For safeguards against bio-piracy

Print edition : October 09, 1999

Governments of developing countries must recognise the urgency to protect their biological wealth and tackle the issue of a soft patent regime at the global review meeting of TRIPS at Seattle.

WEEK after week there are reports of the patenting of some Indian plant variety or the other by multinational agri-business companies. First, it was the patent on neem and its several uses, then came haldi (turmeric), followed by basmati, karel a (bitter gourd), kalajira (black cumin seeds, brinjal... Most of these have been an integral part of traditional systems of medicine in India, evolved over centuries mainly by small village communities. The medicinal and other useful properti es of most of these plants and their many varieties were widely known, although these were not properly documented in most cases. There was no bar on access to such traditional knowledge and no individual or company, far less a foreign one, thought of ob taining private rights on the use of these varieties.

The multinational companies (MNCs) began to scour poor countries in April 1994, when, following the signing of the Marrakesh Agreement, particularly the TRIPS (Trade-Related Aspects of Intellectual Property Rights) component, countries which were a party to the agreement were asked to protect (read individualise) their plant varieties by means of patent legislation. Time-bound proprietary rights began to be bestowed on individuals or companies instead of on the communities with a traditional knowledge b ase. Since patent implies the exclusion of others from IPRs, only the patent-holder is legally authorised to produce or to regulate production by selling, leasing or mortgaging such rights. Anyone producing those products without the permission of the pa tent-holder, obtained in exchange of a fee or royalty, would be violating the holder's legal rights.

Patent rights have been internationalised. This was one of the major features of the TRIPS agreement. Every member-country of the World Trade Organisation (WTO), which was established in January 1995 in order to monitor the implementation of the Marrakes h Agreement, had to recast its patent law in line with the global patent regime as ordained in the agreement, within a given time-frame. The poor countries were given a deadline of end-1999 to modify their laws, while pharmaceutical and agro-chemical ind ustries were given another five years. But that was no more than a formal concession devoid of substance. The time agreed upon was 2005, along with the 'transitory rules' regarding Exclusive Marketing Rights (EMRs). A precondition for WTO membership was agreeing to the EMRs of companies that had patented their products during the transitional period, the transitional period being the time between obtaining WTO membership (1994 in the case of India) and overhauling the patent legislation in line with the global format (2000 in the case of India in general and 2005 in the case of pharmaceuticals). Such transitional rights were not to be questioned by national patent laws.

The modus operandi of the MNCs has been to collect the plant varieties and their germplasms from poor countries in order to cross-breed them with other varieties, and claim that they had invented something novel, non-obvious and of practical use ( which are the requirements for acquiring patent rights), and then to patent them in their own countries or in any other country of their choice. Patenting a product in the United States or Burkino Faso or Burundi is as good as patenting it in Calcutta.

A typical example has been the patenting of basmati by Rictec, a Texas-based firm which, after collecting specimens from India and Pakistan and experimenting and cross-breeding them with other varieties, eventually patented them: first as Texmati, then a s Kashmati, and finally as Basamati. Rictec is claiming novelty because its Basamati, although identical in taste to the sought-after rice variety produced in India and Pakistan, has been produced by following a different method and in a different terrai n. And as such, with the passage of the EMR legislation early this year, the company is, legally and effectively, the owner of basamati. This ownership right has been instantly recognised by WTO members. They now have even the right to exclude indigenous basmati from the Indian market unless it is patented as a product distinct from the variety patented by the Texas-based company or as one that is identical but has been produced through a different process. Under the TRIPS agreement, the onus of providi ng this is now on the Indian or Pakistani basmati producer.

ONE way of combating the menace of bio-piracy is by challenging the patent claims by MNCs in the courts of the rich countries. On the turmeric patent, the Council for Scientific and Industrial Research (CSIR) won a battle. But such legal battles are expe nsive and time-consuming, and not easy to fight in each and every case. The main difficulty, even assuming that the judicial system is neutral, is that courts in the developed countries rely mainly on documentary evidence. Such documents are hard to come by in India. Unlike in the case of China or the Arab countries, India is not known to have had a systematic method of documentation. Without documents a patent application cannot be challenged in a foreign court on the ground of "prior art".

Another method is to counter TRIPS with the United Nations Convention on Biodiversity (CBD), which was signed by 170 countries in 1993, as against 150 signatories for TRIPS. The CBD recognises the collective rights of the village communities, and not tho se of individuals or companies. It further decrees that a rich country's demand for patent rights should not be at the cost of the overriding need for the conservation of plant diversity. It was possible for India to insist that both TRIPS and the CBD, o ne insisting on conformity and the other on diversity, cannot be right at the same time. Unfortunately, such arguments have not been fruitfully deployed by the Indian government in international negotiations to counter patentability, and as a result, ind ividualisation of plant varieties.

A basmati rice crop in Andhra Pradesh. A Texas-based company, which has patented a variety of the rice, now even has the right to exclude indigenous basmati from the Indian market unless it is patented as a product distinct from or produced through a different process from that of the company's product.-

This emphasis on the collective right of village communities can be taken a step further by arguing that the government, as the guardian of numerous village communities, should be permitted to exercise proprietary rights on their behalf. Such a step is l egally feasible and defensible, and would have the additional advantage of protecting plant varieties. Once the sovereign right of a government over the biological wealth of a country is recognised, one can go even further and prepare an inventory of Ind ian flora, particularly the 8,000 medicinal plants targeted by the MNCs, and get those patented before the companies gain access to them. This is the commonsense approach to saving biological resources from lurking predators, rather than engaging in cost ly and risky legal battles in foreign courts.

