INTELLECTUAL PROPERTY RIGHTS ISSUES AND GLOBAL

POSITIONING OF INDIA

SYNOPSIS:

 INTRODUCTION
 ORIGIN OF INTELLECTUAL PROPERTY RIGHTS
 GLOBAL INTELLECTUAL PROPERTY
 INTERNATIONAL ORGANIZATION, CONVENTIONS AND TREATIES
 PATENT
 PATENTABLE CRITERIA
 CASE STUDY
 TUMERIC PATENT CASE
 NEEM PATENT CASE
 BASMATI RICE PATENT CASE
 THE CONVENTION ON BIOLOGICAL DIVERSITY, 1992
 BENEFIT OF SHARING INTERNATIONAL OBLIGATIONS
 CONVENTIONS CONCERNING INDIGENOUS PEOPLE IN INDEPENDENT
COUNTRIES, 1986.
 GLOBAL POSITIONING OF INDIA
 CONCLUSION
INTRODUCTION:

The birth of intellectual property arose from the concept of protecting the product of
human creative endeavors. New technologies spurred the development of social and early legal
innovations that eventually coalesced into the beginning of a recognizable body of intellectual
property rights. There are three distinct types of property that individuals and companies can
own, such as, real property that refers to land or real estate; personal property that refers to
specific items and things that can be identified, such as jewellery, cars, and artwork; and
intellectual property refers to the fruits or product of human creativity, including literature,
advertising slogans, songs, or new inventions. Thus, property, the result of thought, namely, an
intellectual activity, is called intellectual property. In some foreign countries it is referred to as
industrial property. Intellectual property is generally thought to comprises four separate fields of
law: trademarks, copyrights, patents, and trade secrets.

THE ORIGIN OF INTELLECTUAL PROPERTY RIGHTS:

The concept of intellectual property dates all the way back to 500 BC. It came into
existence as the Greek state of Sybaris allowed its citizens to obtain a patent for “any refinement
in luxury”. Patent, trademark and copyright laws have become more complicated in the ensuing
centuries but the intent remains the same. The laws are created to encourage people’s creativity,
hence, paving the way for inventors to bring in the benefits of their original ideas.

GLOBAL INTELLECTUAL PROPERTY:

In the year 1883, the Paris Convention was created. This international agreement
provided protection to inventors in order to ensure that their inventions, even if used in other
nations, are secured. Later in the year 1886, the Berne Convention was initiated to provide a
scope for international protection of all forms of writing, including songs, drawings, operas,
sculptures and paintings. Meanwhile, in 1891, the trademark gained wider protection with the
establishment of Madrid Agreement. Subsequently, the offices that were created by the Paris
and Berne Conventions combined together to create the United International Bureaux for the
Protection of Intellectual Property (BIRPI), which eventually became the current day world
Intellectual property Organization, an office of the united nations.

INTERNATIONAL ORGANIZATIONS, AGENCIES AND TREATIES:

There are several international organizations and agencies that promote the use and protection of
intellectual property.

 International Trademark Association (INTA) is a not-for-profit international association

composed chiefly of trademark owners and practitioners. Nearly, more than 5,000 trademark
owners and professionals belong to INTA in more than 190 countries, together with the
others interested in promoting trademarks. INTA offers a wide variety of educational
seminars and publications, including many worthwhile materials available at no cost on the
internet.1

 World Intellectual Property Organization (WIPO) was established in the year 188 and is
a specialized agency of the United Nations, whose purpose is to promote intellectual property
throughout the world and to administer all the 24 treaties dealing with intellectual property
including the Paris Convention, Madrid Protocol, the Trademark Law Treaty, and the Berne
Convention. Nearly, more than 180 nations are members of WIPO.

 Berne Convention for the Protection of Literary and Artistic Works (the Berne
Convention) was created in the year 1886 under the great leadership of Victor Hugo to
protect literary and artistic works. It has more than hundred and sixty member nations in it.
The United Sates became a party to the Berne convention in the year 1989. The Berne
Convention is administered by WIPO and is based on the precept that each of the member
nations must treat other member nations like its own nationals for the purpose of the
copyright under the basic principle of “national treatment”.

