Journal of Intellectual Property Rights

Vol 11, May 2006, pp 207-213

Some Reflections on Patent Search: A Case Study of Medicinal Plants of India

S K Soam† and H B Rashmi

National Academy of Agricultural Research Management, Hyderabad 500 030

Received 17 February 2006, revised 15 April 2006

The current changes in legal and administrative framework of patents and other forms of intellectual property at global

and national level have brought changes in organizational and individual attitude towards protection and continuous

monitoring of IPRs generated by them. These changes also brought out economy and efficiency in generation of technology

or intellectual worth. The latest probing technique such as patent searching has been demonstrated as one of the most

effective ways to attain these objectives. This paper also describes constraints and opportunities in conducting patent search

using free Internet websites EPO and USPTO with the illustrative analysis of medicinal plants of India.

Keywords: Patent search, IPR, medicinal plants

In the public research organizations the most

important concern is the effective project

development with high level of economic efficiency

and protection of interests of key stakeholders such as

rural poor farmers via seeking patents. Thus patent

search is a matter of immense importance, and further

critical study due to the present legal context of

regulatory mechanism of access and use of biological

resources and benefit sharing.1 The critical questions

in the area of patents search and its utility are- How to

conduct patent search? What is the reliability and

efficacy of freely available official databases and

websites? How and which information can be used in

patent analysis? And what precautions to be taken for

patent search before submitting a research project

proposal? The present study investigates the issues

discussed by scientists i.e. characteristics of a good

patent search- plan a search strategy, identify retrieval

methods to reduce uncertainty and adopt search

processes to deal with complexity and ambiguity.2

When many scientists hear the word ‘patent’ their

experience might cause them to think of exorbitant

fee charging lawyers and expensive professional

patent searches.3 Bad patent search done is worse than

not done, searching patent literature is a mixture of

skill and art, it raises the issue that should scientists

go for outsourcing of patent search (commercial

approach) or do by themselves (academic or

conservative approach). The academic approach of

patent search has several advantages its cheaper,

freely available databases can be used (are these

databases effective?), extremely useful for

identification of research body or research groups thus

enhancing the university-firm link4 for commercial

partnership. Other benefits of academic patent search

are research segment analysis, identification of focus

of research and missing links, which help in

formulating futuristic research planning on the basis

of corporate strategic decision process.

Outsourcing of patent search is another option i.e.

commercial approach and it would need technically

and legally competent contractors who maintain strict

confidentiality5; enhanced capability of scientists in

patent search matters i.e. academic or conservative

approach would not only help most research

organizations in developing nations but would also

add value to the expected outcome of the outsourcing

approach. Despite many advantages of free databases

on the Internet, the disadvantage is that the novice

user does not realize that expert advice is needed at

the site itself; therefore scientists have to develop

expertise in patent search.6 The study provides some

insights to some of referred aspects of patent search to

integrate it as an important tool in research

management process where one should not only be

sure of good patent search but also take care of legal

status of the results received from Internet, and also

Internet citations in the search report.7

Prior Knowledge on the Subject

In India at present, Technology Information and

Forecasting Council (TIFAC) and National

Informatics Centre (NIC) are the only free online _____________

†Email: soam @naarm.ernet.in

J INTELLEC PROP RIGHTS, MAY 2006

208

databases for retrieving patent information. Around

11 million pages of Traditional Knowledge Digital

Library (TKDL)8 would provide information on

traditional knowledge associated with medicinal

plants of India that can be accessed by the patent

examiners all over the globe as a prior art search tool.

At the global level efforts in patent search for public

use were initiated with the introduction of

‘computerized classification searching to the public’

by the United States Patent and Trademark Office

(USPTO) in the 1970s. In 1972, the International

Patent Documentation Center (INPADOC) was set up

in Austria to create a world wide patent index

database. Later the European Patent Office (EPO).9 in

1998 launched esp@cenet.

