Planet Money - How to fight a patent pirate

Episode Date: September 1, 2023

Back in the 1990s, Dr. Raghunath Mashelkar was in his office in New Delhi when he came across a puzzling story in the newspaper. Some university scientists in the U.S. had apparently filed a patent for using turmeric to help heal wounds. Mashelkar was shocked, because he knew that using turmeric that way was a well known remedy in traditional Indian medicine. And he knew that patents are for brand new inventions. So, he decided to do something about it – to go to battle against the turmeric patent.But as he would soon discover, turmeric wasn't the only piece of traditional or indigenous knowledge that had been claimed in Western patent offices. The practice even had its own menacing nickname - biopiracy. And what started out as a plan to rescue one Indian remedy from the clutches of the U.S. patent office, eventually turned into a much bigger mission – to build a new kind of digital fortress, strong enough to keep even the most rapacious of bio-pirates at bay.This episode was produced by Willa Rubin with help from James Sneed and Emma Peaslee. It was edited by Molly Messick. It was fact-checked by Sierra Juarez. Our engineers were Josh Newell and James Willetts. Planet Money's executive producer is Alex Goldmark.Help support Planet Money and get bonus episodes by subscribing to Planet Money+ in Apple Podcasts or at plus.npr.org/planetmoney.Learn more about sponsor message choices: podcastchoices.com/adchoicesNPR Privacy Policy

This is Planet Money from NPR. At 81 years old, Dr. Raghunath Mishelkar has racked up dozens of illustrious titles and honorary degrees over his long career as a scientist in India. But the important one for the purposes of this story is more of a gnome de guerre. Do you have any, like, nicknames or honorific titles that are related to this story? Oh, yeah, yeah, I have. I have. Actually, I'm referred to as a Haldigati warrior. People call you the warrior of Haldigati?

Yeah, warrior of Haldigati. Yeah, that's right. This name, Mishalkar explains, is kind of an Indian pun. Haldigati is the name of a famous battle from Indian history. And Haldi is the Hindi word for the spice we know in English as turmeric. So the nickname basically translates to Warrior of the Turmeric Battle. And how did you come to be known as the Warrior of Haldigati? Yes, it is very interesting, Alexi, the way it happened. There is a story.

It's a story that begins back in 1995. Mishelker has a high-level job in the Indian government. He's overseeing dozens of the country's scientific and industrial labs, trying to develop new research and technology that'll benefit the Indian economy. So, one

morning, Mishelker gets into his office in New Delhi, flips open a newspaper, and he stumbles across a kind of puzzling news story. And the headline was that the wound-healing properties of turmeric have been patented in the U.S. The wound-healing properties of turmeric had been patented in the U.S. Now, that may seem confusing if you think of turmeric as just one of the many shakers on your spice rack. But in India, turmeric is a staple of daily life. It's one of the key ingredients in many curries.

It used to be used to dye fabrics. And people think it has healing properties. If they get a cut, they'll sometimes put turmeric on it as a powder or a paste. As you read the article, Meshulkar thought of an incident from a couple years earlier. He'd been sitting on his terrace at home with his mother when a bird crash-landed near them with a broken wing. And I remember my mother ran down, brought powder of turmeric, put a little bit of water, made it into a paste, and applied it to that broken wing.

The bird did not make it. But the point is, this was just something you did. It was a known treatment from Ayurvedic medicine. Ayurveda is the holistic, traditional body of remedies used by millions of people in India and beyond. So the idea that some university scientists in the U.S. had patented this practice as something they had just invented, that the university now owned,

Michelle Garnier knew this was a mistake. I was shocked. And I said, my God, this cannot be right. Because anything that is known, like my mother knew it, my mother's mother knew it, generations of Indians around the world knew it. How can you grant a patent on that? There had to be something he could do about this.

