Section 3(p): Traditional Knowledge Is Not an Invention

In one line

Clause (p) answers a turmeric patent inside India, and it cannot answer one granted abroad.

In exam wording: clause (p) of section 3 of the Patents Act 1970 provides that an invention which, in effect, is traditional knowledge or which is an aggregation or duplication of known properties of traditionally known component or components is not an invention within the meaning of the Act; the general principles in section 83 provide, among other things, that patents are granted to encourage inventions and to secure that they are worked in India on a commercial scale, that they are not granted merely to enable patentees to enjoy a monopoly for the importation of the patented article, that they do not impede the protection of public health and nutrition and should act as an instrument to promote the public interest especially in sectors of vital importance for the socio-economic and technological development of India, that they do not prohibit the Central Government from taking measures to protect public health, that the patent right is not abused, and that patents are granted to make the benefit of the patented invention available at reasonably affordable prices to the public.

What clause (p) does

It removes the subject matter. It does not say that traditional knowledge belongs to somebody. It says that an invention which in effect is traditional knowledge is not an invention within the meaning of the Act, so the question of ownership never arises.

The two limbs.

In effect traditional knowledge. The test looks at the substance of the claim. A claim recast as an extract, a fraction or a standardised preparation is still caught if what it amounts to is the traditional knowledge.

An aggregation or duplication of known properties of traditionally known components. Combining two components each doing what it is known to do. This limb overlaps with clause (e), which excludes a substance obtained by a mere admixture resulting only in the aggregation of the properties of the components.

No definition of traditional knowledge is given in the Act. It has to be established as a matter of evidence, and that is why documentation matters more than doctrine in this area.

How it operates in practice

At examination. The Controller may refuse the application on the ground that the subject matter is not an invention.

At pre-grant opposition, section 25(1). Any person may in writing represent by way of opposition on the listed grounds, of which two matter here: clause (j), that the complete specification does not disclose or wrongly mentions the source or geographical origin of biological material used for the invention; and clause (k), that the invention so far as claimed is anticipated having regard to the knowledge, oral or otherwise, available within any local or indigenous community in India or elsewhere. The sub-section ends with the words "but on no other ground".