PERHAPS there are better ways of preventing this poaching that has been going on for five years. But no government in power in India appears to have been concerned enough about the urgency of protecting the biological wealth. Something needs to be done n ow, and fast. The rich countries, poor in biological resources, are keen to gain a time-bound monopoly on India's biological wealth.

Article 27(3)(b) of TRIPS provides an option for patenting, that is, by way of sui generis or a combination of patent and sui generis. Sui generis is different from patenting but serves the same purpose of 'protecting' plant varietie s. Generous though it appears at first glance, it is analogous to a patent in its essential features. The intent is the same as patenting, that is, privatising rights over plant varieties, but where the recording of rights would be simpler and less forma l. Sui generis that India has in mind is UPOV (International Plant Breeders' Rights Convention), a soft patent regime that has its origins in an international convention in 1961 and was supported by 37 countries. UPOV has three versions: the origi nal 1961 version and two more that were formulated in 1978 and 1991. Of these, only the 1991 version remains.

A major criticism of UPOV is that it is more concerned about protecting the interests of the plant breeder than the farmer. In its 1991 version the rights of village communities have been ignored, as also the right of re-use and exchange of seeds, while the breeder has been given the right to seize the harvest of the farmer should he fail to pay royalty for the use of seeds.

Further, given its insistence on stability and uniformity, an ordinary farmer would not be able to get the seeds developed by him registered, while the seed market would be dominated by MNCs engaged in agri-business, such as Monsanto (see separate story) . The MNCs, it is feared, may use genetic information obtained from farmlands without paying any fee to the farmer to develop seeds and register them under UPOV, and then sell them at a high price back to farmers and those who had supplied the genetic in formation. This has revealed another serious dichotomy. The rich countries insist on the recognition of plants and their germplasms that are located mainly in the poor countries as the common heritage of mankind, access to which should be open and free. But at the same time they have no qualms about selling at a high price plant varieties and products they produce (and patent) from those countries.

At a gene bank in Brunswick, Germany.-INP/ LEIB

Biodiversity legislation likely to be passed in India in a year gives MNCs easy access to biological resources for a fee to be paid to the community in the name of 'benefit-sharing'. The idea of benefit-sharing makes no sense in an unequal world with the MNCs on the one side and the communities, not having the faintest idea of the economic price of their resources, on the other. It is more than likely that by paying a negligible amount MNCs would seize the right of 'bio-prospecting', and arrogate to the mselves the rights of these communities. Non-governmental organisation activists such as Vandana Shiva fear that in the long run, this benefit-sharing would force India to pay out a great deal more in the form of royalties to buy those plant varieties no w patented elsewhere than what the country would obtain from such paltry 'compensations'. Although this legislation is purported to conform to the CBD, it does not explicitly recognise indigenous knowledge, nor does it recognise village communities. It o nly talks about 'persons' with whom benefits would have to be shared by the companies. This legislation is likely to come in conflict with the existing laws relating to traditional management practices in areas inhabited by the Scheduled Tribes and with the Constitution (73rd Amendment) relating to local bodies.

Article 27(3)(b) of TRIPS, incorporating the provision for sui generis, will be one of the major items on the agenda at the global review of TRIPS at Seattle in November 1999. If the governments of the poor countries are united in their resolve, t hey can induce the rich countries to accept a wide definition of sui generis that recognises indigenous knowledge and community rights and moves away for the soft patent format of UPOV. If they fail, it is more than likely that even this mild prov ision of sui generis would be taken away and all the plant varieties would be required to be patented.

On the issue of patentability, India seems to have missed a major opportunity on May 11, 1998, the day a nuclear device was exploded at Pokhran. Until that day, the European Parliament had no legislation on patenting of life forms. Although since the Mar rakesh Agreement, European governments were under pressure from biotechnology and genetic engineering firms to move towards a patent regime, the Green and Left parties and a large section of the Social Democrats in various countries took the view that li fe was not patentable. During the first reading in the European Parliament of the draft bill on patent on biotechnology, an amendment was moved by these political forces against bio-piracy. This bill required the applicant for patent rights to disclose f ully the source of its genetic material, and also to declare that such material had been taken out of its country of origin. Had this amendment been passed, it would have been possible for India to bring forward a corresponding legislation that would hav e effectively prevented the poaching of biological resources. More important, Europe would have become a powerful ally of India on this issue and it would have been possible to bring pressure on the U.S. and Japan in Seattle to incorporate such provision s in their respective laws.

WHEN this writer, along with Indira Jaisingh, Senior Advocate in the Supreme Court, went to Brussels at the invitation of some NGOs, and met several members of the European Parliament, their impression was that a strong intervention from the poor countri es, led preferably jointly by India and Pakistan, could tilt the balance in favour of this amendment on bio-piracy, as the difference between the two sides was not big; it was a matter of just 30 votes. The author arranged to send urgent fax messages to the Ministers concerned, with the help of the Indian Ambassador, urging immediate and strong intervention as time was running out. When he returned to India on May 9, the Ministers concerned confirmed that they had received the messages and were in agree ment with the author, but during the intervening 10 crucial days nothing concrete had taken place. Action taken by the Ministries was too late to have any effect on the deliberations at the European Parliament on May 11, the day the biotechnology bill, w ithout any safeguards against bio-piracy, was adopted. Rather than make common cause with Pakistan on basmati, the government's preoccupation at that time was with Pokhran-II.

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