Protecting Traditional Knowledge: Is Patent Law Enough?

Introduction

Can knowledge that has existed for centuries be protected under a legal system designed to reward new inventions? This question lies at the heart of the growing debate on the protection of traditional knowledge in intellectual property law. Traditional knowledge refers to the knowledge, skills, and practices that have been passed from one generation to another over many years, eventually becoming an integral part of a community’s cultural heritage. It covers a wide range of fields, including medicine, agriculture, science, and technical practices. When such knowledge is properly documented, it may receive protection under different forms of intellectual property, such as patents, trademarks, copyrights, trade secrets, or geographical indications. However, a significant portion of traditional knowledge has been preserved only through oral traditions and therefore remains outside formal legal protection. To address this gap, India developed the Traditional Knowledge Digital Library (TKDL), a digital repository that records and classifies traditional knowledge from ancient texts written in languages such as Sanskrit, Hindi, Arabic, Tamil, and Urdu. Since these sources were often inaccessible to foreign patent examiners, proving prior existing knowledge was difficult, leading to cases of biopiracy. TKDL overcomes this challenge by translating and organizing the information into internationally used languages, including English, French, German, Japanese, and Spanish, enabling patent offices to identify prior art and reject wrongful patent claims. Against this background, this article explores whether patent law can effectively protect traditional knowledge by critically examining India’s landmark turmeric, neem, and basmati disputes and evaluating how the creation of TKDL has strengthened its protection.

Why Does Traditional Knowledge Challenge Patent Law?

Traditional knowledge challenges patent law because it does not easily fit within the requirements of the patent system. Much of this knowledge has been developed collectively over generations and is shared within communities rather than owned by a single individual. Since a large part of it has never been formally documented, patent examiners may fail to identify it as prior art during the examination process. This has, at times, resulted in patents being granted for inventions that are actually based on long-established traditional practices, giving rise to concerns of biopiracy. These limitations raise important questions about whether the existing patent framework is capable of protecting traditional knowledge in a meaningful way. The turmeric and neem disputes clearly demonstrate these challenges in practice, highlighting the limitations of the patent system in recognising existing traditional knowledge. Examining these disputes provides a practical basis for evaluating whether patent law can effectively protect traditional knowledge.

III. Turmeric: When Patent Law Failed to Recognise Existing Knowledge

The turmeric patent dispute clearly demonstrated how traditional knowledge could be overlooked during the patent examination process. In 1995, the U.S. Patent and Trademark Office (USPTO) granted the University of Mississippi Medical Center a patent for the use of turmeric powder in wound healing. The patent was challenged by India’s Council of Scientific and Industrial Research (CSIR), which argued that the claimed invention lacked novelty because the medicinal use of turmeric had been a well-known practice in Indian households for generations. To support its claim, CSIR submitted documentary evidence, including an ancient Sanskrit text and a 1953 article published in the Journal of the Indian Medical Association, establishing the existence of prior art. As the applicant could not demonstrate an inventive step, the USPTO revoked the patent. The dispute also exposed a major weakness in the international patent system: much of India’s traditional knowledge remained inaccessible to foreign patent examiners because it was recorded in languages such as Sanskrit and Hindi rather than in searchable global databases. This case supports the central question of this article by showing that patent law failed to protect traditional knowledge at the examination stage, with protection becoming possible only after the wrongly granted patent was challenged.

Neem: A Test of Patent Law’s Ability to Distinguish Innovation from Tradition:

The neem patent dispute further showed why traditional knowledge is difficult to protect under the existing patent system. In the 1990s, the European Patent Office (EPO) granted a patent to the United States Department of Agriculture (USDA) and W.R. Grace for a fungicidal product made from neem seeds. This decision was challenged by Indian organisations, including the Research Foundation for Science, Technology and Ecology led by Vandana Shiva, which argued that the pesticidal use of neem had been practiced in India for generations and was never a new invention. The main problem was that this knowledge had largely been passed on orally and was not available in the databases used by patent examiners. As a result, it was not identified as prior art when the patent was granted. After evidence from Ayurvedic texts and Indian research was submitted, the EPO revoked the patent for lack of novelty and inventive step. The neem dispute shows that the real challenge is not only the patent law itself, but also the absence of accessible records of traditional knowledge during patent examination, making proper documentation essential for preventing biopiracy.

Beyond Patent Disputes: Has Traditional Knowledge

Beyond Patent Disputes: Has Traditional Knowledge Digital Library (TKDL) Strengthened Protection?

The creation of the Traditional Knowledge Digital Library (TKDL) marked a significant shift from challenging wrongful patents after they were granted to preventing such patents in the first place. By systematically documenting India’s traditional knowledge and making it available to patent examiners as prior art, TKDL reduces the risk of existing knowledge being mistaken for a new invention. As a result, patent offices are better equipped to identify applications that lack novelty and to reject them at the examination stage itself. In this way, TKDL has strengthened the protection of traditional knowledge by improving the quality and accuracy of patent examination and reducing opportunities for biopiracy. At the same time, it shows that patent law alone is not enough to safeguard traditional knowledge. The success of TKDL suggests that effective protection depends not only on legal principles but also on strong institutional mechanisms that help prevent the misappropriation of traditional knowledge before patents are granted.

Conclusion

The turmeric and neem patent disputes make it clear that patent law alone cannot fully protect traditional knowledge. In both cases, the problem was not that the law completely lacked protection, but that the patent system failed to recognise existing traditional knowledge during the examination process. Protection was achieved only after the patents were challenged with evidence showing that the claimed inventions were already known and used for generations. This highlights the importance of making traditional knowledge visible and accessible to patent examiners. The establishment of the Traditional Knowledge Digital Library (TKDL) was an important step in this direction, as it helped prevent similar mistakes before patents were granted. Therefore, the answer to the central question of this article is that patent law can protect traditional knowledge, but only when it is supported by effective documentation and institutional mechanisms such as TKDL. India’s experience shows that preserving traditional knowledge requires not only legal protection but also practical systems that ensure innovation is rewarded without overlooking knowledge that has existed for centuries.

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The Patents Act, 1970, No. 39 of 1970, § 13 (India)

The Patents Act, 1970, No. 39 of 1970, § 25 (India)

The Patents Act, 1970, No. 39 of 1970, § 64 (India)