The review of literature reveals the significant use

of patent search in the recent past in different arena of

research. Patent overlapping studies through

searching of patents and conducting cluster analysis

have led to identification of claim overlap profile of a

patent; patent relatedness so done, helps in assessing

the competitive potential of technology.10

Trends in

patenting activity in a particular research segment has

been verified by several scientists in the past e.g.

retrieving information about focus of research in

various sectors of Indian agriculture11

; systematic

patent analysis of phytochemicals in tea explored the

missing information because of nonexistence of

patents with respect to various enzymes.12

Examples

of technology specific exploratory research are also

available e.g. crafting the claims for different types of

bio-sequences and analysing problems in current tools

of sequence analysis and patent information

searching.13

The process of patent search has been on

the research agenda of some scientists e.g.

development of deterministic and probabilistic

decision models to decide what to search, where to

search, how to search further, which claims to read,

and how to check legal status etc.

The present study was conducted during December

2004 to February 2006, It was the appropriate time to

do the benchmark kind of patent search survey in the

turbulent situation of patenting in India due to receipt

and opening of mailbox applications under Article

70.8 of Trade-Related Aspects of Intellectual Property

Rights (TRIPS), and it is a well known fact that

significant number of patents have been sought for

medical and toiletries under Patent Cooperation

Treaty (PCT)14

Conducting patent search for those

medicinal plants of India about which traditional

knowledge already exists is the obvious choice due to

many factors such as recent cases of patent revocation

in developed nations, provisions of intellectual

property protection and benefit sharing on account of

traditional knowledge as reflected in various

international conventions, and special measures like

creation of TKDL by the Government of India to

protect traditional knowledge pertaining mainly to the

medicinal plants. The studies in a similar fashion

referring to the major reshuffle period that took place

in the patenting system have also been conducted

elsewhere which reflect the impact of major changes

that occurred in US law on 8 June 1995 and 29

November 2000.15

Methodology Employed The patent information is now conveniently and

widely available, it is also inexpensive when collected

through Internet websites. Several search tools are

available via Internet these are metasearch engines

such as Vivisimo, private service providers such as

IBM patent web server where the hits were averaging

170,000 per day in June 1997(ref.16) official

websites17

(some of which are highly preferred)18

and

commercial databases.19

But for simple search of

records commercial databases are quite costly e.g. one

complete record from Delphion costs six US Dollar, it

is therefore not possible for many public

organizations to bear huge cost involved in patents

record searching. Nevertheless analysis of patent

search record through these commercial databases

also reveals significant variation in searched

information.20

Implicitly the present study has the

content of likely approach to be followed by most of

the public organizations; therefore it was decided to

use the official databases of EPO and USPTO as

available to the public through their respective

websites. The patent search strategy was to give the

Latin name of genus and species in quick search and

keep the option of worldwide search. The data so

obtained was filtered and clustered for several kinds

of analysis, the similar methodological approach have

been used earlier.21

As the study pertains to the medicinal plants of

India, a list of 360 plants was prepared from the

publications of CSIR22

and ICAR.23

The criteria for

the selection were that the plant should have a name

in sanskrit and also reported medicinal use.24

The

patent search was done thrice i.e. December 2004 (1st

search), February 2005 (2nd

search) and January 2006

(3rd

search). Through scrutiny of individual patent

SOAM & RASHMI: SOME REFLECTIONS ON PATENT SEARCH

209

documents, utmost care was taken during patent

search so that studied species actually have the patent

and not merely reflected as a reference in the patent

document relating to some other matter.

Results and Discussion The patents search was done for the listed 360

plant species belonging to 93 families. The top five

families representing significant number of plants are

Fabaceae (25 species), Apocyanaceae (18 species),

Euphorbiaceae (15 species), Compositae (12 species),

Cucurbitaceae and Solanaceae with 11 plant species

each. The results of the patent searches conducted

thrice and the concerned points of discussion are as

follows:

Patents Records Analysis

During first patent search (Dec 2004), 160 plant

species (44.4% of studied species) which had patent

record, increased to 166 during second search (Feb

2005), though only 6 new species added to the list but

change of patent records during this period has

occurred in 63 plant species overall i.e. only 17.5% of

total species studied; for these 63 species the total

patent records in first search were 613, which in

second search increased to 1370 patent records

(123.5% change); the change which occurred in

patent records of important species is given in table 1.

