by Dr. Vandana Shiva
16 Nov 99

The TRIPs agreement of the W.T.O. is a globalisation of U.S. styled patent laws which encourage, the patenting of centuries old indigenous knowledge as "novel inventions". A phenomena we call Biopiracy occurs because U.S. Patent Laws and TRIPs fail to take the "prior art" and existing innovations of other countries into account in the granting of patents and do not recognise alternate sui generis systems for the protection of traditional knowledge.

A second major flow with TRIPs, which is also rooted in using U.S. patent as the model law, is the introduction of patents on life forms through Article 27.3 (b).

This Article is supposed to be reviewed during 1999.

In addition, article 71.1 requires that in the year 2000 the implementation be reviewed, and if necessary, the TRIPs agreement be amended in the light of any relevant new developments which might warrant modification or amendment of the Agreement.

When TRIPs was forced on countries during the Uruguay Round, many issues of public concern were totally bypassed and the full ethical, ecological and economic implications of patenting life were not discussed. Third World countries were coerced into accepting that western style IPR systems were "strong" and "advanced". However, public interest groups showed that these systems were strong to establish corporate monopolies globally, but they were weak to protect indigenous knowledge and prevent biopiracy. They were `advanced' means for taking away the resources of the poor, and stealing the knowledge of our grandmothers. But they were primitive when viewed from the perspective of justice, equality and cross-cultural respect.

As a result of sustained public pressure, after the agreement came into force, in 1995, many Third World countries have made their recommendations for changes in Article 27.3 (b) to prevent Biopiracy. India in its discussion paper submitted to the TRIPs Council stated on patenting of life forms,

Clearly there is a case for re-examining the need to grant patents on life forms anywhere in the world. Till such systems are in place, it may advisable to

1. exclude patents on all life forms, if this is not possible then;
2. exclude patents based on traditional/indigenous knowledge and essentially derived patents based on traditional/indigenous knowledge and essentially derived products and processes from such knowledge, or at least;
3. insist on disclosure of the country of origin of the biological source and associated knowledge, and obtain consent of the country providing the resource and knowledge, to ensure equitable sharing of benefits.1"

Bolivia, Columbia, Ecuador, Nicaragua and Peru have made a proposal on the Protection of the Intellectual Property Rights Relating to the Traditional Knowledge of local and indigenous communities.

This paper states,

The group proposed that negotiations be initiated at the Ministerial Conference in Seattle, with the view of establishing a multilateral legal framework that will grant effective protection to the expressions and manifestations of tradition knowledge.

The African group has also called for systems to protect traditional knowledge.

The African Group has proposed that a footnote should be inserted to Article 27.3 (b) stating that any sui generis law for plant variety protection can provide for the protection of the innovations of indigenous and local farming communities in developing countries, consistent with the Convention on Biological Diversity and the International Undertaking on Plant Genetic Resources.

In spite of all of the Africa region, five countries in Central and Latin America and India calling for changes in 27.3(b) on the basis of their right to a review as built into the Agreement, the U.S. and Europe are determined to block the reform of TRIPs and any attempt to stop Biopiracy. In a "Green room" consultation (the undemocratic structure of decision making in W.T.O.) the powerful industrialised countries told Mike Moore, the Director General that they rejected all the proposals for the reform of TRIPs.

The African Group and India have also called for exclusion of life forms from patentability and for W.T.O. to be subordinate to CBD. U.S. and Europe have rejected the developing country proposals related to 27.3 (b) on grounds that W.T.O. cannot be subordinated to other international agreements which confirms the belief of the environment movement that in W.T.O issues of environment are always sacrificed for trade.

Using W.T.O., the rich North is committed to protecting corporate monopoly rights at any cost, even if this means undermining protections for nature and people guaranteed by International Agreements and National Constitutions.

In its submission related to the TRIPs review, the U.S. has stated categorically that it believes that an exception to patentability, authorised by Article 27.3 (b) is unnecessary and therefore, treats plants and animals and non-biological and microbiological processes as patentable subject matter under its law.

