View of AYURVEDIC MEDICINES - PATENTABILITY IN INTELLECTUAL PROPERTY RIGHTS

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ACCENT JOURNAL OF ECONOMICS ECOLOGY & ENGINEERING

Peer Reviewed and Refereed Journal, ISSN NO. 2456-1037

Available Online: www.ajeee.co.in/index.php/AJEEE

Vol. 06, Special Issue 01, (IC-RCOVID19) April 2021 IMPACT FACTOR: 7.98 (INTERNATIONAL JOURNAL) 143 AYURVEDIC MEDICINES - PATENTABILITY IN INTELLECTUAL PROPERTY RIGHTS

Rupali Bajaj

Student, LLM (IPR), Renaissance University Dr. Swati Patil

Assistant Professor, Renaissance University

Abstract:- 'Ayur' means 'Life', Veda means 'Science or Knowledge'. 'Ayurveda' means 'knowledge of Life' or 'Wisdom of Life'. Ayurveda is natural system of medicine, originated in India more than 3000 years ago. It's derived from Sanskrit. It's recognised officially by WHO, 1976. It's invented by DHANVANTRI, the physician to gods in Hindu Mythology, who received it from BRAHMA. Its natural substances, herbs, medicines helps us to lead healthy, happy, stress-free life. Its diet involves eating or restricting certain foods based on your Dosha or Body Types, which is claimed to boost weight loss, support mindfulness and many other benefits. It's healing is facilitated with the amalgamation of 5 elements of nature. Whereas in homeopathy, its objective is to bring about a change in human body to make it respond in q better way to get the system in right place. And whereas in Allopathy, the concept of treating the disease with help of drugs.

Keywords: Ayurvedic Medicines, Traditional Knowledge, Patentability, TKDL, Patent, Amendment, Health Improvement.

1. INTRODUCTION

The Globe has very strong opposite opinion regarding the Patentability of Ayurvedic Medicines. Under the provisions of IPR, WIPO, PATENTS, has attracted many individuals to explore possibilities of health benefits with Ayurvedic Traditional Knowledge. Although rules are not favouring to grant a patent on prior published knowledge and the grant of Patent on Knowledge of Ayurvedic Medicinal products which have been successfully checked with (TKDL) Traditional Knowledge Digital Library. Under the current provisions of Patent law, they are obstructive in nature for getting patent on Ayurvedic Medicinal products. There is an urgent need to amend the Laws of Patent. So why the stakeholders of Ayurveda should be deprived of it. Now the invention would drive acceptance of Ayurveda as global system of medicines. The promotion of Traditional Knowledge is now widely recognized and it plays a very essential role in supporting the TK based community ' livelihood and cultures.

The Traditional Health Care problems, complexities linked to IPR in Traditional Knowledge and community knowledge are posing a challenge to sustainable development, Intellectual and cultural vitality.

Thus, all the stakeholders of Ayurveda in general and scholars of Ayurveda ( the therapeutics and pharmaceutics both) must be acquainted with the basics of IPR, Patent, and it's possible proposition in progress of traditional knowledge of Ayurveda with innovative approach.

2. AYURVEDA AND IT'S SIGNIFICANCE

Ayurveda, which literally means “The Science of Life,” is the healing science from India. It has been practiced for over 5,000 years by millions of individuals to assist the body in journeying back to optimal health. Ayurveda views health and disease as the end result of how we interact with the world, in terms of our beliefs, perceptions, thoughts, and feelings, which then ultimately determine our actions. Actions in harmony with our inner nature create health, while those dis-harmonious with our inner nature create disease. Health comes when we live in harmony with our true nature as spirit.

Ayurveda allows us to get a glimpse of our individual true nature and to find the best ways to live a life of balance. It provides holistic understanding and healing to people on all levels: physically, emotionally, and spiritually.

Ayurveda uses a multitude of healing modalities including herbs, diet, colors, aromas, sound, lifestyle recommendations, panchakarma, meditation, and yoga. More and more people are discovering that these ancient principles are easily applicable to modern life and that they have the power to create health and contentment.

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ACCENT JOURNAL OF ECONOMICS ECOLOGY & ENGINEERING

Vol. 06, Special Issue 01, (IC-RCOVID19) April 2021 IMPACT FACTOR: 7.98 (INTERNATIONAL JOURNAL) 144 2.1 Acceptance of Ayurvedic Treatment in AUSTRALIA

Ayurveda has its existence in Australia since 1988. Australia is giving it a due recognition.

This is only country where Ayurvedia is recognized as Bonafide System of Medicine.

