Protected but Not Profitable: Rethinking India’s Traditional Knowledge Regime from Turmeric to TKDL :Author: Palak Khatri
India’s response to the 1995 turmeric and 2000 neem patent disputes produced a strong defensive framework for traditional knowledge (TK): Section 3(p) of the Indian Patents Act, 1970, and the Traditional Knowledge Digital Library (TKDL), a repository of prior art used to block patents on already-known knowledge. Yet these mechanisms share a limit; they stop misappropriation but create no obligation to compensate the communities whose knowledge is used. This article examines that gap through two contrasting cases: the turmeric revocation where credit went to the state’s scientific apparatus while originating communities received nothing, and the Kani tribe’s benefit-sharing trust over the drug Jeevani, where TK produced income only through voluntary negotiation not legal entitlement
ARTICLE
Abstract
India’s response to the 1995 turmeric and 2000 neem patent disputes produced a strong defensive framework for traditional knowledge (TK): Section 3(p) of the Indian Patents Act, 1970, and the Traditional Knowledge Digital Library (TKDL), a repository of prior art used to block patents on already-known knowledge. Yet these mechanisms share a limit; they stop misappropriation but create no obligation to compensate the communities whose knowledge is used. This article examines that gap through two contrasting cases: the turmeric revocation where credit went to the state’s scientific apparatus while originating communities received nothing, and the Kani tribe’s benefit-sharing trust over the drug Jeevani, where TK produced income only through voluntary negotiation not legal entitlement. Drawing on the AYUSH sector’s rapid growth and the 2024 WIPO Treaty on Intellectual Property, Genetic Resources and Associated Traditional Knowledge, the article argues India must move from a defensive TK regime toward one linking TKDL-based patent rejections to compulsory benefit sharing.
Keywords: Traditional Knowledge, Benefit-sharing, Turmeric patent, Kani tribe, AYUSH sector, TKDL
Introduction: Two Different Wins
Back in 1995, the USA Patent and Trademark Office awarded a patent to the vulnerary properties of turmeric to two researchers at the University of Mississippi Medical Center. In 1997, the Council of Scientific and Industrial Research established that the ‘invention’ was merely centuries-old Indian vernacular knowledge, and the patent was revoked. A similar incident followed at the European Patent Office, wherein the patent on the antifungal properties of neem was revoked after learning that this know-how was already common knowledge in India. The contested right here was the novelty requirement, later codified as Section 3(p) of the Indian Patents Act, 1970, which prevents patenting an invention that is traditional knowledge. Beyond the widespread cheers for these revoked patents lies a major gap: India successfully protects traditional knowledge from being stolen, but does virtually nothing to ensure its keepers are paid for it.
The Gap in the Law
Section 3(p) functions not as a benefit, but rather a barrier. While it specifies what to reject, it provides no direction on who is to be compensated when traditional knowledge is used legitimately and profitably. Patent law was built around an individual inventor and a one-time grant of exclusive rights, a model intended for the lab, not for knowledge that is collective, oral and refined across generations with no single creator to credit. India has adapted this individual-inventor framework to traditional knowledge by extension, relying heavily on the Traditional Knowledge Digital Library (TKDL), built after cases like turmeric’s to supply prior art at scale, rather than building a regime for its collective character. The National IPR Policy of 2016 admitted this gap, promising to study a sui generis system for traditional knowledge. A decade later, this remains nothing more than a policy aspiration rather than enacted law
The Turmeric Patent
The legal dispute with respect to turmeric shows how this strategy functions and where it fails. The patent granted to the University of Mississippi covered nothing beyond what Indian households had been practicing for centuries, and the CSIR’s opposition succeeded on that basis. The patent was revoked, and the case remains a landmark. But when we look closely, the CSIR secured the credit, whereas the millions of households whose ancestral knowledge was at stake received nothing, since revoking another’s monopoly is not the same as granting income to the source community. This reasoning stops an adversary from profiting, but does nothing to redirect that profit toward the people whose know-how made it possible.
The Kani Exception
The Kani tribe’s trust arrangement over the Jeevani drug complicates the picture rather than confirming it. Tropical Botanic Garden and Research Institute, Kerala developed an anti-fatigue herbal drug from the traditional knowledge of the tribe about the Arogyapacha plant (Trichopus zeylanicus), and thereafter licensed it to Arya Vaidya Pharmacy, directing license revenue into a trust for welfare projects. Traditional knowledge, in this case, produced income for the people who held it, and not merely protection for the country that claimed it, unlike that of the turmeric case. These two cases used completely different instruments to reach entirely different outcomes. One relied on documentary evidence while the other on a voluntary contract negotiated from the beginning. Nothing under the Indian statutes required the Jeevani-style outcome, and nothing prevents it from remaining an exception, cited so often mainly since successors are rare. This anomaly is the point; whether TK holders profit depends on whether an institution chooses negotiation, not on any entitlement they can invoke as of right.
The Way Forward
Adversarial defence and voluntary agreements are not enough of a substitute for a system. Both are occasional, one triggered only when a bad patent is filed or challenged, and the other when an institution negotiates in good faith. None of these binds anyone to pay the TK holders as a statutory rule. The AYUSH sector alone grew from approximately 2.85 billion USD to 18.1 billion USD between 2014 and 2020, leaving behind all the benefit-sharing agreements struck in that period. What India actually needs is a statutory connection between the defensive mechanism of the TKDL and compulsory benefit-sharing obligations. Through this, every time the TKDL prior art bars a patent application, a royalty shall fall due into a community fund supervised by the AYUSH Ministry along with legal aid for defending collective rights. This helps repurpose Section 3(p) from a regulatory ban into a mechanism for the right to compensation addressing the lacunae left open by the turmeric and Jeevani disputes.
Conclusion: Beyond Protection
The turmeric case demonstrated how India can defend its traditional knowledge while the Jeevani case established that in certain circumstances it can also compensate the rightful knowledge-holders. That outcome remains an exception rather than the rule. The WIPO Treaty on Intellectual Property, Genetic Resources and Associated Traditional Knowledge, adopted in May 2024 and heavily promoted by India, will become legally binding three months after its fifteenth ratification. Whether or not India shifts from this activism into ratification, and into a domestic amendment to its Patent Act, will show if the new generation closes the gap between protection and profit, or adds another chapter to a history of winning the battle while the reward goes uncollected.
References:
· The Patents Act, 1970, § 3(p) (India).
· National IPR Policy, Department for Promotion of Industry and Internal Trade, Ministry of Commerce and Industry, Government of India (2016)
· WIPO, Treaty on Intellectual Property, Genetic Resources and Associated Traditional Knowledge (adopted 24 May 2024, Geneva)
· Invest India, "AYUSH" Sector Overview
· "The Kani Learning," Down To Earth