In my only previous foray into the issues of protection for traditional knowledge, I was quite critical of the legal regime used in Ghana to claim control and profit over the knowledge creations of indigenous peoples. Even while criticizing the law, however, I admitted that there was a great deal of abuse that needed to be remedied, I just questioned how a remedy could be fashioned. Now I have an opportunity to illustrate that abuse and also give concrete form to my doubts.
This short blog post, with links to other stories, tells how the Colgate company has successfully patented, in the U.S., an herbal toothpaste recipe that apparently has been used for centuries by natives of India. Needless to say, the Indian government is not happy, and the case seems to illustrate the potential abuse of traditional knowledge that the WIPO and other groups would like to remedy.
One question, of course, is whether a patent should be available at all for this product. This is not just an abuse of traditional knowledge but also, from a different perspective, perhaps, an abuse of the public domain. In the U.S., as in most countries, patents are granted only for inventions deemed “novel.” If this mixture of common herbs has been used in India for centuries, where is the novelty? Colgate simply wants to sell to Indians something they have been making for themselves for a long time.
But this raises the second question I want to consider. Is it possible that allowing a patent for this product will actually have a social benefit by making the toothpaste more widely available to those who want to use it? Many Indians probably cannot be bothered to make the paste but would be willing to pay a reasonable price for a pre-made version. If there would, in fact, be a social benefit, perhaps the patent should be allowed. This seems to be the position of the Indian government; their object seems to be to letting an American company make the profit more than it is to the idea of profit itself.
So if a patent is to be allowed, the next step would be to find a way to protect the legitimate interests of the inventors of this traditional formula. That is where the problems really come up, in deciding what those legitimate interests are and whose they are.
For example, are there some groups in India who should be able simply to stop the commercial exploitation of this product? If we determine that there is social value to the commercialization, then we face a situation where protection of traditional knowledge might cause social harm. We might opt to make such a decision out of respect for native peoples, but it is a calculus that needs careful consideration.
If we allow the commercialization, equity suggests that profits should be shared with the native peoples who developed the product. But just who are those peoples? Who stands in the position of representing Indians who have made this dental powder for “perhaps 1000s of years?” The Ghanaian solution is to let the government stand in the place of the indigenous creators of traditional knowledge, and in this patent dispute it sounds like the Indian government would like to follow the same path. To me this question of “cui bono” is the most important and problematic aspect of the debate about protecting traditional knowledge. If we could find a way — and it will be different in nearly every situation — to actually let the indigenous creators garner some benefit from their traditional knowledge, then I am all for doing so. But letting contemporary governments profit from knowledge passed down for centuries amongst people who occupied the same territory that that government now rules — even if, as may be the case, the descendants of those peoples do not, in the current situation, feel well represented by that government — is a very imperfect solution indeed.
First off IANAL, however it appear to me the Colgate patent appears to fail on prior art, with Colgate’s introduction of red iron oxide failing the obviousness test for innovation, this patent should fail if challenged. Also the argument that patenting==widespread availability fails in that while Colgate may be likely to actually produce this as a product it should be remembered that many patents are held by patent trolls who produce nothing but law suits. Nor is there anything to stop Colgate, or anyone else from producing this tooth paste without a patent. Indeed a patent would limit the ability of producers to create a broad competitive market for such products benefiting comsumers in India and elsewhere.