1.      Twenty first century will be the century of knowledge, indeed the century of mind. Innovation is the key for the production as well as processing of knowledge. A nation's ability to convert knowledge into wealth and social good through the process of innovation will determine its future. The increasing knowledge gap between the developing and the developed world therefore, is a major concern.  This knowledge differential has to be
bridged in a short time frame by a mutual cooperation between the developing and the developed world. .

2.      Issues of generation, valuation, protection and exploitation of intellectual property (IP) are going to become critically important all
around the world. Exponential growth of scientific knowledge, increasing
demands for new forms of intellectual property protection as well as access
to IP related information, increasing dominance of the new knowledge economy over the old 'brick & mortar' economy, complexities linked to IP in
traditional knowledge and animate objects, will pose a challenge in setting
the new 21st century IP agenda.  Intellectual property will no longer be
seen as a distinct or self-contained domain, but rather as an important and
effective policy instrument that would be relevant to a wide range of
socioeconomic, technological and political concerns. The development of
skills and competence to manage IPR and leverage its influence will need
increasing focus; in particular, among the developing countries.

Developing World Concerns

3.      An understanding of the role of IPR in the process of innovation and the role of innovation itself in the process of development is crucial.  Let us
begin with the process of innovation itself.  Normally when we consider
innovation, we refer to only formal systems of innovation, namely that done
in universities, industrial R&D laboratories, etc.  Often not recognised is
the technology innovation that takes place in an informal system of
innovation, be it by artisans, farmers, tribes or other grassroot innovators. Indeed many societies in the developing world have nurtured and refined systems of knowledge of their own, relating to such diverse domains as geology, ecology, botany, agriculture, physiology and health.

4.      We are now seeing the emergence of terms such as 'parallel',  indigenous' and 'civilizational' knowledge systems.  Such knowledge systems are also expressions of other approaches to the acquisition and production of knowledge.  Indigenous knowledge and innovation systems must be sustained through active support to the societies that are keepers of this knowledge, their ways of life, their languages; their social organization and the environments in which they live.  The issues linked to IP protection of the indigenous knowledge and innovation are diverse, complex and sometimes highly emotive.

5.      One of the concerns of the developing world is that the process of globalization is threatening the appropriation of elements of this collective knowledge of societies into proprietary knowledge for the commercial profit of a few.    An urgent action is needed to protect these fragile knowledge systems through national policies and international understanding linked to IPR, while providing its development & proper use for the benefit of its holders.  We need a particular focus on community knowledge and community innovation.  To encourage communities, it is necessary to scout, support, spawn and scale up the green grass root innovation. Linking innovation, enterprise and investment is particularly important.  New models and new thinking on IP will have to be envisioned  to accomplish this.

6.      The local communities or individuals do not have the knowledge or the means to safeguard their property in a system, which has its origin in very
different cultural values and attitudes.  The communities have a storehouse
of knowledge about their flora and fauna - their habits, their habitats, their seasonal behaviour and the like - and it is only logical and in consonance with natural justice that they are given a greater say as a matter of right in all matters regarding the study, extraction and commercialization of the biodiversity.  A policy that does not obstruct the advancement of knowledge, and provides for valid and sustainable use and adequate intellectual property protection with just benefit sharing is what we need.

7.      The issues of the economics of community knowledge are truly complex. While it is true that many indigenous cultures appear to develop and transmit knowledge from generation to generation within a system, individuals in local or indigenous communities can distinguish themselves as informal creators or innovators, separate from the community. Furthermore,
some indigenous or traditional societies are reported to recognise various
types of  intellectual property rights over knowledge, which may be held by
individuals, families, lineages or communities.  Discussion of IPRs and
traditional knowledge should draw more on the diversity and creativity of
indigenous approaches to IPR issues.

Revisiting the IPR Systems

8.      The existing IPR systems are oriented around the concept of private
ownership and individual innovation. They are at odds with indigenous
cultures, which emphasize collective creation and ownership of knowledge.
There is a concern that IPR systems encourage the appropriation of
traditional knowledge for commercial use, and that too without the fair
sharing of benefits of the holders of this knowledge.   They violate the
indigenous cultural percepts by encouraging the commodification of such
knowledge. UNDP estimates that medicinal plants and microbials from the
South contribute at least $3 billion a year to the North's pharmaceutical
industry; however, not even a small fraction of this gets reploughed to the
developing world.

