Introduction
Traditional knowledge (TK) is a type of intellectual property but also possesses distinct attributes. Unlike conventional intellectual property, TK encompasses the skills, practices, and knowledge that transmit between generations often forming an integral part of a community cultural and spiritual identity.[1] Often transmission remains the primary mode of transfer, making TK vulnerable in the absence of proper documentation. Despite its value, TK lacks formal recognition, while companies may exploit associated biological resources and knowledge a practiced referred as biopiracy.[2]
The Council for Scientific and Industrial Research has established the Traditional Information Digital Library (TKDL) as a means to maintain and authenticate traditional information. However, the existing intellectual property framework, which prioritizes individual rights, faces challenges in effectively addressing the collective ownership and intergenerational nature of TK.[3] At the international level, the World Intellectual Property Organisation (WIPO) is in the process of negotiating a legally binding instrument under the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC).[4] This instrument aims to establish minimum standards of recognition, protection and enforcement of rights relating to TK, genetic resources, and traditional cultural expressions thereby preventing misappropriation and ensuring equitable benefit sharing.
In India, defensive protection of TK is supported under the Patents Act, 1970. Patents can be challenged on the basis of TK using Section 25.,[5] and 64.,[6] and the Act contains relevant provision such as Section 2,[7] 3,[8] and 15, which define inventions and exclude certain subject matter from patentability and empower the Controller to require amendments before acceptance.
A patent refers to the government’s grant of an invention to a third party in exchange for full disclosure of the invention. However, there are certain exceptions, as mentioned in Section 3, which include indigenous varieties and biological resources. The government takes this action to safeguard the rights of indigenous people. The government takes this action to safeguard the rights of indigenous people.
This blog delves into the recent verdict of the Madras High Court, which denied a patent for Panchagavya-related traditional knowledge. This blog also delves into the interpretation of Section 3(p),[9] with the aim of breaking the silence and safeguarding traditional knowledge. the traditional knowledge.
In the case of M/s. The Zero Brand Zone Pvt. Ltd. v. The Controller of Patents & Designs, a patent application was filed for an environmentally friendly lamp created using a composition derived from Panchagavya, which is a combination of cow milk, cow ghee, cow butter, cow curd, cow dung, and cow urine, combined with leaves from traditional herbal medicine. In this case, the company used the natural material Panchagavya, a mixture of cow-derived substances common in Indian culture. Traditional medicine also combines the lamp with leaves, providing an herbal remedy. This patent application was rejected by the Controller of Patent and Design, and the company filed an appeal. The company has filed an appeal in court.
Issues before the courts
- Is the preparation of a lamp from composite materials an invention, or is it considered traditional knowledge? knowledge.
The court examined Section 3(p), which defines an invention as traditional knowledge or the duplication of known properties of a traditionally known component and prohibits it from being the subject. In the current case, the material under dispute is Panchagavya, which has medicinal value. However, since it already exists in nature, patenting it is not possible. In this case, the community responsible for its discovery shares traditional knowledge. The underlying objective is to prevent the monopolization of natural resources and ensure their equitable use by the community.
Further discussion revealed that the patent act does not define traditional knowledge. However, the court has relied on international bodies like the World Intellectual Property Organization to define traditional knowledge as knowledge passed down from generation to generation and based on experiences.[10] The intention is to uphold community ownership and prevent any individual from claiming sole proprietorship. The intention is to prevent any individual from claiming sole proprietorship.
Similarly, India has traditionally used the Panchagavya and leaves in this lamp for centuries because of their herbal qualities. Therefore, granting a patent to a company for such a product would not align with the legislative purpose. The product in question does not align with the legislative purpose. The court also deliberated on whether the claimed invention merely combines established characteristics, such as the use of cow dung, a natural fuel source. Given the functioning of the lamp in this instance, it resembles the use of cow dung for fuel, demonstrating the claimed invention’s lack of novelty.
Court’s Reasoning
The court determined that the claimed invention does not possess novelty, making it ineligible for a patent. Through this case, the court has addressed the need for more explicit criteria when making classifications of traditional knowledge under Section 3(p). At present, the Indian Patent Act, 1970, does not clearly define traditional knowledge, with clarity, creating ambiguities. In order to bridge the gap, the Court resorted to definition from WIPO and UNESCO though it has its own challenges as raises unresolved questions like how old must the knowledge be to qualify as TK, or how widely known must be a practice be before it becomes traditional? Without clear benchmarks, the interpretation of TK remains uncertain making the application under Section 3(p) complex and misuse by corporate.
