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.