The World Health Organization (WHO) defines traditional medicine as “the sum total of the knowledge, skills and practices based on the theories, beliefs and experiences indigenous to different cultures, whether explicable or not, used in the maintenance of health as well as in the prevention, diagnosis, improvement or treatment of physical and mental illnesses.” It serves the health needs of a vast majority of people in developing countries and often constitutes the only affordable form of treatment available to economically disadvantaged and remote communities. Traditional medical knowledge is frequently associated with genetic resources. For instance, calanolides — compounds derived from the latex of Calophyllum trees found in the Malaysian rainforest — have shown potential in the treatment of HIV and certain forms of cancer.
Because genetic resources exist in nature and are not creations of the human mind, they cannot be directly protected as intellectual property. However, they are subject to access and benefit-sharing regulations. These regulatory mechanisms do not invariably ensure equitable returns. In the case of captopril, a drug used to treat hypertension and heart failure, no benefits flowed back to the indigenous Brazilian tribe that first utilised pit viper venom as an arrowhead poison, despite the medicinal breakthrough that followed.
International forums and traditional medical knowledge
The WHO promotes the integration of traditional medical knowledge into healthcare systems. The World Intellectual Property Organization (WIPO), on the other hand, is concerned with its protection within the framework of intellectual property law. In this regard, reference must be made to patents granted in the past concerning traditional Indian remedies, including the use of turmeric for wound healing, the antifungal properties of neem, and a diabetes treatment derived from jamun extract — all of which were subsequently revoked after challenges based on prior art.
WIPO has also undertaken reforms to the Patent Cooperation Treaty (PCT) Minimum Documentation and the International Patent Classification system to enhance prior art searches and reduce the erroneous grant of patents relating to traditional knowledge. Furthermore, the work of the World Trade Organization (WTO) on access to medicines is guided by the Doha Declaration on the TRIPS Agreement and Public Health, which seeks to balance intellectual property protection with public health imperatives.
Ayurveda – the science of life
Ayurveda is a deep-rooted Indian healing system that primarily aims to promote well-being rather than merely combat disease. It is neither legend nor folklore but is grounded in the tridosha principle, which posits that each individual is born with a primary constitutional type that determines susceptibility to disease and response to environmental conditions, diet and medication. Ayurveda originated in India approximately 5,000 years ago and is referenced as a subsidiary branch of the Atharvaveda. It represents a holistic medical tradition that emphasises harmony between body, mind and environment.
Patents and Ayurveda
Patents constitute the most significant form of intellectual property protection for medicines. However, in order to obtain a patent, an invention must satisfy the requirements of novelty, inventive step and industrial applicability. Holders of traditional medical knowledge often encounter substantial obstacles in meeting these criteria, particularly the requirement of novelty. It may be difficult to demonstrate an inventive step when herbal remedies consist largely of natural products in their raw or minimally processed form. Moreover, distinguishing a claimed invention from existing prior art presents additional challenges.
Nevertheless, exceptions do exist. Patents have been granted for innovations derived from maca, a traditional Peruvian plant cultivated by the Incas, as well as for developments relating to kava, a medicinal plant first domesticated in Vanuatu. In China, patent law extends protection to new traditional medicine-based products and novel uses of traditional remedies, including herbal formulations.
In the Indian context, it must be acknowledged that certain provisions of patent law operate restrictively with respect to Ayurvedic medicines. Reliance solely on defensive mechanisms such as the Traditional Knowledge Digital Library (TKDL) is insufficient. There is a pressing need to explore the possibility of securing patents for modified or value-added formulations derived from Ayurvedic knowledge, provided that such products are supported by evidence-based claims concerning quality, safety and efficacy. Processes involving the extraction of active ingredients from medicinal plants, as well as innovative product development and novel therapeutic applications, are capable of constituting patentable subject matter under national law.
Trademarks and Ayurveda
Trademarks protect distinctive signs — such as words, symbols, phrases or designs — that identify the commercial source of a product. Registration enables companies to safeguard brand identity, prevent counterfeiting and foster consumer trust. Within the context of traditional medical knowledge, trademarks have been used to market products such as Truong Son Balsam, a medicinal balm originating from Viet Nam.
Within the Ayurvedic sector, established brands such as Patanjali, Dabur and Kottakkal Arya Vaidya Sala have successfully utilised trademark protection to consolidate reputation and market presence. However, trademarks do not prevent third parties from using traditional knowledge itself, provided that they do not employ the protected mark.
Geographical Indications and Ayurveda
Geographical Indications (GIs) provide a legal mechanism for protecting products that possess qualities, reputation or characteristics attributable to a specific geographical origin. As with trademarks, GIs protect products derived from traditional knowledge rather than the knowledge per se. They also do not prevent the use of similar knowledge outside the designated geographical area.
Examples of medicinal plants with GI recognition include Alleppey Green Cardamom and Nilgiri Tea. Saffron from Jammu and Kashmir is similarly renowned for its medicinal attributes, including its use in alleviating migraine symptoms. GIs can contribute to sustainable agricultural practices and safeguard regions that are integral to Ayurvedic supply chains.
However, a significant impediment in the Indian context is that Ayurvedic treatments and massages are classified as services, whereas GI protection in India is confined to goods. Several jurisdictions, including Azerbaijan, Bahrain, Croatia and Singapore, extend GI protection to services as well as goods. India could consider adopting a similar legislative framework.
Trade secrets and Ayurveda
A trade secret comprises confidential information that is not generally known or readily ascertainable and that confers economic advantage upon its holder. India does not have dedicated legislation governing trade secrets; protection is primarily derived from contract law. Section 27 of the Indian Contract Act provides remedies against unauthorised disclosure of confidential information obtained during employment or contractual engagement.
The National Innovation Bill, 2008, represented an attempt to create a statutory framework for protecting confidential information, although it was not ultimately enacted. Within the Ayurvedic industry, trade secrecy remains prevalent despite limited statutory protection. Two principal areas of secrecy may be identified: the sourcing and composition of raw materials, and the proprietary processes employed in the manufacture of formulations.
Sui Generis systems and Ayurveda
Certain countries have enacted sui generis legislation to protect traditional medical knowledge. Thailand’s Act on Protection and Promotion of Traditional Thai Medicinal Intelligence safeguards traditional medicinal formulae and related texts. Similarly, China’s Law on Traditional Chinese Medicine, 2016, provides comprehensive protection for traditional medical practices, including treatments and therapeutic procedures.
India presently lacks comparable specialised legislation. The development of a dedicated legal framework may therefore be necessary to promote and protect traditional medical knowledge generally, and Ayurveda in particular.
Conclusion
Ayurveda, India’s ancient system of medicine, has witnessed a marked resurgence in global popularity as part of the contemporary wellness movement. Indian intellectual property laws, particularly the Trade Marks Act 1999, provide meaningful protection for Ayurvedic products; nevertheless, considerable scope for reform remains.
Future directions may include expanding GI registrations, strengthening sui generis protection, and leveraging digital technologies for intellectual property enforcement. Blockchain-based systems, for instance, could enhance traceability within Ayurvedic supply chains, ensuring transparency and authenticity at every stage of production. As Ayurveda continues its global expansion, the strategic and effective use of intellectual property rights will be essential in enhancing its commercial value while safeguarding its civilisational legacy.
The author serves as Principal Secretary to the Government of Kerala