A DISSERTATION ON

TRADITIONAL KNOWLEDGE: AN EXCEPTION

TO PATENTABILITY

THAMIZHPARITHI K

20232LMI0008
1. INTRODUCTION :

Traditional and indigenous knowledge form the back bone of cultural heritage.
Traditional Knowledge (TK) is the knowledge of people in a given society, developed
over time, and handed down from one generation to another. It is usually transmitted
orally from generation to generation. It can be understood as tradition-based literature,
artistic or scientific works, performances, inventions and discoveries, designs, marks,
names and symbols; undisclosed information and other tradition-based knowledge
creation. It is found in community laws, local languages, artistic works, beliefs, rituals and
biodiversity. The knowledge related to agriculture, medicine, traditional festivals and
cultural expression forms part of TK. The knowledge which is used by people is carried
forward because of the values embedded in it. It is rich, as it is time tested and has
withstood real-life challenges.
Traditional knowledge includes mental inventories of local biological resources,
animal breeds, and local plant, crop and tree species. It may include such information as
trees and plants that grow well together, and indicator plants, such as plants that show
the soil salinity or that are known to flower at the beginning of the rains. It includes
practices and technologies, such as seed treatment and storage methods and tools used
for planting and harvesting. TK also encompasses belief systems that play a fundamental
role in a people's livelihood, maintaining their health, and protecting and replenishing the
environment. TK is dynamic in nature and may include experimentation in the integration
of new plant or tree species into existing farming systems or a traditional healer's tests of
new plant medicines.
• TK in a general sense embraces the content of knowledge itself as well as
traditional cultural expressions, including distinctive signs and symbols associated
with TK.
• TK in the narrow sense refers to knowledge as such, in particular the knowledge
resulting from intellectual activity in a traditional context, and includes know-how,
practices, skills, and innovations.
Traditional knowledge can be found in a wide variety of contexts, including:
agricultural, scientific, technical, ecological and medicinal knowledge as well as
biodiversity-related knowledge.1

1 https://www.wipo.int/tk/en/tk/ last accessed on 15 march 2024 at 12.33pm.

 Traditional knowledge is collective in nature and is often considered the property of
the entire community, and not belonging to any single individual within the community.
It is transmitted through specific cultural and traditional information exchange
mechanisms, for example, maintained and transmitted orally through elders or specialists
(breeders, healers, etc.), and often to only a select few people within a community.

2. DEFINITION OF THE TOPIC:

Tradition is the Latin word derived from the word “traditio” which means “to
transmit, to deliver, to hand over, and to give for safe keeping”. The word tradition is
system of beliefs or behavior passed on to the people or society.
Knowledge is the Greek word derived from the word “Gnoisis” which means
“knowing through observation or awareness of facts, understanding”. Then the word
Knowledge is classified into two major categories, they are personal knowledge and public
knowledge (social knowledge).
Personal – knowledge shared by individual by communication.
Social – knowledge shared to the society and it was collective knowledge.
Then other categories are,
Explicit knowledge which was expressed through orally or transferred to others by
recorded form and Tacit Knowledge which was personal knowledge it may or may not
expressed to the individual.
Patent is the Latin word derived from the word “Patere” which means “to lay open”.
It is type of Intellectual property right.
“A patent is an exclusive right granted for an invention, which is a product or a process that
provides, in general, a new way of doing something, or offers a new technical solution to a problem.”2
WIPO
Traditional Knowledge (TK) is knowledge, know-how, skills and practices that are
developed, sustained and passed on from generation to generation within a community,
often forming part of its cultural or spiritual identity.3

2https://www.wipo.int/patents/en/#:~:text=What%20is%20a%20patent%3F,technical%20solution%20to%20a%

20problem. Last accessed on 15 march 2024 at 12.33pm.

3 Id 1
3. SIGNIFICANCE OF THE STUDY:

The most significant part of the study is to protect the Traditional Knowledge because it
includes varies elements like their information on the use of biological and other materials for
medical treatment and agriculture, production processes, designs, literature, music, rituals, and
other techniques and arts.
Then the subsequent study gives importance to enact lawful mechanism for the protection
of the Traditional Knowledge and helps to avoid any misuse of their knowledge. This
knowledge can mislead without proper procedural practices.
Then the last part of the study gives importance to preventing Bio piracy and its growing
injustice to society, inadequate compensation and benefit sharing between developed and
developing countries.