And it just so happened that that evening he was scheduled to give a lecture. Now, Alexei, the interesting thing about me is that I don't think from my head. I think from my heart. Meshulkar thinks from his heart. Yeah. So what happened was I declared at the end of the lecture, this is wrong. This is unfair. This is our traditional knowledge. And you can't just claim rights on it with the U.S. Patent Office. And I said, I'm going to fight it. He was going to fight it. Dr. Raghunath Mishelkar was riding into battle. Hello and welcome to Planet Money.

I'm Alexi Horowitz-Ghazi. And I'm Erika Barris. Dr. Mishelkar didn't know it yet, but he was following his heart into a decades-long, multi-million dollar struggle over some of the fundamental rules of global trade. Because as he would soon discover, all sorts of traditional and indigenous knowledge seemed to be finding its way into Western patent offices. This practice had even earned its own menacing nickname, biopiracy.

Today on the show, what starts out as a plan to rescue one ancient Indian remedy from the clutches of the U.S. Patent Office, eventually turns into a much bigger mission, to build a new kind of digital fortress, strong enough to keep even the most rapacious of biopirates at bay. Okay, so it's 1995, and Dr. Raghunath Mishelkar has just announced his intention to do battle with the U.S. patent on turmeric, which was a little bit controversial, he admits, because he's running the country's scientific and industrial research, overseeing thousands of employees. This turmeric crusade? Really not part of his job description. How did you decide that you were going to be the person to do something about it? That was simple because by 1995, I had established reputation in the country

because I used to talk incessantly about patents. So much that people used to call me not Mashelkar, but Patentkar. Patentkar. That was your other nickname? You were like the patent guy in India. Yeah, patent guy, patent guy. There's a reason Meshalkar was obsessed with patents. India had just joined the new World Trade Organization.

And as part of that, the international system for dealing with intellectual property, including patents, was changing, being standardized. Lots of people were afraid of what globalization would mean for India. But Meshalkar saw it as an opportunity for the country to become a leader in research and innovation. He wanted India's scientists and entrepreneurs to think about their discoveries as valuable intellectual property. Inventions that they could sell in the global marketplace if they would only use the new global patent system. Now, patents are only for new ideas. They're for novel inventions, not well-known ancient remedies. So Meshalkar was certain that that turmeric patent was an error. It was a bug in the very system that he wanted people to trust.

So for him, going after the turmeric patent wasn't just about following his heart to defend India's ancestral knowledge. It was also about shoring up people's belief in the system, showing them that problems could be corrected. Shalkar dove into action, in the way only a high-level bureaucrat does, by delegating. You need to set the pieces in motion. Yeah, yeah. This is what is called leadership. It's like marching of an army. You motivate and your people move the right speed and right direction. So the Haldigati warrior,

he was actually more like a general, mustering the head of his intellectual property department to assemble a legal team and start gathering evidence. They, in turn, enlisted the services of an American law firm out of Minneapolis. And there, the case fell to a legal mercenary by the name of Doug Mueller. And as far as you understood, like, what did the Indian government want? They wanted the patent taken out completely.

The patent, Doug found, had been filed by a couple researchers at the University of Mississippi. And again, it wasn't that they patented turmeric itself. They patented this particular way of using it. With that patent, they had the exclusive right to sell a turmeric wound healing product in the U.S. And Doug says while the idea of getting a patent for sprinkling turmeric in an open wound may sound a little strange to laymen like us, that was nothing abnormal for a seasoned patent lawyer. Though not seasoned with turmeric. You see the patent office do a lot of stuff if you're in the business for a while.

Yeah. There have been famous patents for a method for cutting a sandwich or the method for swinging on a swing set. There's a patent for a method of exercising your cat using a laser pointer. My personal favorite. There's hundreds of thousands of patents issued a year. So there's bound to be some unusual ones. For Doug, the really noteworthy thing about the Turmeric patent was that it shouldn't have been granted in the first place. The whole point of the patent system is to incentivize innovation, to give inventors a

little 20-year monopoly as a reward for coming up with a new idea. But this idea of using turmeric to help with healing wasn't new. It was common knowledge in India. Doug had an idea of how the patent office had gotten it wrong. See, when a patent application comes in, it goes to a patent examiner. And the most fundamental thing they need to do is determine whether the idea takes a truly new step beyond everything that's been done before. So the examiner does a bunch of research. They'll pull up related patents and read trade publications. But, Doug says, they don't have all the time in the world.