Still there were 194 plant species (50.8% of studied

species) that did not have any patent record available

from EPO and USPTO websites, the study of

medicinal utility of these species against 22 identified

major disorders/diseases/uses reveal hard fact that

several of these plant species have significant

medicinal uses as presented in table 2. Out of this list

of 194 plant species, there are 98 species that are

reported of medicinal use in 2 to 4 disorders, 23

species are reported of medicinal use in 5 to 6

disorders, and 4 species i.e. Polygonum aviculare

(Nisomali), Portulaca quadrifida (Laghulonika or

Uppadyki), Plumaria acuminata (Kshira champa) and

Plumeria rubra Linn var. acutifolia (Kshira champa)

are reported of medicinal use in more than

6 disorders.

The total patent records in first search were 1832

(1652 in EPO website and 180 in USPTO website),

which increased by 41.3% to 2589 (2471 in EPO

website and 185 in USPTO website) during second

Table 1 Most important species reflecting significant number of

patents records

S. No. Name of the Vernacular name Dec 2004 Feb 2005

Plant

1 Glycyrrhiza Yashti- madhu or 48 259

glabra* Mulahatti

2 Catharanthus Sadabahar 145 145

roseus

3 Gymnema Meshashringi/Madhu 39 94

sylvestre* nashini

4 Gardenia Gandharaj 0 71

jasminoides*

5 Morinda Ashyuka

citrifolia 64 64

6 Momordica Sushavi/Karela 36 59

charantia*

7 Centella Mandukaparni/

asiatica Brahmi-manduki 56 56

8 Melia Mahanimba 23 52

azadirachta*

9 Phyllanthus Adiphala/Amalaka 40 40

emblica

10 Piper nigrum Maricha/Kali mirch 38 38

11 Terminalia Harra 15 37

chebula*

12 Nelumbo Ambuja

nucifera* 17 36

13 Tribulus Gokshura or 2 29

terrestris* Ikshugandha

14 Tagetes Sthulapushpa or

erecta* Ganduga 2 21

15 Rubia Kala-meshika or 1 19

cordifolia* Manjistha

*Top ten species, where significant variation occurred between

first and second patent search

Table 2 The number of species reported for various

medicinal uses

S.no. Human system of

disorder/disease/use

Number of

species

1. Digestive system 81

2. Skin 48

3. ENT 45

4. Urinary system 42

5. Rheumatism 31

6. Hepatitis and liver 30

7. Gynecological 24

8. Brain & neurological 22

9. Nutritional 20

10. Aphrodisiac 14

11. Diabetes 11

12. Venereal diseases 11

13. Heart & circulatory 10

14. Leprosy 10

15. Insecticide & toxins 10

16. Cancer/tumors 9

17. Reproductive system 9

18. Ophthalmic diseases 9

19. Dental problems 8

20. Antibiotic & antiseptic 7

21. Removal of body stones 4

22. Promoting hair growth 3

J INTELLEC PROP RIGHTS, MAY 2006

210

patent search. It means the average rate of addition of

new patent records was around 252 records per

month; on an average around 15.6 patent

records/species are available. The important point of

analysis is that the inclusion of new records during

second search is more in EPO, while in USPTO

increase was from180 to 185 records. Out of the total

records in second search, 67 records are common in

both EPO and USPTO websites; which constitute

2.6% of the total records. With the free availability of

patent documents on the Internet, one should not get

the impression that all the patents are available on-

line, as this is a false impression.25

Commercial

databases are also not immune to such kinds of

variations among searched patent records, the

significant variations are reported in the patent

records for the same word analysed simultaneously

using PlusPat, IFI CLAIMS and Delphion.26

During second search an observation was also

made about ownerships of patents by any Indian

individual (citizen or otherwise) or organization, it

was found that 8.6% of the patent records reflect

typical Indian names (these persons may be Indian

citizen, persons of Indian origin or non resident

Indians) or Indian organizations. Nevertheless these

patent records may be patents granted or patents

published, the detailed enquiry of the legal status of

the patent record was not done in this study. All the

patent documents published are not granted patents

e.g. in 2003 only 42% of published documents were

granted patents27

, therefore ensuring the legal status

either through EPO and USPTO websites or using

specific databases such as IFI Current Legal Status

Database (IFICLS) is necessary. If the public

organizations opt for outsourcing the patent search

then major issue is the credibility of the patent

searchers and organizations as evident through some

sort of certification. At present, no official agency is

available for the purpose but in 2003 after a

conference at EPO, an initiative was taken to set up

COPS.28

In public research organizations, there is nearly

one-year gap between application for a research

project for funding and final approval of grant

commitment and finally initiation of the project.

