Traditional Knowledge as a Bar to Patenting

1An invention which is a part of traditional knowledge cannot be the subject matter of a patent. Similarly, an aggregation or duplication of known properties of traditionally known component or components is also excluded from patent protection. An invention based on traditional knowledge may be opposed or revoked under the Patents Act on the ground that the invention is anticipated. (Patents Act 1970, ss 25(1)(k) and 64(1)(q).) Clause 19 of the Doha Declaration provides that the Council for TRIPS shall review the implementation of the TRIPS Agreement and examine, among other things, the relationship between the TRIPS Agreement and the Convention on Biological Diversity, the protection of traditional knowledge and folklore, and other relevant new developments. The Biological Diversity Act 2002 imposes restrictions on obtaining patents with regard to any invention based on any research or information on a biological resource obtained in India. (Biological Diversity Act 2002, ss 6 and 19(2).) The said Act also restricts certain persons from dealing with any biological resource occurring in India or knowledge associated thereto for research or for commercial utilisation or for bio-survey and bio-utilisation. (Ibid, s 19(1).)

2A biotechnological invention which is traditional knowledge or which is an aggregation or duplication of known properties of traditionally known components, cannot be the subject matter of a patent under s 3(p) of the Patents Act.