1
Home page of INTA.http://www.inta.org.
 Madrid Protocol: the Madrid Protocol came into life in the year 1996 and allows trademark
protection for more than seventy countries, including all twenty-seven countries of the
European Union, by means of a centralized trademark filing procedure. The United States
implemented the terms of the protocol in the late 2003. This treaty facilitates a one stop, low
cost, efficient system for international registration in any number of member countries by
filing a single standardized application form with USPTO, in English, with a single set of
fees.
 Paris Convention: Paris Convention of 1883 is one of the first treaties or “conventions”
designed to address trademark protection in foreign countries which was adopted to facilitate
international patent ad trademark protection. The Paris Convention is based on the principle
of reciprocity wherein foreign trademark and patent owners may obtain, in a member
country, the same legal protection for their marks and patents as the citizens of those member
countries. Perhaps, the most significant benefit provided by the Paris Convention is that of
priority. An applicant for a trademark has six months after filing an application in any of the
170 member nations to file a corresponding application in any of the other member countries
of the Paris Convention and obtain the benefits of the first filing date. Subsequently, priority
is afforded for utility patent applications, although, the priority period is one year rather than
six months. The Paris Convention is governed by the World Intellectual Property
Organization (WIPO).

 North America Free Trade Agreement (NAFTA): The NAFTA came into effect on 1st
January, 1994, and is adhered to, by the United States, Canada, Mexico. The NAFTA
resulted in some differences to the United States trademark law, primarily with regard to
marks that include geographical terms.

 General Agreement on Tariffs and Trade (GATT): This was concluded in the year 1994
and is adhered to, by most of the major industrialized nations in the world. The most
significant changes to United States intellectual property law from General Agreement on
Tariffs and Trade are the non-use of a trademark for three years creates a presumption, that
mark has been abandoned and that the duration of a utility patent is now twenty years from
 the filing date of the application instead of the seventeen years from the date the patent was
issued.

PATENT:

The longest standing, best known and arguably, economically most valuable form of protection
of rights by the law of intellectual property comes in the form of the patent. A patent is a grant
from the United States government that permits its owner to prevent others from making, using,
importing, or selling an invention. Predominantly, patents are classified into three types:

 Utility patent
 Design patent
 Plant patent2

The utility patents are the most common patents and which cover useful inventions and
discoveries, such as the typewriter, the auto mobile, and genetically alter mice. Whereas, the
design patent usually covers the new, original and ornamental designs for articles such as
furniture and plant patent cover up the new and distinct asexually reproduced plant varieties such
as hybrid flowers or trees. Patent protection is available only for useful, novel and non-obvious
inventions. Generally, patent law prohibits the patenting of invention that is merely an
insignificant addition to or minor alteration of something that is already known. Moreover, some
items cannot be protected by patent like pure scientific principles. It is not an exaggeration to
state that intellectual property rights are a matter of life or death. This is most obvious in the case
of the patent protection of Acquired Immunodeficiency Syndrome (AIDS) – related medicines.
Since the late 1990s, pharmaceutical patents have been a lightning rod for criticisms of the
manner in which intellectual property rights function within the global system. Medicine,
science, agriculture, and pharmacology present the cutting-edge issues in patent law.

HISTORY OF PATENTS:

2
Introduction to intellectual property
The English colonial government considered introduction of patent laws in India at various times
from the 1830s onwards, generally prompted by requests from “Person who enjoyed patent
protection in England and who were about to export their patented products from England to
India3. India’s first patent law was introduced by the legislative council in 1859. It primarily
served to enable the English patent holder to acquire control over Indian markets 4. Instead of
granting patents which was done only by the queen, the act allows the exclusive privilege to
protect British inventions in India, only for a term of fourteen years.

Patentability Criteria: For a patent to be granted, three criteria must be met: novelty, inventive
step and industrial application. These criteria are more or less universally accepted and can also
be found in Article 27 of TRIPS which reads as follows,

 Article 275:

Patentable Subject Matter

1. Subject to the provisions of paragraphs 2 and 3, patents shall be available for any
inventions, whether products or processes, in all fields of technology, provided that they
are new, involve an inventive Step and are capable of industrial application. Subject to
paragraph 4 of Article 65, paragraph 8 of Article 70 and paragraph 3 of this Article,
patents shall be available and patent rights enjoyable without discrimination as to the
place of invention, the field of technology and whether products are imported or locally
produced.