9.      New experiments are beginning to emerge on benefit sharing models for indigenous innovation.  An experience in India is worth sharing. It relates to a medicine that is based on the active ingredient in a plant, trichopus
zeylanicus, found in the tropical forests of southwestern India and
collected by the Kani tribal people. Scientists at the Tropical Botanic Garden and Research Institute (TBGRI) in Kerala learned of the tonic, which is claimed to bolster the immune system and provide additional energy, while on an   expedition with the Kani in 1987.   These scientists isolated and
tested the ingredient and incorporated it into a compound, which they
christened "Jeevani", the giver of life. The tonic is now being manufactured
by a major Ayurvedic drug company in Kerala. In 1995, an agreement was
struck for the institute and the tribal community to share a license fee and
2% of net profits. This marks perhaps the first time that for IP held by a tribe, a compensation in the form of cash benefits has gone directly to the source of the IP holders.  We need to multiply such examples globally.

10.      The industrial property systems were set up centuries ago for inanimate objects and that too in formal systems of innovation. A emerging challenge is to look at the systems that will deal with animate objects (such as plants and animals) and with informal systems innovation (such as those by grass root innovators like farmers, artisans, tribes, fishermen and so on).
The standard intellectual property systems will certainly not suit such
innovators and their innovations. We, therefore, need innovation in the
intellectual property system itself! Shorter duration patents for smaller
innovations, including specific improvements in the traditional knowledge
need to be conceived. They may involve a simple registration-cum-petty
patent system, where the inventive threshold would be lower but even a small improvement in material, process, product or use could be protected at much lesser costs and for shorter duration.

11.      While recognizing the market-based nature of IPRs, other non-market-based rights could be useful in developing models for a right to
protect traditional knowledge, innovations and practices. To date, debate on IPRs and biodiversity has focused on patents and plant breeders' rights.
Provisions under undisclosed information or trade secrets could be invoked
to protect traditional knowledge not available in the public domain.
Geographical indications and trademarks, or sui generis analogies, could
also be the alternative tools for indigenous and local communities seeking
to gain economic benefits from their traditional knowledge. The potential
value of geographical indications and trademarks is in protecting plants and
germplasms that are specific and unique to geographical regions.  They could protect and reward traditions while allowing innovation. They will emphasize the relationships between human cultures and their local land and environment. They are not freely transferable from one owner to another. They can be maintained as long as the collective tradition is maintained.

IPR & Traditional Medicine

12.      The issue of access to and use of indigenous knowledge linked to
traditional knowledge is becoming highly emotive, not the least because of
the huge implications of the economics of such traditional knowledge; an
example being the 60 billion dollars world market on herbal products being
expected to grow to 5 trillion dollars by the year 2020. World Health
Organisation (WHO) defines traditional medicine as "the sum total of all the
knowledge and practices, whether explicable or not, used in diagnosis,
prevention and elimination of physical, mental or social imbalance and
relying exclusively on practical experience and observations handed down
from generation to generation, whether verbally or in writing".  Health care
providers worldwide including major pharmaceutical giants are turning to
incorporate many of these into their mainstream activities. As traditional
medicines are largely based on medicinal plants, indigenous to these
countries, where the system has been in vogue for several centuries, the
effort is on accessing them either directly or through the use of modern
tools of breeding and cultivation, including tissue culture, cell culture and transgenic technology. IP issues linked to such endeavours remain unresolved.

13.      WIPO has been sensitive to these concerns.  At a conference held in
October 1998, under the aegis of the World Intellectual Property  Organisation (WIPO) an agenda for the future of IPR in the field of traditional medicines was prepared, which prioritized activities in this area, namely, development of standards for the availability, scope and use of IPRs on traditional medicine in Asian countries, systematic documentation of traditional medicine for protection purposes, regional and inter-regional information exchange and compilation of the requisite data bases, etc.  This
agenda needs to be moved forward.

