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Stopping Biopiracy


Vandan Shiva

The

patents on the anti-diabetic properties of karela, jamun, brinjal once again

highlight the problem of Biopiracy – the patenting of indigenous biodiversity

related knowledge.

U.S.

Patent No. 5,900,240 was granted recently to Cromak Research Inc. Based in new

Jersey. The assignees are two non-resident Indians. Onkar S. Tomer and Kripanath

Borah, and their colleague Peter Gloniski.

The

use of karela, jamun and brinjal for control of diabetes is everyday knowledge

and practise in India. Their use in the treatment of diabetes is documented in

authoritative treatises like the "Wealth of India", the

"Compendium of Indian Medicinal Plants" and the "Treatise on

Indian Medicinal Plants".

This

indigenous knowledge and use consists of "prior art". No patent should

be given where prior art exists since patents are supposed to be granted only

for new inventions on the basis of novelty and non-obviousness. These criteria

establish inventiveness, and patents are exclusive rights granted for

inventions.

The

claim to the use of karela or jamun for anti-diabetic treatment as an invention

is false since such use has been known and documented widely in India.

Biopiracy

and patenting of indigenous knowledge is a double theft because first it allows

theft of creativity and innovation, and secondly, the exclusive rights

established by patents on stolen knowledge steal economic options of everyday

survival on the basis of our indigenous biodiversity and indigenous knowledge.

Overtime, the patents can be used to create monopolies and make everyday

products highly priced.

If

there were only one or two cases of such false claims to invention on the basis

of Biopiracy, they could be called an error.

However,

Biopiracy is an epidemic. Neem, haldi, pepper, harar, bahera, amla, mustard,

basmati, ginger, castor, jaramla, amaltas and new karela and jamun……

The

problem is not, as was made out to be in the case of turmeric, an error made by

a patent clerk. The problem is deep and systemic. And it calls for a systemic

change, not a case by case challenge.

If

a patent system which is supposed to reward inventiveness and creativity

systematically rewards piracy, if a patent system fails to honestly apply

criteria of novelty and non-obviousness in the granting of patents related to

indigenous knowledge then the system is flawed, and it needs to change. It

cannot be the basis of granting patents or establishing exclusive marketing

rights.

The

problem of Biopiracy is a result of western style IPR systems, not the absence

of such IPR systems in India. Therefore, the implementation of TRIPs, which is

based on the U.S. style patent regimes, should be immediately stopped and its

review started.

The

promotion of piracy is not an aberration in the U.S. patent law. It is intrinsic

to it. The U.S. laws were originally designed to pirate or borrow industrial

innovations from England. Patents originally functioned as import franchises or

import monopolies. Patents were given for salt manufacturer, for operating

steamboats even though these were not invented in the U.S. Later, the

recognition and stimulation of inventiveness was added as an objective, and the

criteria of novelty, non-obviousness and utility were developed as a test for

inventiveness. However, the earlier objectives of creating U.S. monopolies based

on free import of knowledge from other countries have survived and U.S.

continues to import knowledge which it then converts to "intellectual

property".

Article

102 of the U.S. Patent Law which defines prior art, does not recognise

technologies and methods in use in other countries as prior art. If knowledge is

new for the U.S., it is novel, even it is part of an ancient tradition of other

cultures and countries. This was categorically stated in the Connecticut Patent

Law which treated invention as "bringing in the supply of goods from

foreign ports" that is not yet of use among us.

Prior

art and Prior use in other countries was therefore systematically ignored in

U.S. laws on monopolies granted on the basis of claims to invention. The same

assumption of ignorance as invention is enshrined in the U.S. patent Act of

1952. Section 102 of the Act treats as a prior art use in the U.S. and

publications in foreign countries. Use in foreign countries is not recognised as

prior art.

Section

102 of the U.S. law which defines prior art reads as follows:-

35

USC 102: Conditions of patentability:

Novelty

and loss of right to patent. A person shall be entitled to a patent unless:

A.

The invention was known or used by others in this country or patented or

described in a publication in this or a foreign country before the invention

thereof by the applicant for patent.

Or

B.

The invention was patented or described in a trade publication in this or a

foreign country or in public use or on sale in this country more than one year

prior to the date of the application for patent in the United States.

 

Use

in a foreign country therefore does not constitute prior art in U.S. patent law.