3
Government of India Act 1985
4
P. Narayanan, as quoted in Mueller, 2007:17
5
2. Members may exclude from patentability inventions, the prevention within their territory of the commercial
exploitation of which is necessary to protect ordre public or morality, including to protect
human, animal or plant life or health or to avoid serious prejudice to the environment, provided that such exclusion
is not made merely because the exploitation is prohibited by their law.
3. Members may also exclude from patentability:
(a) diagnostic, therapeutic and surgical methods for the treatment of humans or animals;
(b) plants and animals other than micro-organisms, and essentially biological processes
for the production of plants or animals other than non-biological and microbiological processes. However,
Members shall provide for the protection of plant varieties either provisions of this subparagraph shall be reviewed
four years after the date of entry into force of the WTO Agreement
 by patents or by an effective sui generis system or by any combination thereof. The third
criteria, industrial application is not of great relevance to TK issues and is quite self-
explanatory, it simply requires that the invention can be used in any kind of industry
including agriculture as is presented in Article 56 EPC6.

Novelty: Article 54 of the European Patent Convention (EPC) defines novelty as:

(1) an invention shall be considered to be new if it does not form part of the state of the art.

(2) The state of the art shall be held to comprise everything made available to the public by
means of a written or oral description, by use, or in any other way, before the date of filing of the
European patent application.

If the subjected patent is said to have been published in any form oral or written or in use by
the public then it fails to appease the criteria of novelty which forms the basic ground for
patenting a product.

Inventive step: The EPC definition of inventive step (also known as non-obviousness) can be
found in article 56:

“An invention shall be considered as involving an inventive step if, having regard to the state of
the art, it is not obvious to a person skilled in the art…”

According to the EPO guidelines7 a person skilled in the art is an: “ordinary practitioner
aware of what was common general knowledge in the art at the relevant date. He should also be
presumed to have had access to everything in the "state of the art", in particular the documents
cited in the search report, and to have had at his disposal the normal means and capacity for
routine work and experimentation.”

6
An invention shall be considered as involving an inventive step if, having regard to the state of the art, it is not
obvious to a person skilled in the art. If the state of the art also includes documents within the meaning
of Article 54, paragraph 3, these documents shall not be considered in deciding whether there has been an
inventive step
7
Guidelines for Examination in the EPO, June 2005 edition, p. IV-22
 There should be some kind of inventiveness and new innovation to get the product to be
patented. The inventive step criterion is crucial in judging patentability, especially in terms of
patents which incorporate TK as they risk being granted when there is no real inventive step to
save the combination of Northern and Southern common knowledge. These two criteria is said to
have been accepted mostly by a Lion’s share.

What is Traditional Knowledge?

It is defined as follows:

“Which have generally been transmitted from generation to generation; are generally regarded as
pertaining to a particular people or its territory; have generally been developed in a non-
systematic way; and, are constantly evolving in response to changing environment.” 8
Exploitation of TK for industrial or commercial benefit can lead to its misappropriation and can
prejudice the interests of its rightful custodians. TK is collective knowledge of the whole
community and a single individual cannot claim a right over it. For many communities, their TK
entails a bundle of relationships and obligations rather than a bundle of economic rights as under
the common law property system.9

When this knowledge is exploited by a third party it leads bio-piracy. There is an African
proverb that “When an old person of knowledge dies, then whole library disappears.” The TK
belongs to the community who has preserved it for generations and it should be protected. India
is known for its rich tradition and unique culture. India faced several patenting of her
traditionally known products [TK] which they had to fight for and restore it. The landmark cases
are discussed below:

CASE STUDY:

Based on the above mentioned criteria, several patents are being rejected in terms of its
existence, relative prevalence and supposed sinister intentions. In an attempt to discern the legal

8
Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and
Folklore Elements of a Sui Generis System for the protection of Traditional Knowledge(March 29, 2002)
WIPO/GRTKF/IC/3/8
9
The Protection of Biodiversity and Traditional Knowledge in International Law of Intellectual Property by
Jonathan Curci.
reality of what has been labelled as biopiracy, three well-publicized cases will be studied. They
are:

 TURMERIC CASE
 NEEM CASE
 BASMATI RICE CASE.