14.      The grant of patents on non-original innovations (linked to traditional
medicines), which are either based on what is already a part of the
traditional knowledge of the developing world, or a minor variation thereof,
have been causing a great concern to the developing world.  CSIR from India asked for a reexamination of the US patent No. 5,401,5041, which was granted for the wound healing properties of turmeric.  In a landmark decision, USPTO revoked this patent after ascertaining that there was no novelty; the innovation having been used in India for centuries.  The  case of the revocation  earlier this month of the patent granted to W.R. Grace Company and US Department of Agriculture on Neem (EPO patent No. 436257)  by European Patent Office, again on the same grounds of its use having been known in India, is another example.  Earlier this month, India has filed a reexamination request for the patent on  Basmati rice lines and grains   (US Patent No. 5,663,484) granted by the USPTO.  Therefore, there is a problem on the grant of such patents  linked to the indigenous knowledge of the developing world that needs to be addressed jointly by the developing world and the patent offices of the developed world.

15.      We need to understand that there is a distinction between the patents
that are granted based on modern research and patents, which can be
categorized as traditional knowledge based patents.   A recent study by an
Indian expert group examined randomly selected 762 US patents, which were granted under A61K35/78 and other IPC classes, having a direct relationship with medicinal plants in terms of their full text. Out of these, 762 patents 374 (49%) patents were found to be based on traditional knowledge. The fact that 408 patents have been granted by USPTO during March '2000 itself on several medicinal plants implies that there is an extreme urgency in addressing the issue of patents on traditional systems of medicine.  The
Governments in the developing world as well as members of public are equally concerned about the grant of patents for non-original inventions in the traditional knowledge systems of the developing world.    At International level there is significant level of support for opposing the grant of patents on non-original inventions.  For example, more than a dozen
organizations from around the world got together to oppose the EPO Neem
patent and the entire process took five years.  The process of opposition
is, however, extremely expensive and time consuming. A recent suggestion by USPTO provides a rational approach to solve these problems.

16.      Patent examiners, in the international patent offices,  when considering the patentability of any claimed subject matter, use available resources for searching the appropriate non-patent literature sources.   Patent literature, however, is usually wholly contained in several distinctive
databases and can be more easily searched and retrieved than can non-patent literature prior art that may be buried somewhere in the many and diverse sources of non-patent literature.  Therefore, we need to address the need of creating more easily accessible non-patent literature databases that deal with traditional knowledge. As rightly suggested by USPTO,  this should be a project for the SCIT Working Group of WIPO on Standards and Documentation in collaboration with International Patent Classification (IPC) Committee of Experts.  With the help of the developing countries, traditional knowledge can be documented, captured electronically, and placed in the appropriate classification within the IPC so that it can be more easily searched and retrieved.  This would help to prevent the patenting of products that have been based on the traditional knowledge of the developing world.

Traditional Knowledge Documentation

17.      Taking this suggestion further, it is proposed that the developing world should create a Traditional Knowledge Digital Library (TKDL).  The TKDL portal should have  a web based search interface providing full text search and retrieval of traditional knowledge.   The TKDL portal should have full data on  traditional medicine and practices including the pertinent
scientific literature.  Such a   portal should  include cross references, key words, comprehensive search interfaces, indexing & retrieval and it should  have a secured access on the web.  In future, TKDL can increase its canvas beyond the traditional medicine and  include other innovations based on traditional knowledge.

18.      The methodology and standards used in the creation of the TKDL portals should  be the same as those established by several of IP offices such as USPTO, European Patent Offices or WIPO's Intellectual Property Digital
Library (IPDL).  The search features should  include complex boolean
expression search, proximity searching, field searching, phrase searching,
right and left truncation, adjustable display format etc.  Search should  be
available on PC, key words, synonyms and guided search on traditional
knowledge classification.

19.      Eventually the creation of TKDL in the developing world  would serve  a bigger purpose in providing and enhancing its innovation capacity.   It
could  integrate widely scattered and distributed references on the
traditional knowledge  systems of the developing world in a  retrievable
form. It could  act as a bridge between the traditional and modern knowledge systems.  Availability of this knowledge in a retrievable form in many languages will give a major impetus to modern research in the  developing world, as it   itself   can then get  involved  in innovative research on adding further value to this traditional knowledge; an example being the development of an allopathic medicine based on a traditional plant based therapeutic.  Sustained efforts on the modernisation of the traditional knowledge systems of the developing world  will create higher awareness at national and international level and will establish a scientific approach, that will  ensure higher acceptability of these systems by practitioners of modern systems and public at large.

