Traditional Medicine in Asia

Protection of traditional systems of medicine, patenting and promotion of medicinal plants
One example of a patent on a
therapeutic use of a natural product is
afforded by the patent granted in March
1995 by the US Patent and Trademark
Office on “Use of Turmeric (Curcuma
longa) in Wound Healing”. It was awarded
to the University of Mississippi Medical
Center. The claim covered “a method of
promoting healing of a wound by administering
turmeric to a patient afflicted with
the wound”, such wounds including
surgical wounds and body ulcers.
The powder of the turmeric plant was
a classic “grandmother’s remedy” in India.
It had been applied to the scrapes and cuts
of children for generations. 10 On 14
August 1997, the US Patent and
Trademark Office invalidated the patent
upon request of India’s Council for
Scientific and Industrial Research, in the
context of a growing protest by many
developing countries against “biopiracy”. xxv
In Europe, a legal provision allows the
patentability of a known product for a new
specific indication. (27) Under article 54(5)
of the European Patent Convention, the
identification of the first medical indication
of a known product may suffice to get a
patent on the product. xxvi The United States,
by contrast, has adopted a more restrictive
approach, confining patents on uses to a
particular “method-of-use.” Such methodof-use
patents do not encompass
protection of the product as such. 14
Under the TRIPS Agreement, WTO
Member Countries seem free to decide
whether or not to allow the patentability of
the use of natural and other known
products. xxvii Many patent laws recently
adopted in developing countries make no
specific reference to the availability of
patents for uses, leaving unclear whether
the protection for processes covers “uses”
and “methods of use.”
Countries concerned about “biopiracy”
may wish to exclude the patentability of the
use of known products in order to prevent
the appropriation under patent rights of
biological materials. It would seem logical,
in particular, that a country that broadly
excludes methods of medical treatment
also broadly excludes new therapeutic uses
for known products. Nevertheless, given the
territoriality of the patent system, a country
that prevents the patenting of uses under
its national law cannot force other countries
to follow the same approach. In the
absence of international rules on the
matter, nothing will prevent other countries
from declaring as patentable (if the legal
requirements are met) what is not deemed
protectable in a particular country.
Policy options: Protecting or
promoting TM
The previous sections have indicated the
scope available for the patenting of different
components of TM. However, there are
divergent opinions on the desirability of
extending IPRs protection to such
knowledge, as well as on the modalities to
be applied therefor. These different views
arise from different philosophical and
ethical perceptions, as well as from
xxv SUNS, No, 4050, 8.9.97
xxvi The Technical Board of Appeal of the EPO has ruled that such claims should be deemed as covering all
therapeutical uses of the product like in the case of claims on a pharmaceutical composition. Infringement of
such claims would only take place when the product is commercialized for direct therapeutic use, and not in bulk.
xxvii Because patents protect inventions but not discoveries, the discovery of a new purpose for a product cannot render
a known product patentable as such under general principles of patent law. Unless in connection with the new
purpose the product is forced to be present in an amended new form.
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