpaste. These products worked—that much was undisputed. Indeed, their usefulness in promoting dental health had been known in Indian culture for several thousand years. (In the case of the toothpaste, the Colgate chemists’ only substantive modification was to make the recipe less abrasive.) And there lay the problem: patents, asChristopher Sprigman, a professor at New York University School of Law, told me, “are only supposed to be granted on inventions that are novel and nonobvious. It’s not supposed to go to the ninth guy who invents the wheel.” The formulas that Colgate-Palmolive had claimed as its own inventions were clearly no such thing, and the Indian government promptly—and, ultimately, successfully—contested them.
That it was able to do so was attributable in no small part to a multimillion-dollar initiative begun more than a decade ago: the Traditional Knowledge Digital Library. According to the T.K.D.L.’s creator, V. K. Gupta, the final straw for him and his colleagues was a patent that the United States granted, in 1995, to two researchers at the University of Mississippi Medical Center for the oral and topical application of turmeric to treat ulcers and surgical wounds. “The use of turmeric for healing wounds is known to every Indian,” Gupta said. “It is also in several of our ancient texts.” And yet the battle to overturn this and other patents—on a particular strain of basmati rice, on the use of neem oil as a pesticide—dragged on for the better part of a decade, with each case costing, Gupta estimated, between three million and five million dollars in legal fees.
The problem was one of information availability. “How is the guy in D.C. who is doing the novelty determination on a patent that claims neem oil as an antibacterial supposed to find some book in Sanskrit in a library in Bangalore?” Sprigman asked. “It’s a legitimate defense,” Basheer said. Or it was, before the creation of the T.K.D.L. In 2000, at the behest of the Indian government, Gupta assembled a team of about two hundred linguists, patent examiners, botanists, information architects, I.T. specialists, and practitioners from each of India’s traditional systems of medicine—Ayurveda, Unani, and Siddha. Over the course of eight years, the team distilled more than two hundred thousand medical treatments and their applications from some three hundred books, translating them into five languages: English, French, German, Japanese, and Spanish. This information was fed into a database, which, Sprigman said, was cleverly “organized according to existing prior-art classifications, so that patent examiners looking through it would find it familiar and would know where to look.” Then, Gupta said, he and his staff drew up agreements with the major international patent offices—in Australia, Canada, the European Union, Japan, and the United States—“to make all the information accessible to their examiners on a nondisclosure basis.”
“It was a mammoth task,” Basheer said. “But Gupta is a highly energetic man, so he was able to do it rather quickly and rather well.” Within a couple of years of gaining access to the T.K.D.L., the European Patent Office had cited it in thirty-six patent rejections; the United States had turned down forty. Not content, Gupta and his team sifted through patents that had already been granted, turning up two thousand instances of misappropriated traditional knowledge, including the Colgate-Palmolive patents. They began to contest them. “We have already achieved success in two hundred such cases,” he told me. “And I imagine that at least fifteen hundred or more cases will follow.” On the T.K.D.L. Web site, the team posts a list of major milestones: this year alone, claims have been withdrawn by Avon (for “compositions … improving the condition and appearance of skin”), Japan’s Morinaga Milk company (for an agent that inhibits blood-sugar spikes), and Britain’s Pangaea Laboratories (for a hair-loss tonic).
At present, the only people who can use the T.K.D.L. are patent examiners. “We created the library to prevent misappropriations, not to support misappropriations,” Gupta said. “If we give access, these multinationals will steal everything.” But Anant Darshan Shankar, the director of the Foundation for Revitalisation of Local Health Traditions, in Bangalore, believes that, instead, “it should be available to all biomedical, life-science, and pharmacy-related researchers, because this traditional knowledge has an enormous potential to improve health-care today.” Many existing drugs are derived from plants, and many more await discovery; according to the biodiversity nonprofit E.T.C. Group, contemporary bioprospecting is five thousand times more likely to result in a new drug if the process is guided by traditional knowledge, as opposed to random screening. Eventually, Gupta allowed, the library could become a tool for wider research—but only if Western corporations agree to strict benefit- and I.P.-sharing agreements with the Indian government.
Thus far, the T.K.D.L. would seem to be an unqualified success. But the question of who actually owns the information in the database is a thorny one. “The patent system is built to suit a very formalized R. & D. mechanism, where there is one inventor or a cohort of inventors working within a closed lab,” Basheer said. By contrast, among the traditional healers whom he knows, “there is no concept of an inventor.” Basheer said that he had recently received treatment from an Ayurvedic practitioner who believed that if he ceased to recognize himself as simply a conduit for healing power, his medicines would lose their efficacy. “This is not a concept that fits within a classical I.P. system,” he said. Wanting to make sure that a community benefits from its traditional knowledge seems like an obviously good thing, Sprigman said, but “turning something that was communal, and often sacred, into property—that just opens up a can of worms.” (His colleagues at N.Y.U. are experimenting with new forms of legal licensing that aim to help communities manage and share their traditional knowledge equitably.) If building the T.K.D.L. was a mammoth undertaking, so, too, will be the process of governing its use. “The real work has yet to begin,” Gupta said.