The Tropical Botanical Garden and Research Institute (TBGRI) and the Indian Government should question the US company on marketing product in the name of Jeevani, the herbal drug product of TBGRI, according to Dr. P Pushpangadan, Director, National Botanical Garden & Research Institute (NBRI) and the key player of developing and patenting of Jeevani.

Talking to Pharmabiz, he said that although the TBGRI may have the patent for the immuno-restorative and energy enhancing herbal compound Jeevani, it is not protected at US or the European countries. The product holds a process patent in the country, which does not include the rights of Patent Cooperation Treaty (PTC) of US. If the institute has moved for a product patent under the new patent law of 2005, the US Company would never be able to get approval from the US Government as the product patent includes PTC norms, commented Pushpangadan.

"Jeevani is a prime product of TBGRI which holds exclusive benefit share deal in the world itself. Nobody can make a patent on this product, as we already acquired a patent and the papers published on this are in public domain. If the US company has used the name Jeevani in their product, it would be an infringement of trade mark rules also," he said. The model of benefit sharing, appreciated internationally as a novel initiative, is referred as TBGRI model or Pushpangadan Model of Benefit Sharing.

"I have written letter to Dr. M S Valiathan, (who was leading the governing committee under the Kerala State Science and Technology Council (KSSTC), empowered to decide the future course of action on Jeevani when a US company moved for trademark right on Jeevani a year ago) and I think a letter to the present director also, reminding them to apply a product patent for Jeevani according to the new patent act 2005. I myself advocated for a global patent for Jeevani right from the beginning, but no body else was interested even to move for a process patent," informed Pushpangadan.

He said that the patent for Jeevani, from the Indian ginseng of trichopus zeylanicus, which commonly called Arogyapacha, has been granted by 1999, and seems still valid under process patent.

The company can patent a novel formulation worked out exclusively, and the TBGRI and the government has to conduct thorough investigation on the US product, to clarify the details and to curb infringement of any type. The particular ginseng trichopus zeylanicus is only available in southern most parts of India and any company in need of the product can collect it only from Arya Vaidya Pharmacy (Coimbatore), as the right for manufacturing and distribution is with them, he added.

Dr. M D Nair, an eminent pharmaceutical consultant and a specialist on WTO affairs, commented that the validity of patent claimed by the US company Great Earth Inc. should be checked for more clarification. A patent would be granted only if the product proves its universal novelty, inventiveness and utility before an approval body. If any of these conditions proved to be violated, the patent can be revoked and the TBGRI or the government should collect the product details of Great Earth, for such clarification.

He said that it should also be tested that whether the germplasm of trichopus zeylanicus is only available in the particular area of southern India. If the particular zeylanicus is not available in any other part of the world, copying of the product is also a violation of Conventional Biodiversity rights. "The example of litigation against patent on turmeric, which has been won by the Indian Government and scientific community should be set as a motive in such cases," he added.

It is to be noted that K K Ramachandran, Health Minister of Kerala assured the Kerala ayurvedic community and the public that the Central Government has noticed the fears raised by the Kerala Ayurvedic community on the chances of losing patent rights of traditional ayurvedic medicines and herbs to overseas firms, in the backdrop of the Jeevani issue and campaign in the state against patent amendment. Quoting a letter from Kamal Nath, Union Minister of Commerce & Industry, Ramachandran said that the Department of AYUSH under the ministry of health and family welfare and The National Medicinal Plant Board (NMBP) would be engaged in protecting the rights of Indian medicinal plants and herbs.