TURMERIC PATENT CASE:

INTRODUCTION:

Turmeric is basically considered as Tropical herb grown in east India. Its powder is widely
used in India as a medicine, a food ingredient and as well as in the dye. It is also used as an
essential ingredient in cooking many Indian dishes. As medicines, it is used:

 To heal wounds and rashes

 As medical cosmetics
 As blood purifier
 To treat the common cold
 As an anti-parasitic for many skin infections.

BACKGROUND:

In1995, two Indian scientists working in the U.S., were granted a patent for a method of:
“promoting healing of a wound by administering Turmeric to a patient afflicted with the
wound.”10 The patent was assigned to the University of Mississippi Medical Center. It means that
they have got an exclusive right over the Turmeric (Haldi) and make million dollars by it across
the globe. The Council of Scientific and Industrial Research (CSIR) of India challenged the
patent in 1996. CSIR claimed that the patent lacked novelty as the use of Turmeric, as a method
for healing wounds was age old in India and therefore a part of the prior art.

10
U.S. Patent 5,401,504
VERDICT:

CSIR presented 32 references, some of them being over a hundred years old, to support that the
claims of the patent were well known and part of the prior art. Some of the references shown are
mentioned below:

 J.Ind.Med.Asso (1953)
 Ayurvedic Healing (1989)
 The Wealth of India (1950)
 Indian Materia Medica (1976)
 Economic and Medical Plant Research (1990)
 Home Remedies (1958)
 The Ayurvediv Pharmacopea of India (1986)
 Selected Medicinal Plants of India (1992)
 Bustanul Mulfredat (1867)
 Kyaa Kaha aur Kyoorti G.N. Chahun

In 1997, the USPTO rejected all six claims of the patent as anticipated by the submissions
of CSIR. The patent was thus declared invalid. The University of Mississippi Medical Center
decided after this initial blow to abandon the patent and the patent was re-assigned to the
inventors. The inventors chose to pursue the case further on the grounds that,

“the powder and paste had different physical properties, i.e. bio-availability and absorbability,
and therefore, one of ordinary skill in the art would not expect, with any reasonable degree of
certainty, that a powdered material would be useful in the same application as a paste of the
same material. The inventors, further, mentioned that oral administration was available only
with honey and honey itself was considered to have wound healing properties.”11

The USPTO however rejected this objection and stated that both paste and powder were
equivalent in relation the references submitted by CSIR. In 1997 the claims were rejected a
second time, and in 1998 the re-examination certificate was issued which signified the end of the

11
Mashelkar, R. A., Intellectual property rights and the Third World, 81 Current Science (2001), p. 960,
case. The Turmeric case is widely hailed as the first patent re-examination case where the
rejection was based on the presentation of TK.

The TK is of great importance and a treasure of one’s country, from the above case we are
can concede that absence of novelty leads to dismissal of the patent. The cost of the case is
another interesting issue; according to CSIR, the entire process cost them 500,000 rupees, patent
cases can cost but still sufficiently expensive to exclude many poor indigenous communities
from initiating an opposition procedure.

NEEM PATENT CASE:

THE NEEM:

The Neem tree (Azadirachta Indica) originates from the Indian subcontinent and now grows in
the dry regions of more than 50 tropical countries around the world. The neem tree has multiple
uses. It is mentioned in Indian texts, written over 2000 years ago and has been used for centuries
by local communities in agriculture as

 an insect and pest repellent,

 in human and veterinary medicine,
 toiletries and cosmetics.
 contraception
 dental hygiene

as well as being part of many traditional Indian medicines and cures. It is also venerated in the
culture, religions and literature of the region.