20.      IPC has been widely accepted by the patent authorities globally for
classification and retrieval of information.  A recent  study by an Indian
expert group has demonstrated that  IPC in its present form is adequate to
retrieve information pertaining to traditional knowledge, once IPC codes are integrated with the available traditional knowledge.  Therefore, sustained
IPC reforms for documenting the traditional knowledge may not be required. Patent examiners will be  facilitated by  the search facilities based on IPC
and key words (in one of the UN languages) with details in modern as well as traditional names. Such classification must remain internal to TKDL and
should become a search facility based on IPC and key words.

21.      There should be an effort to create a Traditional Knowledge Resource Classification (TKRC), which can be  utilized for storing the information,
so that it acts as a metafile and provides multi language capabilities to
TKDL. TKRC in the structure of IPC will offer a uniform acceptable solution,
it will serve as an instrument for the orderly arrangement of documents
relating to traditional medicinal plants and other traditional knowledge
resources.  It will serve as a basis for selective dissemination of information of traditional resources to all users of non-patented information.  A pioneering effort to create TKRC has been initiated in India at the behest of the Department of Indian Systems of Medicine and Homeopathy.

22.      Some other concrete recommendations that WIPO itself could follow up are as follows.

(i)      Under SCIT implementation plan of WIPO, a feasibility report on
traditional knowledge data bases has been planned by the end of the year
2000.  It is suggested that a specific project based on the Indian efforts
on traditional knowledge digital library (described in 17-21)  be taken up
at least by  the third quarter of  year 2000.

(ii)      For documenting traditional knowledge, it will be necessary  that a
unique traditional knowledge resource classification (TKRC) gets adopted
globally.  TKRC relating to more than  2000 medicinal plants has already
been completed by the Indian experts.  This classification will have to be
enhanced at a global level.  It is recommended that a TKRC Enhancement and Reform  Sub-Committee under IPC Reform Committee may be constituted at the earliest.  This will benefit quick documentation of traditional knowledge as well as further enrichment of international patent classification relating to traditional knowledge systems.

(iii)      The domain name www.tkdl.com may be taken up by WIPO as the global repository of traditional knowledge.  Each country, in turn, may pre-fix the name of their  country  to the global traditional knowledge library documentation, for example, www.india.tkdl.com.

(iv)      Once the National Traditional Knowledge Digital Libraries get created, they may  get included in the official list of international search
authorities (ISA) relating to non-patent literature.  Presently, there are 135 non-patent technical journals, periodical literature in the non-patent lists of ISA.

(v)      Once the traditional knowledge digital library by various member states gets created and integrated with www.tkdl.com, it will be  useful for the IP offices to take a review of the patents granted in traditional knowledge systems for non-original inventions.  Revocation of such patents by IP Offices will go a long way in addressing the emotive concerns of the
developing world on the issue of IPR based on indigenous knowledge.

IT, IPR and Innovation

23.      Information technology (IT) will play a major role in setting the global
IP agenda. The growing role of IT in IPR was recognised by WIPO, when a
decision to initiate Information Technology Projects was taken in 1998.  The
visionary remarks made by Mr. Kamil Idris, Director General, WIPO,  in 1998
are worth recalling.  He said "The first issue concerns information technology.  It is clear that Member States are resolved to make greater use
of the potential that information technology offers in promoting international cooperation in the field of intellectual property. Our consultations are demonstrating an emerging consensus on the establishment of a global information network, centred on WIPO and serving the interests of all the member states, especially developing countries, with the necessary technical support to ensure that all countries can derive immediate practical benefits from this project".   The  concept of WIPONET was born with this landmark policy statement and WIPONET is becoming  a reality today.

24.      WIPONET is being set up to narrow the information access gap that exists between the developed countries and developing countries; improve the flow of information concerning intellectual property rights among WIPO member states, regional intellectual property offices and the International Bureau; to improve access to and exchange of intellectual property information in terms of costs and access time; to improve intellectual property information dissemination; to consider the information needs and filing requirements of applicants and develop electronic services keeping in mind the need to provide benefits to applicants and intellectual property offices, and to other interested parties; to help guide the International Bureau to leverage information technologies and to improve the retrieval of intellectual property information through further development of international classifications of patents, trademarks and industrial designs as efficient search tools.

