Patenting Indigenous Knowledge: Challenges and Controversies

For centuries, indigenous communities around the world have developed deep knowledge about medicinal plants, agricultural practices, and ecological systems. This knowledge, passed down through generations, has contributed enormously to modern science and industry. Yet, when it comes to legal ownership and protection, indigenous knowledge often falls through the cracks of modern intellectual property systems. The result? A growing number of cases where corporations and researchers patent traditional practices as their own inventions – a phenomenon widely known as biopiracy. Understanding how and why this happens is essential for anyone interested in the relationship between environment, society, and justice.

What is indigenous knowledge? 🔗

Indigenous knowledge (IK), also referred to as traditional knowledge (TK), refers to the skills, practices, innovations, and understanding that indigenous and local communities have developed over centuries through direct interaction with their environment. It covers a wide range of domains – from medicine and agriculture to weather forecasting and biodiversity conservation. This knowledge is not static; it evolves as communities adapt to changing environments and challenges.

A key characteristic of indigenous knowledge is that it is typically collective in nature. It belongs to entire communities rather than individual inventors. It is also often orally transmitted, meaning it may not exist in written or formally documented form. These two features – collective ownership and oral tradition – set it apart from the kind of knowledge that Western patent systems are designed to protect.

Why indigenous knowledge matters 🔗

Indigenous knowledge has enormous practical value. A large portion of the world’s population, particularly in developing countries, depends on traditional medicine for healthcare. In India alone, traditional medical systems like Ayurveda, Unani, Siddha, and Yoga serve the healthcare needs of a vast population and support the livelihoods of millions. Globally, traditional farming techniques, pest management practices, and ecological stewardship methods developed by indigenous peoples have proven effective for sustainable resource management.

Beyond practical applications, indigenous knowledge carries deep cultural and spiritual significance. It is tied to the identity, history, and worldview of communities. When this knowledge is taken and commercialised without consent, it is not just an economic loss – it is a cultural violation.

The problem with patents and indigenous knowledge 🔗

Modern patent systems are built on a specific set of principles: an invention must be novel, non-obvious, and useful to qualify for patent protection. The inventor is typically an individual or a corporation, and the patent grants exclusive rights for a limited period. This framework works well for new technologies and innovations developed in research labs, but it clashes fundamentally with the nature of indigenous knowledge.

Why traditional knowledge does not fit the patent framework 🔗

There are several reasons why indigenous knowledge struggles within conventional IP systems. First, since traditional knowledge has been used for generations, it does not meet the novelty requirement in the eyes of patent law – at least not when properly examined. However, because this knowledge often exists in local languages and oral traditions rather than in published academic papers, patent examiners at international offices frequently cannot access it during prior art searches. This creates a dangerous gap: knowledge that is centuries old can appear “new” to a patent examiner who simply cannot find documentation of it.

Second, patent law generally recognises individual inventors, not communities. Indigenous knowledge is collectively developed and owned, making it incompatible with the individual-centred model of patent rights. Third, many indigenous communities lack the financial resources, legal expertise, and institutional support needed to navigate complex patent systems and defend their rights.

What is biopiracy? 🔗

Biopiracy occurs when biological resources or traditional knowledge from indigenous communities are commercially exploited – often through patents – without proper authorisation, acknowledgement, or benefit-sharing. As The Conversation explains, biopiracy happens when researchers or organisations take biological resources without official consent, primarily from less affluent countries or marginalised communities. This practice has affected products ranging from medicinal plants to agricultural crops.

The issue is not simply about economics. When a corporation patents a remedy that a community has used for centuries, it can effectively restrict that community’s own access to its knowledge. The power imbalance between multinational corporations with large legal teams and indigenous communities with limited resources makes this problem especially acute.

Landmark biopiracy cases from India 🔗

India has been at the centre of some of the most well-known biopiracy disputes, which ultimately shaped how the country – and the world – approaches the protection of indigenous knowledge.