To simplify the patent examination process, the Patent Manual provides basic instructions, but these remain inadequate for TK related cases. The Guidelines require the Traditional Knowledge and Digital Library (TKDL) to verify whether the knowledge claimed in an application already exists, yet they lacked detailed procedural framework specifying how such verification should be conducted. Moreover, the Guidelines for Processing Patent Application address TK particularly in the context of plants and medicines which is the subject matter in the case. The Court therefore recommended that the examiner should be equipped with clear standardised criteria for assessing patent applications involving medicine plants or remedies ensuring that the applications are refused under Section 3(p) where they involve pre-existing TK. These observations form an essential part of the Court reasoning aiming both to protect medical traditional knowledge from misappropriation and to enhance certainty in patent adjudication.
The Parliament intends to prevent foreign players from misusing India’s traditional knowledge, particularly in relation to indigenous and Ayurvedic therapies, by outlawing its unauthorized use for patent purposes. Failure to do so would lead to a phenomenon known as biopiracy.
The TRIPS Agreement, specifically Article 27.3b, lays down this necessary safeguard to protect traditional knowledge and biodiversity. Its objective is to preserve traditional knowledge, ensure fairbenefit sharing, and promote greater involvement in decision-making processes. The goal is to stop any part of the world from patenting traditional knowledge.
Only substantial research on traditional knowledge that demonstrate novel, non-obvious that goes beyond traditional use could make the crucial leap of overcoming patentability exclusion under Section 3(p) of the Patent Act, 1970 thus enabling the legal protection of Indian traditional knowledge and ensuing healthcare. [AM1] Incorporating traditional knowledge into the national healthcare system will relieve the pressure associated with conventional medicine.
“It is also pertinent to note that Section 6 of the Biological Diversity Act, 2002 requires prior approval from the National Biodiversity Authority for applications involving biological resources or associated TK. In the Panchagavya case, this statutory safeguard operates alongside Section 3(p), reinforcing the non-patentability of TK without proper authorization. This dual framework reflects India’s compliance with CBD and Nagoya Protocol obligations, while simultaneously preventing biopiracy through domestic mechanisms.”
Conclusion
In the context of safeguarding traditional knowledge, it’s essential to conduct research on the scope of traditional knowledge and devise more effective methods for its protection. Traditional knowledge symbolizes the rights and endeavours of indigenous communities to safeguard their resources. We could design the legislation to establish sui generis laws, thereby strengthening the safeguarding of traditional knowledge and biodiversity. This will be a beneficial step for the future generation, as they realize the importance of preserving their cherished knowledge.
[1] Traditional Knowledge and Intellectual Property https://www.wipo.int/edocs/pubdocs/en/wipo_pub_tk_1.pdf.
[2] S.K. Tripathi, ‘Traditional Knowledge: Its significance and Implications’, Indian Journal of Traditional Knowledge Vol 2(2) April 2003, pp.99-106.
[3] Protection of Traditional Knowledge under Intellectual Property Rights Regime, E-JAIRIPA, Vol 1 (01), Dec 2020, pp. 149-164.
[4] World Intellectual Property Organization, Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC), https://www.wipo.int/tk/en/ (last visited Aug. 12, 2025).
[5] The Patents Act, No. 39 of 1970, INDIA CODE, § 25 (pre-grant opposition)
[6] The Patents Act, No. 39 of 1970, INDIA CODE, § 64 (revocation)
[7] The Patents Act, No. 39 of 1970, INDIA CODE,§ 2(1)(j) (defining “invention” as new, involving an inventive step, and capable of industrial application); see also Lakshmikumaran & Sridharan, A Rising Need for a Modern Understanding of Traditional Knowledge under Indian Patent Law, https://www.lakshmisri.com/insights/articles/a-rising-need-for-a-modern-understanding-of-traditional-knowledge-under-indian-patent-law/
[8] The Indian Patent Act, No. 39 of 1970, INDIA CODE § 3 (p)
[9] Indian Patent Act, 1970, S.3(p).
[10] Traditional Knowledge, WIPO, https://www.wipo.int/tk/en/
Authored By: Mr. Prakhar Dubey, NALSAR, University of Law
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