Various unconventional strategies have to be worked out at the earliest in accordance with the present state of legislations related to global Intellectual Property Rights (IPR) to safeguard the celebrated herbal compound Jeevani from further exploitation by overseas firms, opined Dr MD Nair, renowned IPR expert and pharma consultant.

Talking to Pharmabiz, he said it was almost impossible to retrieve the product patent as per the available information. "From what little information I have gathered so far apart from the Pharmabiz inputs, it seems Nutrisciences LLC have been marketing this at least since 2000, and they had registered the Trade Mark 'Jeevani' in the US sometime ago. Trade Mark registration is not necessary to prevent others from using the name if it can be proved that the name was in existence in the market and usurpation of the name by a third party confuses the public and causes damage to the original user of the mark. Hence not having registered the mark by TBGRI is not going to hurt our interest " felt Dr Nair.

However, he noted that the long delay in taking action on the part of the aggrieved party, (ie the TBGRI or Kanis,) makes a petition for injunction very difficult, if not impossible, even if the US firm's registration was invalid in view of the established name of Jeevani in the market.

Observing that the process patent taken by TBGRI was invalid in the US and has been further weakened by the expiry of the patent validity, he said that it was almost impossible to pull up the US firms as per the clauses under the rules related to 'passing off', related to unlawful imitation of products. Further, he said elaborate inputs, including details on the terms and conditions of the technology transfer to AVP and their marketing options, have to be analysed to work out the required strategies before initiating legal procedures.

He noted that various issues have to be considered before filing a legal case, which could be a pioneering classical example to protect the IP rights of a tribal community, infringed by another country. Also, it was not sure where to approach and whom to approach.

"The CBD legislation which could have been invoked if illegal transfer of material is taking place was not operative at the time they started this. In any case, CBD is not part of WTO as of now and as such, there is no dispute settlement mechanism for violation of CBD. Now that India has legislated CBD, it is possible perhaps to legally prevent further transfer of this material if we are the only source of the plant" noted Dr Nair

This argument also could be weak as it is said that Aarogyapacha or a similar herb is grown in countries like Sri Lanka and Madagaskar. "If Nutriscience and other firms prove they are sourcing it from there, our claim will further weaken. Otherwise, if the Pharmabiz report on large scale smuggling out of Aarogyapoacha is right, we can invoke the rules related to Geographical Indication to protest against exploitation of our natural resources," noted Dr Nair.

He said another aspect that could be considered was a case for implicating stealing of Trade Secrets (which is part of TRIPS Agreement), if information of a confidential nature and which is not in the public domain has been used for promotion of the product or for regulatory clearances.

"I don't want to jump to conclusions and comment on the subject, as I prefer to do that after analyzing the various inputs," felt Dr Nair. He also revealed that he was in touch with his associates in USA to gather more information related to the market standing of Jeevani in the US and other countries and further data, as per a request from TBGRI director to advice on the matter.