Intellectual Property Rights in AYUSH & Traditional Medicine: Protecting Ancient Knowledge in a Modern Legal System
 |
| AYUSH and traditional medicine face serious intellectual property challenges. This article explores patents, biopiracy, TKDL, and legal protection mechanisms. |
AUTHOR- NARGIS
The
Intersection between Ancient Wisdom and Contemporary Legal Frameworks
Traditional medicine systems and
components of AYUSH are based on millennia-old systems of acquired knowledge
and practice. However, most of this ancient knowledge does not conform to
modern IP systems due to inherent differences between the two:
- Traditional
Medicine is: -Collective -Evolutionary -Inter-generational
- Modern
intellectual property (IP) laws are designed for: -Individual Innovation
-Fixed Inventorship -Novelty
In this disconnect which has
resulted in one of the most challenging discussions regarding IPR within the
healthcare context today.
Understanding
AYUSH as Intellectual Property
The AYUSH systems include:
- Ayurveda
- Yoga
- Unani
- Siddha
- Homeopathy
The various forms of AYUSH contain
an array of intellectual property as follows:
- Medicinal
Formulations
- Principles
of Treatments
- Methods
of Diagnosis
- Herbal
Combinations
- Concepts
of Prevention of Illness
AYUSH as a system does not have an
abundance of "inventions" – this means their intellectual property is
valuable.
Why
Traditional Medicine is Vulnerable to IP Law
Traditional medical wisdom has
unique levels of risk, which include:
- Historically,
it was largely undocumented;
- There
are rarely identifiable inventors of this knowledge;
- It
is often viewed as in the "public domain";
- It
is often older than the current patent system (therefore established);
- Traditional
medicine can be easily misappropriated due to these attributes.
Biopiracy
- The Greatest Threat to Traditional Medicine
Definition of Biopiracy
Biopiracy includes:
- Patenting
traditional medicinal knowledge;
- Commercial
exploitation without the consent of the community; and
- Denying
access to the ability to share the benefits derived from traditional
knowledge with the community.
Through their action, companies can
isolate and patent the active ingredients contained in traditional medicines
with the belief that they were new products or inventions.
While companies can use clever
legal methods, this type of action is ethically questionable.
Can AYUSH
Formulations be Patented?
Classical Formulation's mentioned
in Authoritative Texts cannot be patented because they do not meet the
requirements of patentability (i.e., they are not novel).
Modified
Innovations
To the extent that a modified
innovation meets the requirements of patentability (i.e., new delivery systems;
new extraction techniques; new dosage forms; standardised combinations), then a
patent can be granted.
This will promote innovation
without usurping traditional knowledge.
The
Role of the Traditional Knowledge Digital Library
India has developed the Traditional
Knowledge Digital Library as a model for protecting traditional knowledge on a
global basis through Intellectual Property.
- Translates
classical text into patent examiner's terminology.
- Prevents
any wrongful patent applications in other countries.
- The
patent institute throughout the world contact TKDL prior to granting
patents.
Consequently, TKDL has supported
the successful revocation of several fraudulent patents for Indian traditional
medicines
IPR
(Intellectual Property Rights) Protection Systems for AYUSH
1. Defensive Protection
Protecting against others' claims
of ownership of traditional knowledge.
e.g. TKDL and documentation of
prior art
2. Positive Protection
Allowing communities/institutions
to receive economic benefits.
Includes:
• Geographical
Indications (GI)
•
Benefit-sharing models
• Community
rights systems
Geographical
Indications in Traditional Medicines
Certain herbals and other medicines
(e.g., turmeric) are attributed to specific geographic areas.
GI protection can preserve the
uniqueness of an herbal product and prevent misuse, as well as promote economic
growth for the area.
For example, many herbs and their
formulations have specific geographical attributes; therefore, these herbal
products need GI status.
Copyright
in AYUSH:
Formulations may not be protected
by copyright; however, the manner in which a formulation is expressed can be.
Copyright will apply to:
• Books
• Research
papers
• Translations
• Commentaries
• Digital
content
Copyright will protect the
scholarly attributes of AYUSH.
Trade
Secrets in Herbal Medicine:
Secrecy has helped the continued
survival of many traditional medicines.
The components of a trade secret
are:
• Not publicly
known
• Have a
monetary value
• Reasonable
efforts are made to keep it secret.
Trade secret systems have
traditionally been used:
• By herbal
medicine companies
• By family
practitioners
• By
small-scale producers.
International
Protection of AYUSH Knowledge:
Globally, Patents are most often
given for new and innovative products.
Traditional knowledge lacks
the required documentation and is therefore less likely to be patented.
Although countries have some level
of IPR protection (patents), enforcing IPRs across multiple jurisdictions can
be very difficult.
Ethical
Dimensions of IP in Traditional Medicine
The core ethical questions include:
Who owns traditional knowledge?
Should healing knowledge be
monopolized?
How do we ensure benefit-sharing?
Intellectual Property law must
adapt to protect both innovation and cultural heritage.
The
Future of IPRs in AYUSH
The future lies in:
- Strong
documentation
- Community
participation
- Hybrid
IPR models
- Ethical
commercialisation
- Global
recognition of Traditional Knowledge Systems
AYUSH should not be locked in the
past but shouldn't be exploited either.
Conclusion
– Protection Without Erasure
AYUSH and Traditional Medicine are
not relics, but living knowledge systems.
Intellectual Property Rights
should:
- Prevent
exploitation
- Facilitate
responsible innovation
- Respect
cultural origins
- Help
achieve public health
Only then will Traditional Medicine
endure not as folklore but as a preserved, respected and continually evolving
scientific medical discipline.
Keywords
Ip rights in Ayush, intellectual
property in traditional medicine, Ayush medicine patent law, and traditional
knowledge intellectual property. ipr in Unani Medicine, Ayurveda patent issues,
biopiracy, traditional medicine, tkdl Ayush, protection of traditional
medicine