BACKGROUND:

In 1985 Robert Larson from (USDA) obtained a patent for his preparation of neem seed
extract and the Environmental Protection Agency approved this product for use in US market. In
1988 Robert Larson sold the patent on an extraction process to the US Company W.R. Grace.
Having gathered their patents and clearance from the EPA, four years later, Grace
commercialized its product by setting up manufacturing plant in collaboration with P.J. Margo
Pvt. Ltd in India and continued to file patents from their own research in USA and other parts of
world. Aside from Grace, neem based pesticides were also marketed by another company, Agri
Dyne Technologies Inc., USA, the market competition between the two companies was intense.
In 1994, Grace accused Agri Dyne, a non-exclusive royalty-bearing license.

During this period in India large number of companies also developed stabilized neem
products and made them available commercially. The number of patents filed in this period were
limited and geographically confined to few countries. The challenge to a neem based patent held
by W.R. Grace & Co. has returned many of intellectual property related issues controversies to
center-stage globally.

VERDICT:

The patent is a method of controlling fungi on plants comprising of contacting the fungi
with a neem oil formulation. A legal opposition has been filed by India against the grant of the
patent. India submitted evidence that hydrophobic extracts of neem seeds were known and used
for centuries in India, both in curing dermatological diseases in humans and in protecting
agricultural plants form fungal infections. Since then, traditional Indian knowledge is in public.
The opposition division found the requirements for sufficiency of disclosure to have been met
and that Art. 53(a) of EPC was not applicable to the present case.

They found inter alia that the question of TK was related to novelty and not morality
“since the patent did not give its proprietor any right to prohibit acts in India”. After examining
the process outlined in the articles of EPO and in the patent claim the board reached the
conclusion that the patent should be revoked for lack of inventive step. The EPO identified the
lack of novelty, inventive step and possibly form a relevant prior art and revoked the patent.

On March 8, 2005 the Greens in the European Parliament cabled out to the world that the
decision to uphold the revocation of a patent on the Indian Neem tree was “a killer blow to
biopiracy in Europe and around the world”.12 The question of novelty and inventive step has
played a vital role in protecting the Traditional Knowledge of India.

BASMATI RICE PATENT CASE:

INTRODUCTION:

Basmati rice means “queen of fragrance or the perfumed one” and is also acclaimed the
“crown jewel” of South Asian rice. Rice is an important aspect of life in the Southeast and other
parts of Asia. It is treasured for its intense fragrance and taste, famous in national as well as
international markets. This kind of rice is grown in the Himalayan hills, Punjab, Haryana, Uttar
Pradesh and parts of Pakistan, since times immemorial. Basmati is the finest quality of rice, long-
grained, and the costliest in the world. The year 1997 marked the most important case in the
history of geographical indication (bio-piracy).

BACKGROUND:

RiceTec, a Texas-based company, in 1997, patented some types of rice they developed as
“American basmati”. RiceTec Inc, had been trying to enter the international Basmati market with
brands like “Kasmati” and “Texmati”. Ultimately, the company claimed to have developed a
new strain of aromatic rice by interbreeding basmati with another variety. They sought to call the
allegedly new variety as Texmati or American Basmati. Two Indian nongovernmental
organizations (NGOs) — Centre for Food Safety, an international NGO that campaigns against
biopiracy, and the Research Foundation for Science, Technology and Ecology, an Indian
environmental NGO who filed legal petitions in the United States Objected the patent claimed by
RiceTec. The Centre for Scientific and Industrial Research also objected to it. The Indian
government, after putting together the evidence, officially challenged the patent in June 2000.

VERDICT:
12
“EPO upholds decision to withdraw ’free tree’ patent: Greens celebrate Neem biopiracy victory”
 India has been one of the major exporters of Basmati to several countries and such a grant
by the US patent office was likely to affect its trade. Since Basmati rice is traditionally grown in
India and Pakistan, it was opined that granting patent to Rice Tec violated the Geographical
Indications Act under the TRIPS agreement. A geographical indication is a name or sign used on
certain products which corresponds to a specific geographical location or origin (e.g. a town,
region, or country).

