IPRs, COLLECTIVE RIGHTS AND BIODIVERSITY
by Dr.Vandana Shiva
1. WTO Ruling Against India
The WTO has recently given an interim
ruling against India in a TRIPs dispute initiated by the US Typical
of the secrecy of WTO dispute settlement processes, the ruling
is not available either to the public or to government officials.
It will most probably be leaked from Washington.
According to India's patent laws (1970)
only process patents were allowed for medicines to bring down
prices of medicines by increasing innovation and competitiveness
among pharmaceutical firms. The US brought a case against India
for lack of product patent protection for pharmaceuticals. According
to WTO/TRIPs, India has a transition period upto 2004 to introduce
product patents for pharmaceuticals.
A ruling on the adequacy or inadequaty
of IPR systems is unfair on two counts. Firstly, it is denying
India its full entitlement of 10 years to introduce product patents.
Secondly, it is protecting the piracy of Indias indigenous medical
knowledge by US Corporations and Scientists.
2. Biopiracy
Patents for neem, haldi, karela, amla,
jaramla.... The biopiracy list keeps growing (Table I) gives the
list of US patents on Indian medicinal plants and knowledge. Biopiracy
is the false claim to invention by western/northern corporations
and scientists. It is the institutionalised theft by the rich
from the poor.
The sharing and exchange get converted
to piracy when individuals, organisations or corporations who
freely receive biodiversity from indigenous communities, and knowledge
convert the freely received gifts into private property through
IPR claims. This blocks the continuity of By free exchange thus
leading to an enclosure of the commons. Biopiracy refers to the
process through which the rights of indigenous cultures to these
resources and knowledge are erased and replaced by monopoly rights
for those who have exploited indigenous knowledge and biodiversity.
Biopiracy impoverishes us in three ways:
1. Intellectual Poverty.
The usurpation of indigenous innovation
by western corporations robs us of our intellectual contributions
and worth, creating intellectual poverty.
2. Resource Poverty
Patents based on biopiracy divert biological resources away from local communities to global markets creating scarcity and resource poverty, because of biodiversity erosion or because prices increase, taking the
resource beyond peoples access. The prices of neem and turmeric have already shot up in India.
3. Market Exclusion
The emerging markets for eco-friendly products should rightfully bring benefit to the original innovators -- the communities in India. Biopiracy allows the market control to shift to the pirates, who then exclude
others from market access through the
exclusion built into intellectual property rights.
Thus even though India is rich in biodiversity
and has a rich biodiversity related intellectual heritage, biopiracy
directs this wealth away from India and denies us our rights to
use our resources and knowledge, for our needs and our economic
benefits.
What are the Forces Promoting Biopiracy?
Biopiracy is taking place for three major
reasons.
1. The Columbus Discovery Syndrome
The most fundamental cause of biopiracy is the colonial syndrome of Columbus discovery. Just as Europeans claimed that Columbus discovered America, and the Europeans could therefore take it away from
the original inhabitants, the old colonial
mentality allows the piracy of biodiversity and knowledge from
non-western cultures to be claimed as invention, needing patent
protection.
2. The Emergence of Patents on Life
The emergence of biotechnology has created the imperative for patents on life and living organisms. This patents on life epidemic has in turn fuelled a biopiracy epidemic since patent offices are ill-equipped to
handle either traditional innovation or
the new biotechnologies. A patenting free for all has been created
with no structures or mechanisms to prevent biopiracy.
3. U.S. Patent System: Non-recognition
of Foreign Prior Art
Most of the patent claims based on biopiracy
have been made in the US. While the US IPR laws are touted by
the US as the standard, distortions in the US law encourages biopiracy
and protect the pirates.
Patents are supposed to satisfy three
criteria of:
Novelty
Non-obviousness
Utility
Novelty implies that the innovation must be new. It cannot be part of prior art. or existing knowledge. Non-obviousness implies that someone familiar in the art should not be able to achieve the same step. Most
patents based on indigenous knowledge
appropriation violate the criteria of novelty combined with non-obviousness
because they range from direct piracy to minor tinkering which
involves obvious steps to anyone trained in the techniques and
disciplines involved.
In the US, many distortions in law exist facilitating the patenting process for companies such as those in the pharmaceutical industry. One such distortion is the interpretation of prior art. It permits patents to be
filed on discoveries in the US despite the fact that identical ones may be already existing and in use in other parts of the world. Patent attorney Peter J.Thoma of the Dallas firm of Thompson and Knight explains; If for example, someone in Europe were developing an invention and you independently and without knowledge of its existence in good faith developed your own device that was essentially the same invention, that fact would not prevent you from obtaining a patent in the US. The European invention had been written up in a publication, or had been patented anywhere in the world more than one year before your filing date, that would be considered prior art. So the incentive is to file promptly. Essentially the stuatute of prior art states that paten! ts cannot be filed on discoveries or inventions already existing in the US, but they can be filed on
discoveries or inventions existing outside
of the US (because `prior art of these inventions is not recognised
by the US).
Section 102 of the US Patent Act does not state a general definition of prior art., but a very narrow rule bound method to be used by low level atent examiners for determining which materials will defeat a patent application by violation of the novelty and non-obviousness criteria. Prior foreign activity anticipates a US Patent only when the foreign activity is fixed in a tangible, accessible form such as a published document or
a patent. However, prior foreign knowledge,
use and invention are all excluded from the prior art related
to a US patent application.
Section 102 of the U.S. Patent Act which
allows biopiracy as a norm in the US patent Office. WTO as a global
body and a global IPR policeman needs to ensure that no member
has patent laws that promote biopiracy. India should raise the
issue of the inadequacy of the US Patent Act which allows biopiracy
as a norm in the US Patent Office. WTO as a global body and a
global IPR policeman needs to ensure that no member has patent
laws that promote biopiracy.
4. The Pirates Claim Protection
Quite clearly, it is the US IPR laws that
need changing. However, it is the US which is forcing other countries
to adopt its biased and inadequate IPR regimes as the standard
and is preventing them from adopting laws which protect their
biodiversity and their indigenous knowledge. Besides being a sovereign
right, the protection of biodiversity and indigenous knowledge
is an international obligation made by countries who have ratified
the Biodiversity Convention.
Thailand has prepared a draft legislation
which allows Thai healers to register traditional medicines. On
21, April 1997, the US Department of State sent a letter stating,
Washington believes that such a registration system could constitute
a possible violation of TRIPs and hamper medical research into
these compounds.
The US government has also threatened
the Ecuadorian government with the cancellation of trade preferences
if its national Congress does not ratify a bilateral agreement
on intellectual property rights negotiated between the executive
branches of the two countries. These threats affect 400 products
of export interest to the Ecuadorian economy, and the possible
loss of $80 million worth of income.