Previously recognized as a system of natural medicine (naturopathy), now it is considered as Complimentary Health Medicine System. Most of Ayurvedic Practitioners in Australia are from overseas countries as India, srilanka and Nepal.

Recently there is remarkable increase in Ayurvedic Treatment Enquiries especially especially Ayurvedic Panchkarma, Ayurvedic Lifestyle and diet. Ayurvedic rejuvenation therapies such as shirodhara, abhyanga, and kati vastu are now very much popular in Australia. Melbourne has the maximum number of Ayurveda Practitioners and considered as Ayurvedic Hub in Australia.

Various Ayurvedic cooking classes, workshops, and seminars happen each year where Ayurvedic Lifestyle, yoga, and Ayurvedic Medicines are promoted.

I hope in near future, Ayurveda will get its recognition in Medicine.

2.2 Acceptance of Ayurvedic Treatment in CANADA

Ayurveda is duly recognised in Canada. There is proper training programs organised for the awareness of Ayurvedic Treatment. When the early Yogi’s left India to travel around the world, some of them landed Canada. Among them was Swami Vishnu Devananda, a disciple of Swami Sivananda. With a directive from his teach to spread the teachings of Yoga to the West, Swami Vishnu as he was known, did just that. While his teachings has since traveled around the world, the headquarters of his organization is in Val Morin, Quebec.

Yoga and Ayurveda are part and parcel of one another. They can no more be separated then the two sides of coin. Where yoga goes ayurveda is not far behind. The seeds of Yoga were planted in the early part of the 20th century. They began to grow strong in 1960’s and 70’s. Today, they are growing like wildflowers. Yoga studios are full of students in every major city, in the suburbs and even in the most rural parts of Canada. And where you grows, Ayurveda follows. This is because Ayurveda is the healing side of Yoga. Where yoga is a practice to bring peace to the mind, ayurveda is a practice to bring health and longevity to the body. Together, they make a complete path of body-mind wellness.

Classical yoga centers, like the Sivananda Yoga Camp are fertile ground for sharing the ancient knowlege of Ayurveda. Swami Vishnu brought many doctors of Ayurveda over from India to share the knowledge of Ayurveda in the 1980’s. Swami Mahadevananda, the past director of the center, brought many ayurveda to share their knowledge inthe 1990’s. It was in 2003 that he asked me to join him at the Yoga Camp to begin giving lectures on Ayurveda and develop courses in Ayurvedic Yoga Therapy for Yoga Teachers to learn a classical and systematic approach to using Yoga Postures (asana) and breathing practices (pranayama) that would support the healing process. Over the past 10 year, the Camp has seen a tremendous growth in Ayurveda that now supports its Ayurvedic Clinic and Spa and additional classes in Ayurvedic Nutrition. Dr. Sonal Bhatt, an Ayurvedic Physician who studied in Jamnagar, India and now conducts a very busy Ayurvedic Clinic in Toronto is an example of the growth that Ayurveda is experiencing in Canada. The California College of Ayurveda has also seen a growth in students who come from Canada to study. Students have arrived from all parts of Canada including British Columbia, Ontario, Quebec, New Brunswick and Alberta. The college now even conducts its Ayurvedic Yoga Therapy program both in Quebec at the Yoga Camp and on Nanaimo Island in Vancouver.

Not only are students from Canada studying at the California College of Ayurveda but schools are opening up within Canada as well. Although in their early stages, we see the Canadian College of Ayurveda in Toronto and a collective of Ayurvedic and Medical physicians called the Canadian Ayurvedic Medical Alliance.

The future of Ayurveda in Canada is very strong. Canada is being populated by Clinical Ayurvedic Specialist from the California College of Ayurveda and Indian Ayurvedic Physicians. Together, they are working to bring harmony and health into every community.

Come and join the most successful training program for Ayurvedic practitioners in Canada.

The California College of Ayurveda has trained more successful practitioners than any other school in the West! While the California College of Ayurveda has its main campus up in

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ACCENT JOURNAL OF ECONOMICS ECOLOGY & ENGINEERING

Vol. 06, Special Issue 01, (IC-RCOVID19) April 2021 IMPACT FACTOR: 7.98 (INTERNATIONAL JOURNAL) 145 California, you can join a committed group of students and faculty and study Ayurvedic medicine in either our distance learning or live internet program. Many of our students work full or part time while planning their future career in ayurveda. Other students are caring for their families and planning their career for after their kids leave the house.

Whatever your situation is, you’ll find support at the California College of Ayurveda and you explore the ancient truths of health and healing, of harmony and love.

2.3 Research Objective

1. To check the worldwide Patentability right with reference to Ayurveda 2. To study the Amendment in Patent Law for Ayurveda.