Since

patents are granted for new inventions, denial or non-recognition of prior art

elsewhere allows patents to be granted for existing knowledge and use in other

countries. This is the basis of Biopiracy or knowledge of Indian knowledge

systems, and indigenous uses of biological resources being patented.

U.S.

style patent laws can only pirate indigenous knowledge. They cannot recognise or

protect it.

The

survival of an anachronistic Art. 102 thus enables the U.S. to pirate knowledge

freely from other countries, patent it, and then fiercely protect this stolen

knowledge as "intellectual property". Knowledge flows freely into the

U.S. but is prevented from flowing freely out of the U.S.

If

Biopiracy has to stop, then the U.S. Patent laws must change, and Article 102

must be redrafted to recognise prior art of other countries. This is especially

important given that U.S. patent laws have been globalised through the TRIPs

agreement of the W.T.O.

In

1999, article 27.3 (b) of the TRIPs agreement is supposed to come up for review.

This is the article that most directly impacts indigenous knowledge since it

relates to living resources and biodiversity. In 2000 A.D. countries can also

call for an amendment of TRIPs as a whole.

Since

TRIPs is based on the assumption that U.S. style IPR systems are

"strong" and should be implemented worldwide, and since in reality the

U.S. system is inherently flawed in dealing with indigenous knowledge and is

"weak" in the context of Biopiracy, the review and amendment of TRIPs

should begin with an examination of the deficiencies and weakness of western

style intellectual property rights systems. A globalised IPR regime which denies

the knowledge and innovations of the Third World, which allows such innovations

to be treated as inventions in the U.S., which legalises monopolistic exclusive

rights by granting of patents based on everyday, common place indigenous

knowledge is a regime which needs overhaul and amendment.

Instead

of being pressurised, as India has been, to implement a perverse IPR system,

through TRIPs, India should lead a campaign in W.T.O. for review and amendment

of the system. Meantime, India and other Third World countries should freeze the

implementation of TRIPs. While TRIPs implementation is frozen for starting a

process of review, we should make domestic laws which protect our indigenous

knowledge as the common property of the people of India, and as a national

heritage. The implementation of the Convention on Biological Diversity enables

us to do this. Since CBD is also an international treaty, protecting indigenous

knowledge via a Biodiversity Act does not violate our international obligations.

In fact removing the inconsistencies between TRIPs and CBD should be an

important part of the international campaign for the review and amendment of

TRIPs.

Amending

TRIPs and U.S. Patent laws is the challenge we must take up. The problem is not

our IPR systems but the western style IPR regimes which systematically enable

piracy of indigenous knowledge and practices through patents.

The

review of TRIPs should be used to start amending these deficient systems.

Some

commentators have suggested that Biopiracy happens because our knowledge is not

documented. That is far from true. Indigenous knowledge in India has been

systematically documented, and this in fact has made piracy easier. And even the

folk knowledge orally held by local communities deserves to be recognised as

collective, cumulative innovation. The ignorance of such knowledge in the U.s.

should not be allowed to treat piracy as invention.

Piracy

of indigenous knowledge will continue till patent laws directly address this

issue, exclude, patents on indigenous knowledge and trivial modifications of it,

and create sui generis systems for the protection of collective, cumulative

innovation.

The

protection of diverse knowledge systems requires a diversity of IPR systems,

including systems which do not reduce knowledge and innovation to private

property for monopolistic profits. Systems of common property in knowledge need

to be evolved for preserving the integrity of indigenous knowledge systems on

the basis of which our every day survival is based.

Since

neither TRIPs, nor the U.S. Patent law have scope for recognising knowledge as a

"commons", or recognising the collective, cumulative innovation

embodied in indigenous knowledge systems, if indigenous knowledge has to be

protected, then TRIPs and U.S. Patent laws must change.

Nothing

less than an overhaul of western style IPR systems with their intrinsic

weaknesses will stop the epidemic of Biopiracy. And if Biopiracy is not stopped,

the every day survival of ordinary Indians will be threatened, as overtime our

indigenous knowledge and resources will be used to make patented commodities for

global trade. Global corporate profits will grow at the cost of the food rights,

health rights and knowledge rights of one billion Indians, two thirds of whom

are too poor to meet their needs through the global market place.

India

should loose no time in starting the movement for amendment of TRIPs and U.S.

Patent laws. Our survival itself is at stake.

 

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