Bridging Biodiversity and Intellectual Property: The Intersection of Traditional Knowledge and Innovation

India is home to one of the world’s richest repositories of biodiversity and traditional knowledge – from the healing properties of turmeric and neem documented in ancient Ayurvedic texts, to the farming wisdom passed down through generations in tribal communities. Yet this wealth has long been vulnerable to a troubling phenomenon: external actors, often multinational corporations, using this knowledge to obtain intellectual property rights without the consent of the communities that preserved it. The intersection of biodiversity, traditional knowledge (TK), and intellectual property rights (IPRs) sits at the heart of some of the most important legal debates of our time – raising fundamental questions about justice, sovereignty, and who gets to own knowledge.

What is traditional knowledge and why does it matter? 🔗

Traditional knowledge refers to the body of knowledge, practices, and innovations developed by indigenous and local communities over generations through direct interaction with the natural environment. It encompasses medicinal formulations, agricultural practices, ecological management techniques, and cultural expressions. In India, this includes systems like Ayurveda, Siddha, Unani, and Yoga – each representing centuries of accumulated wisdom about biology, health, and the natural world.

This knowledge is not merely cultural heritage. It has concrete economic and scientific value. Pharmaceutical companies, agribusinesses, and research institutions actively mine TK to develop commercially viable products. The challenge is that, under conventional IPR frameworks, this knowledge often enters the public domain as “prior art,” meaning it cannot be patented – but the derived product or process can be, giving corporations proprietary rights over inventions that are effectively rooted in indigenous wisdom. This gap is precisely where biopiracy occurs.

Understanding biopiracy 🔗

The term “biopiracy” was coined in the early 1990s by activist Pat Mooney to describe the unauthorized appropriation of genetic resources and traditional knowledge through the intellectual property system, without consent or fair compensation to the originating communities. As legal scholars note, it is not merely an economic harm – it strips indigenous communities of their cultural sovereignty and threatens the very identity embedded in their ancestral knowledge systems.

It is important to distinguish biopiracy from bioprospecting. Bioprospecting refers to the legitimate exploration of biological resources for commercially valuable compounds, often leading to genuine scientific innovation. Biopiracy, however, occurs when this exploration bypasses legal and ethical obligations – extracting knowledge and resources without prior informed consent (PIC) and without establishing benefit-sharing agreements with the source communities.

Landmark biopiracy cases involving India 🔗

India has been at the centre of several high-profile biopiracy disputes, each of which has shaped both domestic law and international policy.

The turmeric case (1995): Two Indian-origin researchers at the University of Mississippi Medical Centre were granted a US patent for using turmeric to heal wounds – a practice well-documented in Indian households and ancient texts for centuries. India’s Council of Scientific and Industrial Research (CSIR) challenged the patent at the US Patent and Trademark Office (USPTO), successfully having it revoked in 1997 by presenting ancient Sanskrit manuscripts and a 1953 scientific paper as prior art evidence. This was a landmark moment that triggered India’s proactive approach to TK protection.

The neem case (1994-2000): The W.R. Grace company obtained a European Patent Office (EPO) patent for a neem-based fungicide, despite the fact that the fungicidal properties of neem (Azadirachta indica) were deeply embedded in Indian traditional practice. After a protracted legal battle in which India provided documentary evidence from scriptures and manuscripts, the EPO revoked the patent in 2000, acknowledging this was pre-existing knowledge.

The Basmati rice case (1997): Texas-based RiceTec Inc. applied for a US patent on Basmati rice strains and cultivation methods. India objected on the grounds that Basmati was an indigenous product with deep agricultural and geographical roots, amounting to biopiracy of traditional farming knowledge. Most of the contested claims were eventually withdrawn or denied, affirming India’s position.

The international framework: CBD, TRIPS, and the Nagoya Protocol 🔗

The global legal architecture around biodiversity and TK has evolved significantly over the past three decades, driven in large part by the growing recognition that the existing IPR system – particularly patent law – was inadequate to protect the interests of indigenous communities.

Convention on Biological Diversity (CBD) 🔗

The Convention on Biological Diversity (CBD), adopted in 1992, is the foundational international treaty in this space. Ratified by 196 nations including India, it has three core objectives: the conservation of biological diversity, the sustainable use of its components, and the fair and equitable sharing of benefits arising from the use of genetic resources. The CBD specifically mandates that the knowledge, innovations, and practices of indigenous and local communities be respected, preserved, and applied with their approval, and that benefits be shared equitably with them.