4. REVIEW OF LITERATURE :

1. Protecting Traditional Knowledge: The WIPO Intergovernmental Committee on

Intellectual Property and Genetic Resources, Traditional Knowledge and
Folklore. United Kingdom: Taylor & Francis, 2017.
This is the first comprehensive review of the Intergovernmental Committee (IGC) of
the World Intellectual Property Organization (WIPO) established in 2000. It provides an in-
depth consideration of the key thematic areas within WIPO discussions – genetic resources
(GRs), traditional knowledge (TK) and traditional cultural expressions (TCEs) through the
perspectives of a broad range of experts and stakeholders, including indigenous peoples and
local communities. The book considers the future of the IGC and suggests options which
could contribute towards achieving a consensual outcome.

2. Dutfield, Graham. Intellectual Property, Biogenetic Resources and Traditional

Knowledge. United Kingdom: Taylor & Francis Group, 2010.
This book is a comprehensive examination of the key issues, institutions and ideologies
in this area, presenting definitions and explanations of the fundamentals of intellectual
property rights (IPRs), biogenetic resources and traditional knowledge. It uses the insights
from this to build a picture of how these factors interact in practice, bringing to the surface
issues such as: the conservation and sustainable use of biodiversity, benefit sharing from the
commercial use of biodiversity, biotechnological innovation and the transfer of technology,
agriculture, food security, rural development, health and international justice.
3. Lewinski, Silke von. Indigenous Heritage and Intellectual Property: Genetic
Resources, Traditional Knowledge and Folklore. Italy: Kluwer Law International, 2008.

This book covers commercial exploitation of indigenous knowledge and resources takes
place in the midst of a genuine and significant "clash of cultures," the eight contributors to this
important book explore ways in which intellectual property law can expand to accommodate
the rights to indigenous people to their traditional knowledge, genetic resources, indigenous
names and designations, and folklore.

4. Caroline Bongiwe Ncube, Elmien Du Plessis Indigenous Knowledge & Intellectual

Property. South Africa: Juta, 2016.

This book covers controversial aspects of the legal protection of indigenous knowledge
with which the contributors to this volume have critically engaged. This was s informed by
recent legislative and policy developments in several countries in the global South, including
South Africa.

5. Traditional Knowledge in Modern India Preservation, Promotion, Ethical Access and

Benefit Sharing Mechanisms By Nirmal Sengupta 2018 4

This book illustrates how India’s traditional knowledge can by systematically preserved and
employed. It presents instruments for using traditional knowledge as a developmental resource
and also discusses traditional knowledge and expressions of folklore from an intellectual
property perspective.

6. Protecting Traditional Knowledge: Can Intellectual Property Rights help? By

Lakshmanan, Pushpa Kumar, and Lakshmanan S.5
This paper covers various dimensions in which TK is sought to be protected under the
modern legal and economic systems. It probes into the possibilities of TK being protected
under intellectual property rights or alternative mechanisms yet to be created. This paper also
analyses the provisions of Convention on Biological Diversity, Nagoya Protocol and the
exclusive involvement of World Intellectual Property Rights Organization (WIPO) to protect
genetic resources, TK and traditional cultural expressions.

4Sengupta, Nirmal. Traditional Knowledge in Modern India: Preservation, Promotion, Ethical Access and Benefit
Sharing Mechanisms. Germany: Springer India, 2018.
5Lakshmanan, Pushpa Kumar, and Lakshmanan S, Protecting Traditional Knowledge: Can Intellectual Property

Rights help? Anc. Sci. Vol 1, Issue 2 (2014) pp.30-41.eISSN: 2373-7964.

7. An Interface Between Traditional Knowledge and Intellectual Property Rights (IPR):
An Indian Perspective N. Dhanaraj, Mamta Sharma6
This article covers the present Indian IPR system to understand whether it is capable to
handle traditional knowledge or should it be amended to incorporate a separate law to protect
traditional knowledge. Besides, a large-scale commercialization and unauthorized use of
traditional knowledge has been observed, which gives rise to the need to screen and protect it.
This article also takes into consideration the Bonn guidelines and Indian Biodiversity Act 2002
and the issues related to traditional knowledge, and finds that the current issues cannot be
resolved by the existing IPR regime.
8. Protection of Traditional Knowledge and Expressions of Folklore: Locating India in
the Global Framework R. Babu7
This paper Focusing on the role and experience of India, this chapter argues the need for
a comprehensive international treaty for the protection of TK in all its dimensions
supplemented by a model law for the States to emulate. In the interim, given the diverse
approaches to TK protection and the lack of consensus on various issues, India and other
developing countries efforts must equally be focused on incorporating suitable amendments
to existing norms, in particular, the TRIPS Agreement.
9. Traditional Knowledge and Intellectual Property Kennedy Institute of Ethics Journal
20(3):231-49 by Baruch A Brody Rice University 8
The article analyzes the debate of the Convention on Biological Diversity, at the World
Intellectual Property Organization, and at the World Trade Organization. It concludes that the
adherents of the uniqueness of traditional knowledge approach have not justified their claims.
10. TRADITIONAL KNOWLEDGE – THE CHANGING SCENARIO IN INDIA by
Jose, Ajoy and Manchikanti, Padmavati (2021) 9
This article deals with the main objective of protection would be to obtain recognition and
some compensation for the commercial use of TK outside the community or the society,
which generated it, either by excluding the unauthorized use by third parties or by ensuring a
right to remuneration (or benefit sharing) for such use.