3. CHALLENGES FACED BY AYURVEDA TREATMENT 3.1 Status of Ayurveda in USA

There is no significant regulation of AYURVEDA practices or education in America. None of 50 states require license to practice Ayurvedic health care. Although the progress is slow.

In USA, Ayurveda is a form of holistic medicine. There are few state approved Ayurvedic schoolsbin US, but there is no national training or Certificate programs for these who want to practice this alternative therapy. The FDA does not review or approve Ayurvedic Products.

In fact, certain items have been banned in US since 2007.

The FDA has warned that 1 in 5 Ayurvedic Medicines have toxic metals, like lead, mercury and arsenic. These heavy metals can cause life - threatening illness, especially in children. As take in Ayurvedic medication in excess is harmful to health. Otherwise it serves great purpose for health improvement.

3.2 SC examine plea against Surgery by Ayurvedic Practitioners

Sc decided to examine a plea by Indian Medical Association (IMA) order authorisev post graduate practitioners in specified streams of Ayurveda to be trained to perform surgical procedures. IMA agreed that CCIM did not have powers to include surgery in Ayurveda syllabus.

The notification by CCIM has listed 39 general surgery procedures and around 19 procedures involving the eye, ear, nose, throat by amending the Indian Medicine Control Council Regulation 2016. According to November 20,2020 gazatte notification, the procedures listed include removal of metallic and non metallic foreign bodies from non vital organs, traumatic wound management, foreign body, removal from stomach, squint surgery, cataract surgery and functional endoscopic sinus surgery.

Advocate VK Biju, for Ayurvedic Medical Association of India, said it was universally accepted that Ashtang Ayurveda has dealt with surgery for centuries.

4. CHALLENGES FOR PATENT OF AYURVEDIC SYSTEM OF MEDICINES

Under the Agreement on Trade Related Intellectual Property Rights (TRIPS Agreement) to which India is committed, every country is required to accord to the nationals of other members, treatment which is no less favourable than it accords to its own nationals with regard to the protection of intellectual property.

Government has taken measures to safeguard the national interest in respect of grant of patents based on indigenous medicinal/herbal products/plants, besides exclusions provided for in the Patents Act 1970. These exclusions and measures are outlined below:

Patents cannot be granted to plants, including medicinal/herbal plants, or any part thereof including seeds, varieties and species and essentially biological processes for production or propagation of plants as per section 3 (j) of the Patents Act, 1970.

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 patentable under Section 3(p) of the Patents Act, 1970.

Government has established the Traditional Knowledge Digital Library (TKDL) with the objective of preventing misappropriation of Indian traditional knowledge on Ayurveda, Unani and Siddha medicinal systems. The TKDL has been prepared in five languages, namely English, French, German, Japanese and Spanish in patent compatible format. It makes available Indian traditional knowledge which are already in public domain, to the

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ACCENT JOURNAL OF ECONOMICS ECOLOGY & ENGINEERING

Vol. 06, Special Issue 01, (IC-RCOVID19) April 2021 IMPACT FACTOR: 7.98 (INTERNATIONAL JOURNAL) 146 patent examiners so that such patent applications which claim Indian traditional knowledge are rejected at the examination stage itself.

The TKDL has been made available to select Patent Offices in the world for conducting prior art search for Indian traditional knowledge and not to grant patent if the subject-matter under the patent application pertains to the Indian traditional knowledge.

Council of Scientific and Industrial Research files opposition in various patent offices across the world against any patent applications based on Indian Traditional Knowledge. Hence, it's obstructive in nature for getting patent on Ayurvedic Medicines. Thus, there is need to amend the Laws of Patent. New Inventions would derive acceptance of Ayurveda as global system of medicine.

5. CONCLUSION

Authors conclude discussions on this title by noting that varieties of medicinal plant products developed using modern plant breeding techniques cannot be patented as such as per the Indian patent law. But the process of developing such varieties can be protected through patents. Similarly, process of extraction of active ingredients, product developments by using medicinal plants of Ayurveda and usages of these with new purposes are patentable subject matter in the national law if they meet the standards of novelty, inventive steps and industrial applicability.

Finally, authors humbly submit before every stakeholder of Ayurveda that we are now in the process of learning the new world order of IPR and have to tight our nuts and bolts to develop efficient safeguarding strategies by developing capacity building of the people through networking with various groups who own the intellectual resource in their interest in particular and nation as a whole. This should lead to strengthened linkages between the needs and interests of world communities, and the core public policy principles of the intellectual property system. India should come in international market with blend of classical and patent Ayurvedic medicines.

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