TRIPS Agreement and its tension with TK protection 🔗

The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), administered by the World Trade Organization, creates a different kind of tension. TRIPS requires member countries to provide patent protection for inventions that are novel, involve an inventive step, and are capable of industrial application. The problem is that TRIPS does not explicitly account for traditional knowledge as prior art – making it possible for biopiracy patents to slip through. There is an ongoing debate, especially among developing nations, about whether TRIPS should be amended to require patent applicants to disclose the origin of any biological resources or TK used in their invention.

The Nagoya Protocol (2010) 🔗

The Nagoya Protocol on Access and Benefit-Sharing, adopted in 2010 and entered into force in 2014, is the most actionable international mechanism specifically targeting biopiracy. It supplements the CBD by establishing clear obligations for obtaining prior informed consent from TK-holding communities before accessing genetic resources, and for ensuring fair and equitable benefit-sharing. The Protocol created enforceable mechanisms for the first time at the international level, making it a significant step forward in translating the CBD’s principles into practice.

WIPO’s role and the 2024 GRATK Treaty 🔗

The World Intellectual Property Organization (WIPO) has been a key forum for TK-related IP discussions. Since 2001, WIPO’s Intergovernmental Committee (IGC) on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore has worked to address gaps in international law. In May 2024, this work culminated in the adoption of the landmark WIPO Treaty on Intellectual Property, Genetic Resources and Associated Traditional Knowledge (GRATK) – signed by 30 countries on the day of its conclusion. Notably, Article 6 of the treaty recommends establishing information systems and databases for genetic resources and associated TK, directly recognising the model pioneered by India’s TKDL.

India’s domestic legal response 🔗

India has built a layered legislative framework to address biopiracy and protect TK, combining biodiversity law, patent law, plant variety protection, and geographical indications.

The Biological Diversity Act, 2002 🔗

The Biological Diversity Act, 2002 is the cornerstone of India’s domestic framework. It establishes a three-tier regulatory structure – the National Biodiversity Authority (NBA) at the national level, State Biodiversity Boards (SBBs) at the state level, and Biodiversity Management Committees (BMCs) at the local level. Foreign nationals and institutions must obtain prior approval from the NBA before accessing India’s biological resources. Indian scientists and companies must also notify the relevant authority before transferring research outcomes involving biological resources to foreign institutions. The Act creates a system of Biodiversity Funds to support conservation and safeguard indigenous rights.

The Patents Act, 1970 (amended 2005) 🔗

The 2005 amendment to the Patents Act brought India’s patent law in line with TRIPS obligations, but also incorporated critical safeguards against biopiracy. Section 3(p) of the Patents Act expressly bars patent protection for any invention that is essentially based on traditional knowledge – whether in aggregated or duplicated form – unless accompanied by significant scientific advancement. Patent applicants are also required to disclose the source and geographical origin of any biological material used in their invention, creating a layer of transparency in the system.

Other supporting legislation 🔗

The Protection of Plant Varieties and Farmers’ Rights Act, 2001 recognises farmers as breeders and protects their right to save, use, sow, and exchange seeds, acknowledging their contributions to agrobiodiversity. The Geographical Indications of Goods (Registration and Protection) Act, 1999 protects products like Darjeeling tea and Basmati rice by linking them to their geographical and cultural origin – making it harder for foreign entities to appropriate these identities. The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 further vests tribal communities with legal titles to forest land and the biodiversity it sustains, providing a layer of protection for forest-based TK.

The Traditional Knowledge Digital Library (TKDL): India’s proactive shield 🔗

Perhaps India’s most innovative contribution to the global fight against biopiracy is the Traditional Knowledge Digital Library (TKDL), launched in 2001 as a joint initiative of the Council of Scientific and Industrial Research (CSIR) and the Ministry of AYUSH. The turmeric case demonstrated that the real problem was not just biopiracy itself, but the inability of international patent examiners to identify Indian TK as prior art – because the knowledge existed in Sanskrit, Arabic, Urdu, Tamil, and other languages inaccessible to most patent offices.

The TKDL addressed this by digitising and translating over 34 million pages of traditional medicinal knowledge from Ayurveda, Siddha, Unani, and Yoga texts into five international languages – English, French, German, Spanish, and Japanese – using a specially developed Traditional Knowledge Resource Classification (TKRC) system compatible with international patent classification standards. As of its completion, the TKDL had transcribed formulations and practices from 148 books, making this knowledge searchable by patent examiners worldwide.