The use of Geographical indications may act as a certification that the product possesses
certain qualities, or enjoys a certain reputation, due to its geographical origin. Rice Tec's usage of
the name Basmati for rice which was derived from Indian rice but not grown in India, and hence
not of the same quality as Basmati, would have led to the violation of the concept of GI and
would have been a deception to the consumers.

Many tall tales are told about the horrors of biopiracy, and separating fact from fiction can
sometimes be hard for the casual observer. These are landmark judgments where TK’s
importance was made evident around the globe and the importance of its protection and
importance was made conspicuous. The following are the treaties, conventions and covenants
where the protection of Indigenous community was elucidated.

Trade Related Intellectual Property Rights (TRIPS) on Geographical indications:

In TRIPS, Article 22(1) - Geographical Indications are defined as “indications which

identify a good as originating in the territory of a member, or a region or locality in that territory,
where a given quality, reputation or other characteristic of the good is essentially attributable to
its geographical origin” The Geographical indication tells the originality of the product and the
resources taken from other country which is not the origin puts the reputation of the product at
stake. The Geographical indication plays a key role in the reputation and Patency of the product

THE CONVENTION ON BIOLOGICAL DIVERSITY, 1992:

 CBD recognizes and acknowledges the value of indigenous knowledge of regional
biological resources,13 “The Interface between International Intellectual Property and
Environmental Protection: Biodiversity and Biotechnology,”

Article 8(j) of the CBD broadens the scope and mandate of protection of the traditional
knowledge, innovations and practices of indigenous and local communities with wider
objectives. It reads as follows:

‘Subject to its national legislation, respect, preserve and maintain knowledge, innovations and
practices of indigenous and local communities embodying traditional lifestyles relevant for the
conservation and sustainable use of biological diversity and promote their wider application
with the approval and involvement of the holders of such knowledge, innovations and practices
and encourage the equitable sharing of the benefits arising from the utilization of such
knowledge, innovations and practices.’

According to Article 15.4, access shall be granted on mutually agreed terms. Further,
Article 15.5 mandates that access to genetic resources shall be subject to prior informed consent
of the contracting party providing such resources.

Articles 19.1 and 19.2 advocate fair and equitable benefit-sharing arrangements between
providers and users of relevant resources

BENEFIT OF SHARING- INTERNATIONAL OBLIGATION;

The need to protect and preserve traditional knowledge for the present and future
generation has gained growing importance in the international fora ever since the adaptation of
Convention on Biological Diversity, 1992. Since then, protection of Traditional Knowledge has
been actively on the agenda of different inter-governmental bodies, including the human right
bodies, viz, the World Trade Organization and its Council for TRIPS, the World Intellectual
Property Organization, the United Nations Environment Programme/CBD, the Food and
13 Charles McManis U. L.Q.,Vol. 76, 1998, p. 255
Agriculture Organization, the World Health Organization, the International Labour Organisation,
the United Nations Human Rights Commission and the UN Permanent Forum on Indigenous
Issues.

CONVENTION CONCERNING INDIGENOUS PEOPLE IN INDEPENDENT

COUNTRIES, 1986:

The International Labour Organisation’s Convention concerning indigenous peoples in

independent countries (the ILO Convention No. 169)14 which came into force on September 5,
1991, asserts the right of indigenous and tribal people over their land. It affirms the right of
indigenous peoples to self-identification15. International Labour Organisation has granted
recognition to the spiritual, cultural and collective rights of indigenous people through this
Convention16.

Article 15.1 of the Convention recognizes rights of the indigenous peoples to the natural
resources pertaining to their lands and their right to a voice when access to natural resources on
their lands and territories is at issue.

It also reaffirms their right to traditional medicines and to maintain their health practices,
including the conservation of their vital medicinal plants, animals and minerals.17

Additionally, it recognizes their right to practice and revitalize their cultural traditions and
customs and the right to maintain, protect and develop the past, present and future manifestations
of their cultures.

14 Convention (No. 169) concerning Indigenous and Tribal Peoples in Independent Countries, adopted on 27 June 1989 by the General Conference of the International Labour Organization at its

seventy-sixth session.

