Well it is not just the US Government that protests the poor level of IP protection in other countries. With admirable Chutzpa, the Indian government has decided to lodge a protest against yoga-related patents issued by the US Patents & Trademarks Office.
The Indian Health Ministry is taking up the issue directly with the USPTO and the Indian Commerce Department is writing to the US Trade Representative against what India sees as a violation of rights over traditional knowledge.
The Indian Government has declared its readiness for a legal battle to get the patents and trademarks voided, claiming that the USPTO has been careless in granting patents and trademarks in matters related to traditional knowledge.
Bikram Choudhury applied for a patent on yoga practised in a steam-room. “It’s ridiculous to even think that an asana which has been practised for several years can be patented just because they think it is different. They have not been looking at the digital library,” claims an Indian official.
India is essentially telling the US authorities that there is a digital traditional-knowledge library, which includes much readily available and searchable reference material, and, where applicable,a proper search should be done before the USPTO grants a patent.
When governments get involved in the day to day work of other countries, particularly over what seems to be a minor issue or one of principle, it is worth looking for major financial ramifications and trying to read the subtext.
In this case, perhaps because I am a member of the stiff-necked people, I don’t think the real issue is Yoga at all. US Pharmaceutical Companies are being undercut by both Indian and Israeli Generic Companies who regularly manage to get patents voided because of lack of novelty. For example, recentlyUnipharm – an Israeli generic manufacturer – won an appeal and voided Merck’s Fosalan Patent as lacking novelty and inventive step. See http://blog.ipfactor.co.il/2007/05/17/israel-supreme-court-clears-unipharm-of-patent-infringement/
The USPTO examiners tend to confine their searches to US patent databases only, arrogantly forgetting that some inventions are patented in other countries such as the UK, or even in other languages, such as German, French and Japanese. Nor does a publication have to be part of the patent literature to be prior art that render an invention as lacking in novelty or inventive step. Unipharm voided the Merck Fosalan patent after showing that the inventors published a poster at a conference prior to the patent application being filed.
In the US with its quirky firt to invent rule and grace period, the patent is valid. It was voided in Israel and is similarly invalid elsewhere.
The US steam-rolled a contraversial patent term extension mechanism for pharmaceuticals as a way of protecting their own industries. The legislation which has been adopted by other so-called Bolar companies, has more to do with finance than with inventions, and little to do with promoting public health. In the past it will be noted, many countries didn’t even allow medical treatments to be patented at all.
Israel appears on the US Blacklist, allegedly for Copyright Infringement, but, I believe, more because of the success of companies such as Taro which was recently sold to an Indian company and Unipharm and Teva. See http://blog.ipfactor.co.il/2007/05/01/israel-remains-on-the-us-priority-watch-list-for-alleged-copyright-piracy/
India and China have also come under heavy US criticism, with the US threatening to take China to the WTO disciplinary committee. It may be worth remembering however, that despite the moral tone that the US spokesman takes when referring to poor levels of property and rights protection abroad, the US set up the WTO and pushed through GATT as they didn’t have enough weight to control the WIPO which is a democratic organization with one vote per country. Now though there are some small states with numerically insignificant populations (such as Israel), some countries such as India and China, for example do have large populations. Third World governments view GATT simply as an attempt to keep wealth with the Western Nations.