6https://www.semanticscholar.org/paper/An-Interface-Between-Traditional-Knowledge-and-An-Dhanaraj-

Sharma/3a0000e2b6a7791366b10620c32d4d588970a127#citing-papers. Last accessed on 15 march 2024 at 12.33pm

7https://www.semanticscholar.org/paper/Protection-of-Traditional-Knowledge-and-Expressions-

Babu/05f71bd142e9df0f91bf326f92b6370db83d80a0. Last accessed on 15 march 2024 at 12.33pm.

8https://www.researchgate.net/publication/49659959_Traditional_Knowledge_and_Intellectual_Property. Last
accessed on 15 march 2024 at 12.33pm
9Jose, Ajoy and Manchikanti, Padmavati,"TRADITIONAL KNOWLEDGE – THE CHANGING SCENARIO IN

INDIA," Indonesian Journal of International Law: 2021 Vol. 18: No. 3, Article 5.
5. OBJECTIVES OF THE STUDY:
1. To recommend and suggest for uniform, generally agreed definition of the term
"Traditional Knowledge" in the context understanding IPR laws
2. To understand and analysis the concept of Traditional Knowledge including its intellectual,
scientific, economic, educational, technological, commercial, social, spiritual, ecological
and cultural value.
3. To emphasize and focus on prevention of bio piracy.
4. To find out that what could be the possible options for the protection of Traditional
Knowledge under existing intellectual property rights regime.
5. To provide some insights into the dynamics of legislative protection of Traditional
Knowledge.

6. STATEMENT OF PROBLEM:
The main problem experienced by indigenous people is that the Traditional
Knowledge does not satisfy the requirements of intellectual property protections. The nature
of Traditional Knowledge is such that more of it is transmitted orally than written down. This
poses particular problems when parties not authorized by the holder of that knowledge seek
to obtain IPRs over it. In the absence of any accessible written record, a patent examiner in
another country is unable to access documentation that would challenge the novelty or
inventiveness of an application based on Traditional Knowledge.
Within the context of scientific progress, modern intellectual property laws have
allowed these industries to monopolize the benefits derived from their use of indigenous
knowledge with disregard for the moral rights and material (financial) interests of indigenous
peoples themselves. Bio piracy can also be considered one of the main problems. The term
bio piracy is often used to describe the misappropriation of knowledge and/or biological
materials from traditional communities.

7. HYPOTHESIS:
There is lack of proper mechanism for identifying the ownership of Traditional
Knowledge. Due to the absence of a uniform definition of Traditional Knowledge, there are
problems in its identification and protection. Present I.P.R. regime is being misappropriated
because there is no sufficient protection to Traditional Knowledge
Bio piracy cannot be checked in the absence of a proper and efficient administrative and
legal mechanism for its prevention and control. Intellectual property rights can benefit
 Traditional Knowledge holders by, if sufficient legal measures are taken in to account.
Enactment of a ' Sui generis' legislation can be a solution to the problem.
8. RESEARCH QUESTION :

1) Whether traditional knowledge is really need to be protected?

2) Whether the Bio piracy can be prevented by enacting law?
3) Whether with an existing IPR law traditional knowledge can be commercialized?
4) Whether misuse of traditional knowledge can be protected through existing IPR law?
5) Whether indigenous people knew their knowledge is protected as traditional knowledge?

9. SCOPE AND LIMITATION OF THE STUDY:

This study attempts to address the concept of Traditional knowledge, within the
domain of intellectual property law, studying the various components involved,
statutory enactments and stands taken by the case studies in India, practices involved
in Traditional Knowledge. It is an overview of provisions of the Traditional
Knowledge under various forms of IP laws in India. The scope of present study is
limited to traditional knowledge and IP laws.

