“Novel” is a term that is used to refer to something which is new, never seen or heard of before. Unfortunately, the interpretation of this term does not seem to be universal. The developed world’s interpretation of this term is highly dependent on the convenience factor. The convenience being referred to here is certainly that of the developed world. This convenience on part of the developed countries comes into play when they grant patents to a native person or corporation for some knowledge, concept or commodity which is already a part of some developing country’s traditional knowledge. Biopiracy is the term for such acts.
In simpler words, Biopiracy describes the acts of ‘legal piracy’ often committed by the developed world to claim patent and take unfair advantage of traditional knowledge of developing countries associated with biological resources. Biological diversity comprises of all plant, animal and micro-organism species occurring naturally on the earth. Traditional knowledge associated with such biological resources is of crucial importance. This knowledge is an intangible source that can be used for developing useful products & processes and consequently result in commercial gains. Biopiracy is a problem mainly plaguing the developing countries as these are the countries which are rich in bio-diversity.
When actually these bio-diversity rich countries should be enjoying commercial success courtesy their bio-diversity reserves, unfortunately often the multi-national corporations from the developed world play a spoilsport. These corporations claim and secure patents for knowledge long known to the developing countries in the name of novelty. What makes the situation even worse for the developing countries is that prior to using their knowledge, their consent is not sought and neither are they offered any share of profit that shall flow in once the ‘their’ knowledge is put to use.
On the issue of bio-piracy, the world has two major divisions, namely, the global north and the global south. The global north comprises of the developed nations and the global south comprises of the developing nations which are rich in bio-diversity. India being a part of the global south & one of the twelve mega biodiversity countries of the world has had its share of bio-piracy cases. Here’s taking a look at some of them:
THE NEEM TREE PATENT
In 1995, the U.S. Department of Agriculture and a pharmaceutical research firm secured a patent on a technique to extract an anti-fungal agent from the neem tree. A legal opposition was filed by India over the grant of this patent. Neem tree is indigenous to India and has been used for over 2000 years. The patent was eventually overturned in 2005. The pharmaceutical company involved in the dispute had argued that as traditional Indian knowledge the properties of the neem tree had never been published in an academic journal, hence it did not amount to prior knowledge.
There are approximately 14 million neem trees (Azadirachta indica) in India. The tree is seen as a curer of all ailments and has been referred to as the ‘blessed tree’ in India. The leaves and bark of the tree are used to treat diseases such as leprosy, ulcers, & diabetes as well as skin ailments. In India, access to neem products is very easy.
The USA says that whatever they are doing will only help India. India on the other hand had made it clear that it is not against sharing its knowledge about the neem tree, rather it is against the countries and corporations which intend to put an end to its use in India.
THE BASMATI RICE PATENT
In September, 1997, a Texas company called Rice Tec got a patent on Basmati rice lines and grains and the ways of selecting that rice for breeding. However, the patent rights allow Rice Tec to not only call its aromatic rice Basmati in U.S. but also label it as the same for exports. This patent was considered a violation as the long grain aromatic rice grown only in Punjab, Haryana and U.P. is referred to as Basmati.
The dispute over the patent was not just over the name, but also regarding the adverse economic repercussions it would have for India. With this patent India stood lose out on its exports to US which form the 10 percent share of the total basmati export. Also India’s position in crucial markets like U.K., Middle East and West Asia could be affected.
THE TURMERIC PATENT
Turmeric is a tropical herb grown in the eastern part of India and has several popular uses. It is a powdered commodity which is used as a dye, a cooking ingredient and is also used for medicinal purposes. In the 1995, turmeric was at the centre of a patent dispute. University of Mississippi Medical Center was granted the patent for the wound healing properties of turmeric with the exclusive right to sell and distribute the turmeric.
India’s Council of Scientific and Industrial Research challenged this patent stating that turmeric’s medicinal uses were known to India since thousands of years. The US patent office looked into the matter and the patent was finally revoked in 1997.
A clause in the US patent laws states that any information published or written in any part of the world will be deemed as ‘common knowledge’. This clause helped India’s case and India presented published evidence pertaining to the wound healing properties of turmeric. This evidence proved that wound healing properties of turmeric were not novel and hence the patent was revoked.
THE WHEAT PATENT
In this case the European patent office granted a patent to a Corporation called Monsanto for a wheat variety named Galahad 7. The dispute is that this variety of wheat was bred using a traditional Indian wheat variety called Nap Hal.
Nap Hal has been used in India since the early eighties. This variety of wheat has low gluten levels thereby making its dough less elastic and hence suitable for preparing crisp biscuits and crackers. It has been long used in the food processing industry.
Just like it happened in other patent cases, in this case also nor the claimant die not seek any prior consent and neither a profit sharing agreement was signed with the Indian farming community.
KARELY, JAMUN AND BRINJAL PATENT
In this case, Cormark Research Inc. of the United States has secured the patent for the use of bitter gourd (Karela), blackberry (jamun), gumar and brinjal for anti-diabetic properties. But actually these vegetables have been used for curing diabetes in India for years.
THERE’S MORE TO IT
These aforementioned cases are just a few examples which elucidate the extent of the problem of bio-piracy. Around 2000 patents related to Indian system of medicine are granted every year by the patent offices of the foreign countries. Grant of patents to corporations which do not seek prior permission from the country whose traditional knowledge they are using and do not enter a benefit sharing agreement with the country concerned is not only immoral but also a gross violation of the international agreements like the convention on bio-diversity (CBD) and the International Treaty on plant Genetic Resources (ITPGR) which uphold the rights of the farming community over the genetic wealth used in agriculture.
The main reason which is preventing the biopiracy issue from dying down is the definition of ‘novelty’. There are major differences in the definition of ‘novelty’ in the national laws of various countries. For instance there is a striking contrast between the patent laws of USA & India. The public use or sale in a foreign country of a concept, knowledge or process does not count as ‘prior art’ as per the US law. As per the Indian Patents Act:
'new invention’ means any invention or technology which has not been anticipated by any publication in any document or used in the country or elsewhere in the world before the date of filing the patent application with complete specification.'
BIOPIRACY ISSUE AT THE WTO
India along with other developing countries facing the predicament of biopiracy like Venzuela, Thailan, Cuba, Pakistan etc has been fighting against this issue in the WTO. The United States of America has come forward as the strongest non-supporter of the proposal put forward by some members of the south to incorporate amendments in the TRIPS agreement regarding the information to be provided by an applicant seeking a patent.
As per this group of countries an applicant shall provide the following information as a pre-requisite to securing the patent:
· disclosure of the source of the traditional knowledge used in the process or product;
· prior informed consent from concerned authorities; &
· proof of agreement on access to benefit sharing with the country of origin of the ‘prior art’.
The argument put forward by U.S is that these amendments will only add to the administrative burden & will lead to extra costs. It also feels that these amendments will only add to the uncertainty in the context of the current patent laws. India with its allies has countered these arguments made by U.S saying that the reasonable amendments like disclosures must be included.
Further it is argued that as biopiracy is a global phenomenon so the steps taken at the national level by the various countries shall not suffice & hence there is a pressing need for WTO to make it obligatory for all its member countries to include the clause of disclosure in their respective national patent laws.
It is high time that the world unanimously agreed on an international treaty which will be a legal binding on all the members alike & will facilitate the proper exchange of biodiversity amongst the various countries. Fighting in the patent offices of the developed countries is not possible every time as it consumes a lot of time & effort & is certainly not a solution. The Nagoya protocol to be signed in Japan in October this year at the tenth Conference of parties to the Convention on Biodiversity brings some hope with it to end this long battle for protecting one’s own resources.