Keeping this situation in mind, a third patent search

was conducted during January 2006, almost one year

after the second search. In this search, patent records

were searched for those 194 species, which did not

have any patent record at the time of second search.

The patent records after third search reveal that 45.4%

of these species has 2352 patent records now29

, still

there are 106 plant species (54.6%) that did not have

any patent records available at EPO and USPTO

websites (see Appendix); interestingly the list

includes very well known plants such as Rauvolfia

serpentina syn. Ophioxylon serpentinum and

Momordica dioca etc.

Precautions during Patent Search Operations

While conducting patent search certain precautions

are necessary:

1. Ensure that variations in botanical names of a

plant have been collected from various floras and

other resources. For example the botanical name for

“brahmi” is given as Bacopa monniera in ICAR

publication23

and Bacopa monnieri in CSIR

publication22

; both the names provide varied number

of patent record in EPO and USPTO websites.

2. Experiment with additions or deletions of

some letters in the botanical names. For example

Boerhaavia diffusa and Boerhavia diffusa gives

varied number of search records in EPO website.

3. Search with complete botanical name

consisting of genus and species both. For example

one must be clear whether searching for Jatropha

multifida or Jatropha glandulifera, in the later

case no record was available.

4. Always conduct patent search with all the

available synonymous names. It has been

critically observed in the present study that the

maximum patent records are available in this way.

For example Cephaelis ipecacuanha also known

as Cephaelis acuminata and Psychotria

ipecacuanha, but in third search no record is

available for later two names in EPO or USPTO

website, while for Cephaelis ipecacuanha, 3 and

7 records are available in EPO and USPTO

respectively, though all USPTO records do not

contain any claim related to this plant, rather it

has been mentioned in the patent documents in

some other contexts.

Obstacles during Patent Document Downloading

Several obstacles have been observed in

downloading complete patent document, often the

patent has been granted but records are not available

in the website, many a times only bibliographic

information is available, occasionally the mosaics are

not available and sometimes document is in language

other than English, hence it is almost impossible to

SOAM & RASHMI: SOME REFLECTIONS ON PATENT SEARCH

211

collect complete document of all the searched records.

Free service providers are far from complete in many

ways such as- only one third of digitized documents

have a full text version; documents cannot be

translated automatically; in many official databases

records are missing from electronic archives; non-

availability of images, and constraints in capturing

full text.30

For detailed claim analysis, 220 patent documents

from complete list obtained from second search were

selected because these documents refer to granted and

valid patents, complete document alongwith images

were available, and also it is correct sample

representation of all the available patent records.

Through scrutiny of claims in these patent documents,

eight major sectors were identified for in-depth

analysis. In total studied documents, 477 claims fall in

one of these sectors which are distributed such as- the

maximum number of claims (27.5%) are for method

of drug administration/treatment, followed by claims

for poly-herbal drug formulation (23.3%) i.e. many

species along-with searched species have been used

for a medicinal preparation, process or method of

isolation of drug (15.9%), cosmetics (11.9%), new

molecule or chemical (10.7%), mono-herbal drug

formulation (8.4%), poly-herbal health drink (2.1%)

and mono-herbal health drink (0.2%). The claims for

new chemical and molecules are very less; this can be

seen in the light of the claims in the applications

received under mailbox provisions.31

Conclusion Several species including many important species

as listed in the appendix do not have any patents yet

AppendixPlant species with no patent records available at EPO and USPTO

Aconitum ferox

Adiantum incisum syn.

A. caudatum

Aerva lanata

Aerva tomentosa

Aganosma dichotoma syn. A.

caryophyllata

Ajuga bracteosa

Amorphophallus sylvaticus,

syn.Synantherias sylvatica

Anaphalis neelgerriana

Andropographis paniculata

Aristolochia bracteata

Arthrocnemum indicum

Asplenium adiantoides

Asplenium adiantum-nigrum

Asteracantha longifolia

Atropa acuminata

Azima tetracantha

Bauhinia acuminata

Bauhinia tomentosa

Canscora decussata

Chlorophytum arundinaceum

Clematis triloba

Clerodendron phlomidis

Cocculus hirsutus syn.

C. villosus

Colchium luteum

Coldenia procumbens

Combretum benghalensis

Crinum defixum

Crossandra spectabilis syn. C.

sericea

Cucumis trigonus

Cylista scariosa.