The turmeric patent case 🔗

In 1995, the United States Patent and Trademark Office (USPTO) granted a patent to researchers at the University of Mississippi for using turmeric in wound healing. This was startling, given that turmeric has been a household remedy in India for thousands of years – used in cooking, medicine, and religious ceremonies. The Indian Council of Scientific and Industrial Research (CSIR) challenged the patent by submitting evidence from ancient Sanskrit texts and modern scientific literature. In 1997, the USPTO revoked the patent, acknowledging that turmeric’s healing properties were well-established prior art. This case became a turning point in global conversations about biopiracy and traditional knowledge protection.

The neem patent case 🔗

Neem (Azadirachta indica) is often called the “village pharmacy” in India due to its wide range of medicinal and agricultural uses. In the 1990s, the European Patent Office granted a patent to W.R. Grace, a US company, and the US Department of Agriculture for a method of using neem oil as a fungicide. Indian government agencies and NGOs – including the Research Foundation for Science, Technology and Ecology – filed a legal opposition, providing extensive evidence that neem’s pesticidal properties had been common knowledge in Indian agriculture for centuries. The EPO eventually revoked the patent, but only after a prolonged and expensive legal battle.

Lessons from these cases 🔗

Both the turmeric and neem cases exposed a critical vulnerability: India’s vast traditional knowledge existed primarily in languages like Sanskrit, Hindi, Arabic, Urdu, and Tamil, making it inaccessible to patent examiners at international offices. Challenging a wrongly granted patent was time-consuming and expensive – taking years and costing hundreds of thousands of dollars per case. India needed a more proactive, systematic solution.

India’s Traditional Knowledge Digital Library (TKDL) 🔗

The experiences with the turmeric and neem patents directly led to one of the most innovative defensive strategies against biopiracy: the Traditional Knowledge Digital Library (TKDL).

What is the TKDL? 🔗

Established in 2001 as a collaboration between the Council of Scientific and Industrial Research (CSIR) and the Ministry of Health and Family Welfare, the TKDL is a digital repository that systematically documents traditional medical knowledge from India’s major medicinal systems – Ayurveda, Unani, Siddha, Yoga, and Sowa Rigpa. The database translates and classifies this knowledge into five international languages (English, German, French, Spanish, and Japanese) using an innovative classification system called the Traditional Knowledge Resource Classification (TKRC).

The core idea is straightforward: by making traditional knowledge accessible and searchable for patent examiners worldwide, the TKDL serves as a prior art reference that can prevent wrongful patents from being granted in the first place.

Scale and scope of the TKDL 🔗

The numbers behind the TKDL are impressive. As of recent reports, the database has transcribed over 4.18 lakh (418,000+) formulations from ancient Indian medical texts, covering Ayurveda, Unani, Siddha, Yoga, and Sowa Rigpa. These formulations have been converted from texts originally written in Sanskrit, Hindi, Arabic, Persian, Urdu, and Tamil into formats that patent examiners can easily search and understand.

The TKDL also introduced approximately 200 new sub-groups under the International Patent Classification system, significantly improving the quality of prior art searches related to traditional medicine. This was a groundbreaking development – a developing country directly influencing global patent classification standards.

Agreements with international patent offices 🔗

A critical factor in the TKDL’s effectiveness is its access agreements with major patent offices worldwide. Patent examiners at offices including the European Patent Office (EPO), the USPTO, the Japan Patent Office, the UK Patent Office, and several others have been granted access to the TKDL database. Under these non-disclosure agreements, examiners can use the TKDL during patent search and examination but cannot share its contents with third parties.

This arrangement allows patent offices to identify and reject applications that claim traditional Indian knowledge as novel inventions – without requiring India to fight expensive legal battles after patents are granted.