The U.S. heralds the beginning of patents on life with the Chakrabarty patent on a genetically engineered microorganism as "extremely fortuitous". In granting the first patent on life in 1980, the U.S. Supreme Court interpreted life as "manufacture" and "constitution of matter". This started the slide down the slippery slope of patenting seeds, cows, sheep, human cells and micro organisms. The U.S. is proud of having started a perverse trend based on flawed scientific assumptions which ignored the self-organising, dynamic, interactive nature of life forms and defined them as mere "Constitution of matter. As the U.S. paper on the TRIPs review states, the Supreme Court's decision in Diamond, Commissioner of Patents and Trademarks Vs. Chakrabarty spurred the development of a new industry - the biotechnology industry.

The U.S. is, therefore, committed to patents on life in order to defend its Biotech industry. But having opened the flood gate to treating life forms and these modifications as patentable, the U.S. patent office started to grant patents not just to GMOs (genetically modified organisms) but to process and products derived from biodiversity using indigenous knowledge. This is how patents on neem, karela, basmati have been given in the U.S.

Instead of recognising that it is promoting piracy and changing its laws to prevent its practice, the U.S. has rejected all Third World proposals for the recognition and protection of indigenous knowledge.

On the issue of Biopiracy, the U.S. states that the requirement to patent applicants to identify in their application the source of any genetic materials or traditional knowledge used in developing their claim "would be impractical". Recognising and screening indigenous knowledge, should be a necessary element of the test for inventiveness and novelty that is required under any patent system. However, when it comes to traditional knowledge of the Third World, this screening for "prior art" is declared as impractical. Forcing all countries to change their patent laws in spite of protests is considered practical. Imposing an immoral order of patents on life in spite of people in the North and South not accepting it is considered practical. Changing all cultures of the world, and enforcing property rights on seed is considered practical. Collecting royalties from the poor in the Third World for resources and knowledge that came from them in the first place is considered practical. But taking the simple step to change one clause in one law in the U.S. and one clause in TRIPs is considered impractical. This suggests that the U.S. is committed to not taking any steps to prevent Biopiracy, and is in fact committed to promoting it.

TRIPs and U.S. style patent laws annihilate rights of Third World communities by not having any system of recognition and protection of indigenous knowledge and not having any system for preventing patents claiming piracy of such knowledge as an invention.

The U.S. proposes that the Third World should solve the problem of Biopiracy by granting access to the companies that are patenting indigenous knowledge.

"The most effective means for exercising these rights would appear to be to require that parties seeking access to genetic resources or traditional knowledge enter into a contract with the sovereign entity that grants that access.3"

Instead of correcting the deficiencies in TRIPs and U.S. style patent laws, the U.S. would like to maintain the structures and laws that promote biopiracy at the global level. Instead of changing the laws at the International level and in the U.S. which allow pirated knowledge to be treated as an "invention", the U.S. wants the Third World to write contracts with the "Biopirates".

This is like the police asking a person whose house has been burgled to make a deal with the burglar instead of arresting the burglar. It is equivalent to a woman who has been raped being told she should have taken steps to not let herself to be raped, instead of putting a rapist behind bars as a criminal.

Biopiracy is intellectual and cultural rape. It is the slavery of the new millennium. And there is only way to stop it - to make it illegal in international law by changing TRIPs. Anything short of stopping Biopiracy through reform of TRIPs is participation in a crime against nature and the poor.

Citizens of the world will not let this crime continue. That is why in Seattle we will launch a Global Campaign Against Biopiracy to ensure that TRIPs and U.S. laws are changed, and Third World countries can take steps to protect their rich biological and intellectual heritage.

1. Discussion Paper by India on Review of Art 27.3 (b).
2. Bolivia, Columbia, Ecuador, Nicaragua, Peru Proposal on Protection of the Intellectual Property Knowledge of local and indigenous communities.
3. Views of the U.S. submitted to W.T.O.