If you're coming into it cold, you don't really know, as a patent examiner, you're not permitted to spend 20 hours trying to go through academic journals. You do a good job in the time you have. And so, sometimes in their research, examiners miss something. In the case of the turmeric patent, Doug says they missed something pretty big. The whole existing body of Ayurvedic literature on using turmeric for wound healing. And the problem wasn't that the patent examiner had been negligent. They just didn't have access to the right source materials, several of which were written in Sanskrit. And so, Doug says, they made the wrong call.

Luckily, the patent system has a mechanism for dealing with this problem. You can challenge a patent. It's actually a pretty normal thing. In this case, Doug could just ask the patent office for a re-examination, which is exactly what he did. And to make the best case, Doug could just ask the patent office for a re-examination, which is exactly what he did. And to make the best case, Meshalkar's army dug up more than a dozen texts from the Ayurvedic archives, translating some of them from Sanskrit. And altogether, they showed that using turmeric for healing was a long-standing practice in India. What was the final fate of the patent on use of turmeric as a wound healing agent? Oh, well, I mean, it got killed. All of the original claims were canceled and nothing else

was allowed. So yeah, the whole patent got killed. When news of the turmeric patent's death reached Dr. Mishelker in his office some 7,500 miles away in New Delhi, he says it was an immediate celebration. After the battle was won, there was a lot of rejoicing in India. So suddenly I became a hero, you know? Okay, so you like did what you set out to do. You got this turmeric patent revoked. So like case closed, right? Problem solved?

No, that was not the end of it. That was the beginning. It was the fall of 1997, about two years since Meshulkar first heard about the turmeric patent. And it was just the beginning. Because right after Meshulkar declared victory, a new U.S. patent showed up on basmati rice. Basmati rice, a staple of Indian cuisine and one of the country's major exports. A company in Texas had patented a method for breeding it. Meshulkar decided he had to challenge that patent too, eventually knocking down almost all of its claims. And that is when Meshulkar and his army realized that the turmeric battle may have just been the first volley in a much bigger war.

Because as they did more research, they found more and more appropriated patents, more than 200 of them, not just in the U.S., but also in Europe. So this was a regular practice. It was like kind of like the hydra's head, like you cut the turmeric patent down, but then there were all of these other ones still out there. Yeah, that is correct. What do you do about it? Yeah, what do you do about it? If you cut down these patents one by one, what's to stop an endless army of wrong patents from rising up to take their place?

After the break, Michelle Kerr hatches a plan to slay the hydra of appropriative patents once and for all. Okay, before we get back to Raghunath Meshulkar and his army of bureaucrats, we're going to take a moment to zoom out a bit. Because the problem Meshelker had stumbled into, it was actually a lot bigger than just India. It was happening all over the world. Shilbita Parthasarathy is a professor of public policy at the University of Michigan. She says this practice had been going on for a long time.

The way that a lot of pharmaceutical companies got their knowledge was often from going to other countries and finding out about indigenous knowledge and then coming back and testing that. So there's a famous case of Eli Lilly patenting a treatment for Hodgkin's disease that had come from the periwinkle plant in Madagascar. There was the case of Smokebush, a medicinal plant used by Aboriginal communities in Australia. That was patented by the U.S. government, which was looking for HIV treatments. Somebody had even patented the use of ayahuasca, a psychoactive plant sacred to Indigenous communities in the Amazon. And to be clear, this isn't necessarily all bad. If there's some miraculous cure hiding in a

culture's traditional knowledge, Arguably, we want that knowledge to help as many people as possible. But in a lot of cases, the communities that had put in the thousands of years of R&D to figure out which plants to use for what, they weren't consulted by pharma companies. They didn't agree to share their knowledge, and they weren't going to benefit. In the late 90s, this string of cases caught the attention of anti-globalization activists. Who started framing these patents as a new form of extractive colonialism. And they gave them a new kind of metal name, biopiracy. It becomes a rallying cry for activists around the world. People start experimenting with different

