Traditional Medicine in Asia

Protection of traditional systems of medicine, patenting and promotion of medicinal plants
face. Due to the principle of territoriality,
protection at home would not prevent the
misappropriation of the protected knowledge
in other countries or that such knowledge
would continue to be considered as
belonging to the public domain.
Developing countries (notably Latin
American and Caribbean) have also
actively promoted the increased involvement
of the World Intellectual Property
Organization (WIPO) in the discussion
and development of a “sui generis” regime
for traditional knowledge. xxxv
Curbing “biopiracy”
Despite the general agreement in the
developing world about the importance of
obtaining a recognition for traditional
knowledge, the main concern of some
countries has been to avoid the “biopiracy”
of traditional knowledge and to ensure
benefit sharing (as provided for under
articles 15 and 16 of the CBD), rather than
the establishment of a system of positive
appropriation. Thus, the Government of
India has stated that
“In the recent past, there have been
several cases of biopiracy of traditional
knowledge (TK) from India. For preventing
such instances in the future there is a need
for developing digital databases of prior
art related to herbs already in the public
domain. Following patents on brinjal, etc.,
in India, an exercise has been initiated to
prepare easily navigable computerized
database of documented TK relating to
use of medicinal and other plants (which
is already under public domain) known as
TK Digital Library (TKDL). Such digital
databases would enable Patent Offices all
over the world to search and examine any
prevalent use/prior art, and thereby
prevent grant of such patents and
biopiracy”. 12
Among the projects initiated in India
to impede the consideration of such
knowledge as “new” and, therefore, patentable
in some jurisdictions, “Gene
Campaign” has undertaken work on
documentation of biodiversity and
knowledge relating thereto aimed at three
tribal populations: the Munnars in South
Bihar (in the Chotanagpur region); the Bhils
of Madhya Pradesh, and the Tharus of the
Terai region. Medicinal plants and
knowledge related thereto was sought to
be documented with the help of educated
tribal youth. Elders in the village, medical
practitioners and traditional healers were
consulted in the collection and understanding
of the information. 12
The documentation of traditional
knowledge, in the Indian Government’s
views, permits not only the prevention of
“biopiracy”; it may also provide a basis for
the sharing of benefits arising out of the
use of such knowledge, though documentation
per se will not facilitate benefit
sharing with the holders of such
knowledge. 12
In addition, Section 36 (iv) of the Indian
Biodiversity Bill provides for the protection
of knowledge of local people relating to
biodiversity through measures such as
registration of such knowledge, and
development of a sui generis system. For
ensuring equitable sharing of benefits arising
from the use of biological resources and
associated knowledge, Sections 19 and 21
stipulate prior approval of the National
Biodiversity Authority (NBA) before their
access. While granting approval, NBA will
impose terms and conditions, which secure
equitable sharing of benefits. Section 6
xxxv A proposal for the establishment of a Committee to deal with these issues was submitted to the WIPO Governing
Bodies in September 2000.
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