10. RESEARCH METHODOLOGY:

This study is completely based on a doctrinal research. The work is relied upon
the primary sources such as the various regimes of IP laws and the secondary sources
which include various books, articles published in journals, magazines and
newspapers.
11. CHAPTERIZATION:
CHAPTER-I

This chapter deals with the introductory part of the dissertation. The chapter gives
overview of the dissertation and critical thinking of the researcher.

INTRODUCTION

1.1 INTRODUCTION
1.2 DEFINITION/DESCRIPTION OF THE TOPIC
1.3 SIGNIFICANCE OF STUDY
1.4 REVIEW OF LITERATURE
1.5 OBJECTIVES OF STUDY
1.6 STATEMENT OF PROBLEM
1.7 HYPOTHESES
1.8 RESEARCH QUESTIONS
1.9 SCOPE AND LIMITATIONOF THE STUDY
1.10 RESEARCH METHODOLOGY

CHAPTER-II

This chapter deals with evolution and concept of traditional knowledge and characteristics
features of the traditional knowledge.

EVOLUTION AND CONCEPT OF TRADITIONAL KNOWLEDGE

2.1 INTRODUCTION
2.2 EVOLUTION AND CONCEPT OF TRADITIONAL KNOWLEDGE
2.3 SUBJECT MATTER OF TRADITIONAL KNOWLEDGE
2.4 IDENTIFICATION OF THE KNOWLEDGE HOLDERS
2.5 CHARACTERISTICS OF TRADITIONAL KNOWLEDGE
2.6 CATEGORIES OF TRADITIONAL KNOWLEDGE
2.7 IMPORTANCE OF TRADITIONAL KNOWLEDGE
2.8 KINDS OF TRADITIONAL KNOWLEDGE
2.9 CONCLUSION
 CHAPTER-III

This chapter deals about the relationship between Intellectual Property Rights and
Traditional Knowledge. Then it discusses about Sui Generis System and their issues.

INTELLECTUAL PROPERTY PROTECTION AND TRADITIONAL

KNOWLEDGE

3.1 INTRODUCTION
3.2 PATENTS
3.3 COPYRIGHT
3.4 TRADE SECRETS
3.5 TRADEMARKS
3.6 GEOGRAPHICAL INDICATORS
3.7 COMBINATION OF INTELLECTUAL PROPERTY RIGHTS
3.8 SUI GENERIS INTELLECTUAL PROPERTY PROTECTION FOR TRADITIONAL
KNOWLEDGE
3.9 CONCLUSION

CHAPTER IV

This chapter deals with legislation and legal mechanism involved in Traditional Knowledge
with respect of both Indian and International Perspectives.

TRADITIONAL KNOWLEDGE: AN INDIAN AND INTERNATIONAL

PESRPECTIVES

4.1 INTRODUCTION
4.2 INTERNATIONAL TREATY AND CONVENTIONS
4.3 WIPO
4.4 TRIPS AGREEMENT
4.5 LEGISLATIVE MEASURES IN INDIA
4.6 PROTECTION OF TRADITIONAL KNOWLEDGE THROUGH
DOCUMENTATION
4.7 INDIAN INITIATIVES FOR DEFENSIVE PROTECTION
4.8 INDIAN TRADITIONAL KNOWLEDGE DIGITAL LIBRARY
4.9 TKDL AS DEFENSIVE AND POSITIVE PROTECTION MECHANISM
4.10 CONCLUSION
 CHAPTER-V
This chapter deals with important aspects for the protection of Traditional Knowledge and
their procedures for the protection of Traditional Knowledge.
NEED FOR PROTECTION OF TRADITIONAL KNOWLEDGE
5.1 INTRODUCTION
5.2 NEED FOR PROTECTION OF TRADITIONAL KNOWLEDGE
5.3 CASE ILLUSTRATIONS OF BIOPIRACY
5.4 PROTECTION OF TRADITIONAL KNOWLEDGE BY OTHER COUNTRIES
5.5 CONCLUSION

CHAPTER–VI

This chapter deals with conclusion and suggestion for protection of traditional knowledge
and possible ways to implement in the society.

CONCLUSION AND SUGGESTIONS

6.1 CONCLUSION
6.2 IMPLEMENTATION IN THE SOCIETY
6.3 SUGGESTION