15 Article 1.2. Self-identification as indigenous or tribal shall be regarded as a fundamental criterion for determining the groups to which the provisions of this Convention apply. Also see, Peter-
Tobias Stoll and Anja von Hahn, “Indigenous Knowledge and Indigenous Resources in International Law,” in Sinke von Lewinsky (ed.), Indigenous Heritage and Intellectual Property: Genetic

Resources, Traditional Knowledge and Folklore, Kluwer Law International, New York, 2004, pp. 21-22.

16 Article 13.1: In applying the provisions of this Part of the Convention governments shall respect the special importance for the cultures and spiritual values of the peoples concerned of their

relationship with the lands or territories, or both as applicable, which they occupy or otherwise use, and in particular the collective aspects of this relationship

17 Article 24(1): Indigenous peoples have the right to their traditional medicines and to maintain their health practices, including the conservation of their vital medicinal plants, animals and minerals.
Indigenous individuals also have the right to access, without any discrimination, to all social and health services
 The states are obliged to restitute their cultural, intellectual, religious and spiritual property
taken without their free, prior and informed consent or in violation of their laws, traditions and
customs.

Article 31(1) runs as follows:

“Indigenous peoples have the right to maintain, control, protect and develop their cultural
heritage, traditional knowledge and traditional cultural expressions, as well as the manifestations
of their sciences, technologies and cultures, including human and genetic resources, seeds,
medicines, knowledge of the properties of fauna and flora, oral traditions, literatures, designs,
sports and traditional games and visual and performing arts. They also have the right to maintain,
control, protect and develop their intellectual property over such cultural heritage, traditional
knowledge, and traditional cultural expressions.”

GLOBAL POSITIONING OF INDIA

To the greatest of all the strong countries around the globe have one such common factor
i.e. 'A Robust IP Regime'. Intellectual Property Rights are the driving fuel for an economy in
today's technologically driven world. The huge leap of knowledge based economy is what makes
a country a player in the global IP regime today. India is in the helm of taking the big leap. The
driving force strengthening the leap is building the IP regime.

“The improvement reflects important reforms implemented by Indian policy makers toward
building and sustaining an innovation ecosystem for domestic entrepreneurs and foreign
investors alike”18.

India took its baby steps in the year 2016 by bringing in place the National Intellectual
Property Rights Policy. The policy was mainly focused towards empowering the domestic
inventors. India is consistently performing better in the field of IP where the rankings on several

18
As per the U.S. chamber of commerce
IP meters are a proof that India is stepping toward the right aspect with respect to IP regime. In
the year 2018, Global Intellectual property Index (GIPI) listed out that India as secured forty
fourth position out of the fifty countries, from a jump of 43 rd of 45 economies in 2017. India has
climbed eight places superior in the 2019 International Intellectual property Index, ranking at 36th
position among the same 50 countries. India’s overall score has raised from 30.07 percent in
2018 to 36.04 percent in the year 2019. Similarly, in the Global Innovations Index (GII) 2018
ranking India was ranked in the 57 th position, three ranks ahead of what it was in the previous
year. The improvement is an outcome of specific reforms such as accession to the WIPO Internet
Treaties, the agreement to initiate a Patent Prosecution Highway (PPH) with international
offices, and a dedicated set of IP incentives for small business. The development was also
attributed to few pro-IP policies of the Modi Government such as ‘Accelerating Growth for New
India Innovations’, ‘Start up India’ and ‘Digital India’.

CONCLUSION:

The technological value of traditional knowledge is increasingly recognized and its

potential being realized, the challenge is to ensure that the intellectual and cultural contribution
of traditional communities are appropriately utilised. The support for protecting indigenous
knowledge is growing internationally. The potential for using existing IP statutes and alternative
forms of protection for indigenous knowledge is being explored in a number of countries. Its
traditional qualities and frequent close linkage with the natural environment mean that traditional
knowledge can form the basis of a sustainable and appropriate tool for locally based
development. It also provides a potential avenue for developing countries, more particularly, the
least-developed countries, to benefit from the knowledge economy. The call for protection of TK
against misuse or misappropriation raises many obstacles across the globe. The changing social
environment, and the sense of historical dislocation affecting many communities may actually
strengthen the resolve to safeguard traditional knowledge for the benefit of future generations.