Today, 17 major patent offices worldwide – including the EPO, USPTO, Japan Patent Office, and UK Patent Office – have access to the TKDL under Non-Disclosure Agreements. Between 2009 and 2011 alone, the EPO identified 36 patents that improperly used Indian TK. The TKDL’s approach is fundamentally preventive: instead of challenging a bad patent after it is granted (which takes years and millions of rupees), it enables patent examiners to identify and reject such applications upfront – reducing the challenge from years to weeks.

In a significant international endorsement, WIPO’s IGC adopted the TKRC as a global standard for TK database classification in 2003, and the 2024 WIPO GRATK Treaty explicitly recognised the TKDL model as a benchmark for similar initiatives globally.

Challenges that remain 🔗

Despite these advances, significant gaps persist. The existing IPR system is fundamentally designed around individual rights and commercial applicability, whereas TK is inherently communal, often orally transmitted, and not always linked to a single identifiable holder. This structural mismatch means that even well-intentioned IPR tools provide only partial protection.

As scholars have noted, benefit-sharing arrangements under the existing framework can be poorly defined, power imbalances between indigenous communities and multinational corporations remain steep, and enforcement mechanisms at the ground level are often weak. The TKDL itself has been critiqued for being inaccessible to the Indian public and the communities whose knowledge it documents – it is available only to foreign patent offices, not to the communities themselves or Indian scientists.

Many legal experts argue that the long-term solution lies in developing a dedicated sui generis system – a bespoke legal framework tailored specifically to the nature of TK, one that incorporates communal ownership, customary law principles, and flexible benefit-sharing mechanisms that current IPR regimes cannot accommodate. India is yet to enact such legislation, though the call for it is growing steadily in academic and policy circles.

The road ahead: biojustice and sustainable innovation 🔗

The concept of biojustice – an idea gaining traction in recent legal scholarship – argues for a fundamental reorientation of how we think about the relationship between biodiversity, TK, and innovation. Rather than treating TK solely as prior art that prevents patents, biojustice advocates for recognising indigenous communities as active innovators whose contributions must be rewarded, not just protected from exploitation.

This means moving beyond defensive mechanisms like the TKDL and towards affirmative frameworks – ones that enable communities to participate in and benefit from the commercialisation of knowledge derived from their heritage. The Nagoya Protocol’s access and benefit-sharing mechanism is a step in this direction, but its implementation remains uneven across jurisdictions. India’s People’s Biodiversity Registers (PBRs), maintained by Biodiversity Management Committees at the local level, are another promising tool – documenting and protecting TK passed down through oral tradition and creating a community-owned record that complements the TKDL’s national-level defensive approach.

The 2024 WIPO GRATK Treaty, the ongoing evolution of the CBD framework, and India’s own legislative journey all point to a global consensus that the status quo – where ancient knowledge fuels modern patents without acknowledgment or compensation – is untenable. The challenge now is to translate that consensus into enforceable, community-centred legal frameworks that genuinely serve the people whose knowledge sustains global biodiversity.

What do you think? Should countries like India push for a complete overhaul of how TRIPS handles traditional knowledge, or is strengthening access and benefit-sharing under the existing framework a more practical path forward? And as digital tools like the TKDL evolve, should the communities whose knowledge populates these databases have direct, open access to them – and if not, who does the protection ultimately serve?

References

1. https://en.wikipedia.org/wiki/Biopiracy
2. https://ksandk.com/intellectual-property/biopiracy-indigenous-rights-india-laws-protection/
3. https://www.iam-media.com/article/biopiracy-in-india-scientific-eruption-or-traditional-disruption
4. https://www.nlunagpur.ac.in/PDF/Publications/5-Current-Issue/5.BIO-PIRACY%20IN%20INDIA%20A%20PRACTICE%20OF%20PATENTING%20TRADITIONAL%20KNOWLEDGE%20FOR%20PROFIT.pdf
5. https://www.csir.res.in/en/documents/tkdl
6. https://pmc.ncbi.nlm.nih.gov/articles/PMC9999701/
7. https://www.iilsindia.com/blogs/biopiracy-and-protection-of-traditional-knowledge-under-intellectual-property-law-need-of-the-hour/
8. https://pmc.ncbi.nlm.nih.gov/articles/PMC8172557/