Dendrophthoe falcata syn

Loranthus falcatus,

L. longiflorus

Enhalus fluctuans

Erianthus Canadensis

Eulophia campestris

Eulophia nuda

Ficus heterophylla

Garcinia xanthochymus syn.

G. tinctoria

Gardenia gummifera

Gisekia pharnaceoides

Glinus oppositifolius syn.

Mollugo oppositifolia,

M. spergula.

Glycosmis pentaphylla

Gmelina asiatica

Hedyotis biflora

syn.Oldenlandia paniculata,

O. biflora.

Hedyotis corymbosa

syn.Oldenlandia corymbosa

Heliotropium eichwaldi

Hiptage benghalensis

Holostemma annularis syn.

H. rheedei

Hydrolea zeylanica

Ichnocarpus frutescens

Indigofera aspalathoides

Indigofera enneaphylla

Indigofera oblongifolia syn. I.

paucifolia

Jasminum angustifolium

Jasminum arborescens

Jasminum rottlerianum

Jatropha glandulifera

Kirganelia reticulata syn.

Phyllanthus reticulates

Leea macrophylla

Limnophila gratioloides syn.L.

indica, L. racemosa

Lingustrum indicum syn.

L. nepalense Wall

Luffa echinata

Malus verticillata

Melia composita

Merremia emarginata syn.Ipomea

reniformis

Merremia tridentata syn. Ipomoea

tridentata

Mollugo cerviana

Momordica dioca

Naregamia alata

Opuntia decumana syn.

O. ficus-indica

Ormocarpum cochinchinensis syn.

O. sennoides, O. glabrum

Pachystoma senile

Pancratium odoratissimus syn., P.

fascicularis, P. laevis, P.

variegatus,P. latifolius, P.

amaryllifolius, Ptectorius soland

Pedilanthus tithymaloides

Pentapetes phoenicea

Pergularia daemia syn. Daemia

extensa

Pithecellobium monadelphum syn.

P. bigeminum, P. gracile

Plumeria acuminata

Portulaca quadrifida

Randia uliginosa

Randia spinosa syn.R. dumetorum,

R. brandisii,

R. lonispina , R.

tomentosa Xeromphis

spinosa

Rauvolfia serpentina syn.

Ophioxylon serpentinum

Saccolabium papillosum

Salix tetrasperma

Schweinfurthia

sphaerocarpa

Sesbania sesbane

Solanum ferox

Strychnos nuxvomica

Strychnos potatorum

Swetia densifolia syn.

S. decussata

Symphorema racemosa

Tribulus alatus

Trichodesma indicum

Trichosanthes cucumerina

Trichosanthes dioici

Tylophora tenuis

Vanda tessellata syn.

V. roxburghii

Vateria acuminata syn

V. copallifera

Ventilago madraspatana

Vepris bilocularis syn.

Toddalia bilocularis

Viscum articulatum syn.

V. nepalense

Zanthoxylum limonella

Ziziphus glabrata

Ziziphus oenoplia

J INTELLEC PROP RIGHTS, MAY 2006

212

and some of them have very high utility in quite

complex diseases. Enough scope is thus available for

patent oriented research, it is not necessary to have

very complex kind of research projects, and the

patents have been taken on simple polyherbal

formulations also. It is also observed that the results

would be more meaningful if utmost care is taken in

selection of means for patent search, utilizing multiple

search options and careful search operations. Besides

lack of multilingual information access, the

statistically designed decision support models for

quantification of risk associated with techno-legal

decision is another grey area of research in the field of

patent search. It is also observed that records in the

patent search change very fast, additions of the new

records occurs within a day, therefore it is suggested

that keeping in mind advance project planning

research strategy should be made after ensuring best

patent search.

Acknowledgments The authors are thankful to the referees for their

highly useful and constructive comments to improve

the quality of the paper.

References 1 Various provisions of the Biological Diversity Act, 2002 and

the Protection of Plant Varieties and Farmers’ Rights Act,

2001 ensures the use of biological resources in a manner that

rights of country and communities are protected. The

National Biodiversity Authority (NBA), Chennai, and

Protection of Plant Varieties and Farmers’ Rights Authority,

New Delhi are the constitutional authorities for effective

implementations of rules under these Acts.

