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Can Heritage Be Patented?

September 2005
Can Heritage Be Patented?

How India in a globalized world is coping with patenting threats on some uniquely Indian offerings such as yoga

By Siddharth Srivastava

Yoga?it is a $30-billion-a-year business in America with its roots in India. Long before outsourcing became a dirty word, India was being tapped by new-age gurus here to impart the virtues of the ancient traditions of yoga that teach the blending of mind, body, and soul.

It is estimated that close to 20 million Americans practice yoga, with the majority of fitness clubs offering instruction. Retailers such as Wal-Mart and REI stock up on yoga accessories such as DVDs, apparel, mats, and other equipment. The average yoga practitioner's annual expenditure for enlightenment turns out to be $1,500. According to reports, Nike is scheduled to launch its first yoga shoe.

Well, where there is business there are new rules and vested interests that transcend talking about the virtues of the exercise form. Marketing of spirituality, irrespective of good or bad karma, has caught on in the West. Western followers are already familiar with the works of Deepak Chopra, Sri Sri Ravi Shankar of the Art of Living, and Bhagwan Rajneesh, who appealed to his audience through a modern interpretation of Buddhist philosophy.

India has its own fears in the matter. The realm of the World Trade Organization (WTO)?intellectual rights, trademarks, patents, and copyrights?threatens to infringe on an area that India considers to be its own fief. India feels that it stands to lose its traditional rights over yoga and related ancient fields of study about medicine and health, and their possible revenue streams, if it does not act fast. Thus, India's Science and Technology (S&T) ministry is pushing for a more thorough patenting of the country's traditional knowledge base to prevent future misuse and bio-piracy. Yoga is one area that is being examined with considerable zeal.

It may be recalled that India raised quite an international uproar when America's Ricetec, Inc. was granted a patent for the basmati variety of fragrant rice in 1997. The rice has been grown for centuries in the Himalayan foothills, and India has since won the patent battle for basmati. Later, the U.S. Patent Office revoked the turmeric patent on the basis of a complaint by the New Delhi-based Council for Scientific and Industrial Research (CSIR). The patent had been granted in March 1995 to two nonresident Indians. As turmeric has been used for thousands of years for healing wounds and rashes, CSIR challenged the patent on the ground that it lacked novelty. The U.S. Patent Office upheld the objection and cancelled the patent.

India has taken note of future attempts at bio-piracy, which in a way is similar to people booking Internet domain names, i.e., cyber-squatting. "We want to completely patent our age-old methods and techniques to protect them. We have to protect our traditions and our database. India is filing for more and more patents every day,'' says S &T Minister Kapil Sibal.

According to a press statement by the S&T ministry, the government is making a digital database of 1,500 yoga postures and their therapeutic properties that can be used to oust the 134 patents on yoga accessories, 150 yoga-related copyrights, and 2,315 yoga trademarks that the US Patent Office has issued so far.

This database, comprising body-cleansing practices, breathing exercises, yoga symbols called mudras, postures, and special practices such as floating in water, will be digitally documented in five major international languages so that it can be networked to the main patent offices around the world. The National Institute of Science Communication and Information Resources (NISCIR), under the aegis of the S&T ministry, is building the nearly ten-million-page digital database for the Department of Ayurveda, Yoga, Naturopathy, Unani, Sidha, and Homoeopathy under the health ministry. The database will also help avoid expensive litigation to undo rights already granted. To reverse them, India has to move the World Intellectual Property Organization (WIPO).

India's Economic Times newspaper reports that many rights have been secured by nonresident Indians, such as Bikram Chowdhury. According to the report, "Chowdhury used a copyright on his book in which he described his sequence of yoga postures to prevent others from teaching them, although the postures themselves were not under any form of protection. He got protection for a sequence of 26 postures called asanas to be performed at a particular atmospheric temperature. While the postures are straight out of India's tradition, the temperature requirement, the ambience, and accessories such as the mat spread on the floor are his own, as justifications for the protection, an official source said. The Indian government now fears that someone may get market monopoly for the Buddhist way of meditation called vipassana and transcendental meditation taught by [UP-based] Maharshi Vedic University. The government faces another problem, with no easy solution in sight.''

Many in India feel that the country has already been on the receiving end of the new international intellectual property agreement (known as Trade-Related Aspects of Intellectual Property Rights (TRIPS), which many countries had to forcible ink when nobody understood the consequences of patents being pushed by multinationals to protect their interests). It is estimated to cost India's economy over $700 million each year, while creating only $57 million in profits for multinationals. Of particular interest has been the deleterious impact on the Indian pharmaceutical industry.

It may be recalled that last December India took the third and final step (earlier amendments were in 1999 and 2002) in ending India's 35-year-old process patent regime and changed over to a product patent, as in Western countries. This was the result of the 1995 WTO agreement of which TRIPS is a part. The earlier system was designed to encourage low-cost manufacturing of drugs, developing the pharmaceutical industry, and making medicines widely available at low prices. Despite the great success of this system, its end was required by a WTO agreement demanding that all countries (with some exceptions) switch to product patents.

There is considerable criticism against the new patent regime. One expert has been quoted as saying, "The agreement on TRIPS prescribes worldwide minimal standards for patent protection. No country adopting a market economy and keen to be integrated in the world economy can do without WTO membership, and so has to swallow the TRIPS pill as well. WTO/TRIPS stands for a re-colonization of the economically weak countries. The patent right is an obstacle in the fight against the AIDS epidemic. These economic rules of the game are partly to blame for the fact that people are dying.''

However, the Indian government is trying to ensure that India is able to protect its interest when it comes to yoga, which is of particular interest to the West. It is expected that India's more than 4,000-year-old yoga traditions may be up for grabs, leading to several disputes in the near future. The systems of yoga are based on the Hindu philosophy of renunciation. But business is business.

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