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.