2 Julia Deboys, Decision pathways in patent searching and

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3 Douglas Drysdale, Paten update, Targets, 2(4)(2003), 177-

178, available at www.drugdiscoverytoday.com.

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8 TKDL is a collaborative project between National Institute of

Science Communication and Information Resources

(NISCAIR), Council of Scientific and Industrial Research

and Department of AYUSH, Ministry of Health and Family

Welfare, which is being implemented at NISCAIR.

9 Espacenet is perhaps most widely used and comprehensive of

the freely available databases, for details please refer paper

of Douglas Drysdale on endnote 3.

10 Juneseuk Shin and Yongtae Park, Generation and

Application of Patent Claim Map: Text Mining and Network

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(2005), 198-205.

11 Rekha Mittal and Gian Singh, Patenting Activities in

Agriculture from India, Journal of Intellectual Property

Rights, 10(4)(2005), 315-320.

12 Rashmi Phadnis and Hirwani R R, Patent analysis as a tool

for research planning: case study of phytochemicals in tea,

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221-231.

13 Heahyun Yoo, Chandra Ramanathan and Cynthia Barcelon-

Yang, Intellectual property management of biosequence

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14 34,000 applications were filed under PCT, developing

countries represented 6.7% of international applications, and

India filed 648 applications. For details please refer

www.wipo.int.

15 Simmons Edlyn S, Trends disrupted – patent information in

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292-301.

16 Sibley Jim F, The Internet dawn of extensive, easily

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17 Among the official Internet websites the most important are

http://ep.espacenet.com/ (esp@cenet) of EPO and

http://www.uspto.gov/patft/ of USPTO. The other important

official databases are Austrian INPADOC and French INPI

and Japan Patent Office (JPO) database.

18 The EPO and USPTO databases are preferred due to many

reasons e.g. more than 75% documents in these databases

have full text. For details please see Lagemaat Willem Geert,

Patent Archives- the silent threat, World Patent Information,

27(1)( 2005), 27-29.

19 The commercial databases such as PlusPat, IFI CLAIMS,

Delphion, and gene sequence databases like GeneSeq,

GeneBank, Registry and PCTGEN etc. are the value added

databases, which provide avenues for various kinds of patent

analysis.

20 Please see page 296 of paper by Simmons as referred at

endnote16.

21 Pal S K, Madhukar A and Mitra A, Patenting in

Micromagnetic Sensors, Journal of Intellectual Property

Rights, 10(2)(2005), 99-105.

22 Anon, The Useful Plants of India, (Publications and

Information Directorate, Council of Scientific and Industrial

Research, New Delhi), 1986, 918 pages.

23 Umrao Singh, Wadhwani AM and Johari, BM, Dictionary of

Economic Plants of India, (Indian Council of Agricultural

Research, New Delhi), 1983, 283 pages.

24 The assumption was that listed plants would represent the

species about which the Indian traditional knowledge is most

ancient.

25 It has been illustrated that some patent record on EPO’s

Bacon Numerical Service (BNS) and not in INPADOC and

SOAM & RASHMI: SOME REFLECTIONS ON PATENT SEARCH

213

vice versa. For details please see page 27 of paper by

Lagemaat as referred at endnote 7.

26 Please see page 296 of paper by Simmons as referred at

endnote 16.

27 Please see page 295 of paper by Simmons as referred at

endnote 16.

28 Certification of Patent Searchers (COPS) registers the

organizations and individual patent searchers to raise the

status and bring them recognition through improving their

standard of search and also certifying it. For details see,

http://www.cops-news.info/

29 It includes one patent record for Withania coagulans (patent

number WO2005030232, date of publication 7th July 2005)

where this plant is used in preparation of the polyherbal

composition for treatment of AIDS.

30 These concerns have discussed by Lagemaat (2005) in his

paper at various places. For details see his paper as referred

at endnote 19.

31 Fredrick Abbott et al (2005) describe that out of the 7000

applications under mail box provisions that made public,

only 250 applications belong to new chemical entities and

new drugs, and 6,750 applications relate to something else

i.e. mostly related to “ever greening” of the patents. For

details see, Frederick Abbott M, Amy Kapczynski and

Srinivasan T N, The draft patent law, The Hindu, 12 March

2005.