While TRIPS enshrines the rights of inventors and creators, instead of protecting TK, the current IP regime has facilitated its commercialization by individuals or entities, completely leaving out the original holders of the knowledge out of the loop of benefit sharing. Many patents have been granted in the US and UK to foreign bioprospectors on medicines and products that evolved out of TK. For example, India was affected due to this biopiracy and had to fight it out in international courts to revoke patents granted to the “use of neem as fungicide,” “turmeric as a wound healing agent” (Box items 1 and 2) and on “basmati rice for its special flavor and taste.” In response to such concerns about such misappropriation of TK, defensive arguments such as “TK is prior art in India but not in the US, hence patentable there” have been evoked, thus demonstrating how the definitions and provisions of TRIPS are modifiable to suit convenience.

Need to prove TK as prior existing knowledge

In countries such as the US, prior existing knowledge does not include information orally passed down generations. Journal publication and database information alone constitutes prior art. Ironically, thus, the burden of making TK come into the definition of “prior existing knowledge” is on countries holding the TK. They are now resorting to document the vast storehouse of information in regional languages into multilingual digital libraries that can be accessed by patent examiners before granting TK-related patents.