25.      Inadequate preparedness  of many national IP offices in most of the
developing countries is a serious concern.  The problem areas pertain to
manual and paper based operations, static manpower resources, rapid increase in the number of applications filed in recent years leading to inordinate delays in granting IPRs, non-uniformity in the examination, poor quality of search resulting in fresh objections even after the first examination report, inadequate search facilities and tools and lack of digital data &
networks.  Most seriously, IT has not yet been  inducted in the IP administration in most cases.

26.      It is expected that WIPONET will be making direct as will as indirect
contributions in the modernisation endeavour of national IP Offices.  It
will be a direct provider of systems and services.  It will be a facilitator for providing details on technologies and related standards. In addition, it will define minimum modernisation standards and provide an implementable mechanism through NFAP and future WIPONET support projects. WIPONET has the potential to make a  catalytic impact on the development of
national IT infrastructure.  There is a world of caution though.   Although
the National IP offices will get the basic IT infrastructure and provide
modernized environment, the full objectives of   WIPONET will not be
realized unless the developing  nations take urgent steps to utilize this
infrastructure effectively.

27.      The developing world faces several challenges as regards IPR and their role in innovation. Weak physical infrastructure in terms of inadequate IP offices, as explained above, is just one aspect; but  inadequate
intellectual infrastructure, poor public awareness and lack of  government
policies that are not in tune with the times are  some other hurdles.  Many
R&D institutions and industrial firms in the developing world have so far
focussed on imitative research or reverse engineering, and have depended
heavily on borrowed technology and, therefore, not created productive
national IP portfolio.   Apart from manpower planning for IPR protection
setting up of  patent training institutes and specialized courses, a judicious management of patent information is needed is the need of the hour.  This will require well-structured functioning of information creating centres, information documenters and retrievers, information users and information technology experts.

28.      Internet can play a huge role in the dissemination of traditional
knowledge of the communities (while bringing in added economic value to
these communities).  An example is the recent experiment in India of the
design of an e-commerce portal for Indian craftsmen and artisans, which will link individual craftsmen directly to designers and markets.  It will be possible through this portal for a garment buyer in any part of the world to
approach any craftsman directly, select a pattern, a weave and a fabric and
place his order with him.  This will mean not only a multiple increase in
the craftsman's income but also his direct interaction with the market.
This will unleash the creative skills to meet the demands of his market, and
further enhance the innovation capacity.   New challenges in IP protection
will emerge as internet becomes a major facilitator in commercialization of
traditional knowledge.

IPR & Technology Transfer to Developing World

29.      TRIPS has important provisions for a fair play in technology transfer
from which the developing world should benefit.  Article 7 of the TRIPS
Agreement states "the protection and enforcement of intellectual property
rights should contribute to the promotion of technological innovation and to
the transfer and dissemination of technology to the mutual advantage of
producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations."
Furthermore, Article 8.2 states "appropriate measures, provided they are
consistent with the provisions of the Agreement, may be needed to prevent
the abuse of intellectual property rights by right holders or the resort to
practices which unreasonably restrain trade or adversely affect the
international transfer of technology."

30.      Facilitating the access of developing countries to technologies required by them  constitutes one of the key elements in accelerating the pace of their economic and social development. Such access is generally the result of licenses and technology transfer agreements.  The fact of the matter is that the prospective technology seekers in developing countries face serious difficulties in their commercial dealings with technology holders in the developed countries. These difficulties arise for a variety of reasons.
Some  arise from the imperfections of the market for technology.  Some are
attributed  to the relative lack of experience and skill of enterprises and
institutions in developing countries in concluding adequate legal arrangements for the acquisition of technology.  Some arise due to
government practices, both legislative and administrative, in both developed and developing countries, which influence the implementation of national
policies and procedures designed to encourage the flow of technology to, and its acquisition by, developing countries.

31.      Some of these difficulties may be overcome by suitable safeguards in the domestic IPR laws of developing countries. In addition, the transfer and
dissemination needs of the developing countries have to be seen from the
point of view of the capacity of those in need of accessing the technologies, particularly where the cost of technology may be prohibitive due to economies of scale and other reasons. In such cases, in order to implement the related p