strategies for dealing with appropriative patents. Activist groups bring their own legal challenges. A few governments start working with pharma companies to get compensation for indigenous communities. But Raghunath Mishelkar, the warrior of Haldigati, he wants to solve India's wrong patent problem once and for all. He is done going after individual patents. He wants to stop new ones from popping up in the first place. Like when you go to a doctor and you say, first of all, what are the symptoms and what has caused it? And you try to deal with that cause.

You try to deal with the cause. And the cause, Mishelker says, had become abundantly clear in the turmeric case. India's traditional knowledge was largely invisible to Western patent offices. And the cause, Meshalkar says, had become abundantly clear in the turmeric case. India's traditional knowledge was largely invisible to Western patent offices because patent examiners didn't have access to it. So therefore, the important part was to get this into the system that the patent examiners were using. Right. They needed to make traditional knowledge accessible to the patent examiners. And so, Meshalkar began to muster his forces in a new direction, to come up with a systemic solution to this systemic problem. So, what we did was, we decided that we'll create a sort of traditional knowledge digital library.

A traditional knowledge digital library. A traditional knowledge digital library. The Indian government was going to collect all of the remedies and practices embedded in their ancient texts and use them to create a giant searchable database for patent examiners around the world. One of the key collaborators in figuring out how to build this library was a guy named Tapan K. Mukherjee. I am, actually, I am a botanist. What's your favorite kind of plant? Favorite? All plants are favorite.

Every plant is important. Mukherjee says the job of building the library was enormous. They'd have to sift through hundreds of canonical texts, thousands of medicinal and herbal treatments going back hundreds of years. They brought in a team of experts in Ayurvedic medicine to translate and contextualize all this material, which was perhaps even more challenging than it sounds. Because Ayurvedic remedies, Mukherjee explains,

are often written in verse and often in Sanskrit. Then they had to convert that ancient medical poetry into a specific patent categorization system. Think of it like a Dewey decimal system for patent examiners. And finally, eventually, they translated all those formulations into Spanish, French, German, and Japanese. It was full-time, 24-7, morning 9 to 7, Saturday, Sunday included, because the time was limited and the task was huge. Working their way through Ayurvedic medicine took years. They also started on India's other major medicinal traditions.

Eventually, they had experts fluent in Urdu and Farsi and Tamil and several other languages. Then yoga was added to the library's charge because Mukherjee and his colleagues learned about people trying to patent styles of yoga in the U.S. So far, they've entered about 450,000 remedies into the library. Can you believe it? That's a lot of lines of verse. Yes. And all of this work, this entire vast library of knowledge, it wasn't for the public. It was built solely for the eyes of the world's patent examiners. That was part of its design. About 15 years ago, the library

started to go live. Patent examiners started consulting the database as they evaluated new applications. Pretty soon, Mischelker says, the library wasn't just helping to take down bad patents. It was also sending a message to would-be biopirates. It acted as a scarecrow because previously they would apply left and right, you know, the multinational companies and other companies. Now what happened was that with the fear of getting caught, they stopped applying. Meshalkar claims that so far, the library has helped prevent, revoke, or modify over 300 would-be patents. And while that may sound like it could

have a stifling effect on innovation, the way the patent system works, if someone actually does innovate on some existing piece of knowledge, the library shouldn't keep them from getting a patent. Yeah, the library stops patent applications that are more or less copy and pasted from Indian traditional knowledge. Those are the ones it takes down. But here's the thing about Meshalkar's traditional knowledge digital library. Not everyone is convinced of its success, and the loudest critics are experts in patent law. Prashant Reddy is an intellectual property scholar

who writes for an Indian legal blog called Spicy IP. So it's about intellectual property disputes that might cause, like, legal indigestion? Well, you're looking at spicy food through the lens of indigestion? Well, you're looking at spicy food through the lens of indigestion. Most of us look at spicy food in India as a source of great joy and pleasure. That's right.