Impact and success 🔗

The results have been significant. According to the CSIR, the TKDL helped get more than 200 patent applications based on traditional Indian medicine withdrawn or rejected by 2011. The European Patent Office alone identified 36 patents making improper use of Indian traditional knowledge after gaining access to the database. In some of these cases, the EPO refused to grant patents, while in others, applicants voluntarily withdrew their applications.

One notable example involved Colgate-Palmolive, which filed a patent application in 2010 for a mouthwash containing extracts from ingredients traditionally used in Indian medicine. The TKDL team provided evidence from ancient texts, and the patent was withdrawn. Cases involving Ashwagandha (Indian Ginseng) followed similar patterns – patents were challenged and revoked using TKDL documentation.

Beyond individual cases, the TKDL’s very existence has likely had a deterrent effect, discouraging applications that misappropriate Indian traditional knowledge. The cost savings are also substantial – challenging a patent after it is granted can cost $200,000 to $600,000 per case. The TKDL protects hundreds of thousands of formulations without requiring separate legal challenges for each one.

Criticisms and limitations of the TKDL approach 🔗

Despite its successes, the TKDL model is not without criticism. Some scholars and activists, including prominent environmental activist Vandana Shiva, have raised concerns about the library itself becoming a tool for knowledge appropriation. By digitising and making traditional knowledge accessible in international formats, there is a risk that it becomes easier for outside parties to access this knowledge without ever engaging directly with indigenous communities.

Additionally, the TKDL focuses primarily on codified knowledge from written texts. A vast amount of indigenous knowledge exists only in oral traditions and community practices that are not captured in any database. Communities in other countries – particularly those without the institutional infrastructure that India has – face even greater challenges in protecting their knowledge.

There is also the broader question of whether defensive protection (preventing others from patenting traditional knowledge) is sufficient, or whether indigenous communities also need positive protection – the ability to actively control, license, and benefit from the use of their knowledge. Current international frameworks, including the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore, continue to negotiate these complex issues.

The global picture: where do we go from here? 🔗

The tension between indigenous knowledge and patent systems is not unique to India. Countries across Africa, Latin America, and Southeast Asia face similar challenges. The 1992 Convention on Biological Diversity recognised the need to respect and protect traditional knowledge, and the Nagoya Protocol (2010) established frameworks for access and benefit-sharing related to genetic resources. In 2024, WIPO concluded a new treaty on intellectual property, genetic resources, and associated traditional knowledge – a milestone in international efforts to address these issues.

However, implementation remains uneven. Many developing countries lack the resources to create TKDL-like databases or to enforce benefit-sharing agreements. The fundamental tension persists: patent systems reward individual innovation and novelty, while indigenous knowledge is communal, intergenerational, and evolving.

Moving forward, solutions will likely require a combination of approaches – stronger international treaties, national legislation like India’s Biological Diversity Act of 2002, community-level documentation initiatives, and reforms to patent examination procedures that better recognise traditional knowledge as prior art.

What do you think? Should indigenous communities have the right to patent their own collective knowledge, even if it has been shared openly for centuries? And as traditional knowledge databases become more common, how can we ensure they empower communities rather than simply making their knowledge more accessible to commercial interests?

References

1. https://www.wipo.int/tk/en/
2. https://www.csir.res.in/en/documents/tkdl
3. https://web.law.duke.edu/cspd/itkpaper4/
4. https://theconversation.com/biopiracy-when-indigenous-knowledge-is-patented-for-profit-55589
5. https://www.mondaq.com/india/patent/586384/traditional-knowledge-and-patent-issues-an-overview-of-turmeric-basmati-neem-cases
6. https://www.lexology.com/library/detail.aspx?g=1c132aa5-97af-4164-af22-ca3c240ab172
7. https://en.wikipedia.org/wiki/Traditional_Knowledge_Digital_Library
8. https://www.wipo.int/meetings/en/2011/wipo_tkdl_del_11/about_tkdl.html
9. https://pmc.ncbi.nlm.nih.gov/articles/PMC9999701/