Legal Gaps in Patenting Practices paving the way for Exploitation of Indigenous Medicinal Knowledge: Lessons from the Kani Tribe and the Commercialization of the Jeevani Herb

Abstract

Despite the discovery of the Jeevani drug in 1993 by the Jawaharlal Nehru Tropical Botanical Garden and Research Institute (JNTBGRI) using the traditional knowledge shared by the Kani tribe of Kerala, remains inadequately protected due to the gaps in India’s IP system. The exclusive rights to the Trichopus zeylanicus, scientifically referred to as the "Arogyapacha plant" (the source of Jeevani), are denied under the Indian Patent Act, 1970, which forbids product patents for plants. Despite the legality of process patents, Jeevani’s expired in 2008 and even with decades passing, there existed no effective IP protection internationally. The benefit-sharing agreement for Jeevani, though internationally recognised by the UN for its novelty, had shortcomings. The patent application failed to include tribal informants as co-inventors, indicating the lack of integration of traditional knowledge holders into the formal IP frameworks. Furthermore, the novelty needed for IP protection was compromised by protracted delays in granting patents which allowed the unique information to spread into the public domain. As a result of which, the indigenous communities lost the benefits they could have reaped if the legal framework safeguarded their knowledge in a timely and secure manner. The impacts of inadequate IP protection also extended beyond border as companies like NutriScience Innovations trademarked Jeevani in the U.S. thereby showcasing its market potential. If India had obtained full IP protection under the Patent Cooperation Treaty by WIPO, such trademarks may have brought in more money for the Kani tribe. This paper examines gaps in India's IP framework regarding traditional knowledge, role of treaties like the Nagoya Protocol in protecting indigenous rights and the challenges in protecting indigenous rights. It proposes practical solutions based on lessons from the Jeevani case-study to address loopholes in India’s IP laws, ensure equitable benefit-sharing, and prevent future exploitation of indigenous discoveries.