I guess I'm centering a particular palette with that joke. Yeah. Prashant's main argument against the traditional knowledge digital library, or TKDL, is that it never actually needed to exist in the first place. I think TKDL has been an unnecessary waste of public money.

Prashant says to understand why he calls the library an unnecessary waste, you have to think about how patents actually function in the world. Patents, he explains, are all about protecting the right to commercialize new ideas. But most patents never really get used. The ideas they're protecting never make it to market. And so arguably, those patents aren't doing anything the Indian government needs to worry about. They're basically just like pieces of paper sitting in a filing cabinet. And as for the ideas that do make it to market, Prashant says the Indian government doesn't need to worry about those either. Here's why. Let's say I'm the holder of that patent on turmeric for wound healing. That means basically I've called dibs on making an actual ointment or whatever. And say I actually make that product.

I get it into stores. It's a huge hit. Tubes are just flying off the shelves. Well, now other companies are going to start to take notice. Yeah. Let's say I'm a competitor in the medical ointment space. I want to get in on this turmeric ointment money. So I'm going to take a close look at this patent that is supposedly giving you a monopoly and keeping me from selling my own version. And then when I take that close look,

I'm going to be like, wait a minute, you did not come up with this idea. This is not you. You never should have gotten that patent in the first place. And so I'm going to hire a patent lawyer to make my case. Yeah, this is the heart of Prashant's argument against the traditional knowledge digital library. For any patent with commercial value, somebody in the market is going to challenge that particular patent because they also want to make money off that particular invention and they will do the necessary research to ensure that the patent is knocked off the market. Prashant saying the library is a giant, costly, decades-long way of accomplishing something the market would have just done by itself.

So it doesn't make sense for an Indian government to be investing money in running this entire system to stop some patent being granted in the U.S. or the European Union when the Indian economy is not really affected by it. The only reason they ended up creating the TKDL was because they saw this as a national honor project. Like, how dare these white guys take our traditional knowledge? Dr. Raghunath Mishelkar, the warrior of Haldigati, pushes back on all this in a couple ways.

He plays down the costs of building the library, says it was a relatively small project in terms of labor and fixed costs. And he points to a few patents, like the one on basmati rice, that he thinks could have affected important Indian exports. But Mishelkar also says, yeah, he was never really thinking about this problem in purely economic terms. It was more on moral principle, I would say. I would say it has been a success for the purpose for which it was designed. Meshulkar says the library has done what it was designed to do. And yeah, it was about a moral principle more than a return on investment. And yeah, it was about a moral principle more than a return on investment. Back when all this began, Mishelker saw a problem, this global rush for IP that was snapping up India's traditional knowledge.

And he did what he does. He thought with his heart. He leapt into action with the considerable resources at his disposal. And when the problem turned out to be bigger than he thought, more than just that turmeric patent, he doubled down. Decided that of course the obvious next move was to digitize the collective ancient wisdom of more than a billion people. Meshulker's gonna Meshulker. And, you know, from one angle, you can shake your head at that, like tally up all the money that didn't have to be spent. But there is now this vast catalog of information.

And pretty soon, it won't be just for the world's patent examiners anymore. Last year, the Indian government announced their intention to open up access beyond just patent examiners. to open up access beyond just patent examiners. If it turns out there are new cures hiding in some verses from an ancient Indian text, Meshalkar wants them to be identified and developed and marketed. And this way, maybe everyone will know where they came from.

This episode was produced by Willa Rubin with help from Emma Peasley and James Sneed. It was edited by Molly Messick, fact-checked by Sierra Juarez, and engineered by James Willits and Josh Newell. Special thanks to Graham Dutfield, Martin Fredrickson, Ivana Wright, Shuman Das, and Viswajineni Satyagari. I'm Alexi Horowitz-Ghazi. And I'm Erika Barris. This is NPR. Thanks for listening. And a special thanks to our funder, the Alfred P. Sloan Foundation, for helping to support this podcast.