INDIA-TRADE: PATENT DENIAL BOOSTS FOES OF BIO-PIRACY
OTC 05.09.97 05:14
NEW DELHI, (Sep. 4) IPS - India's successful challenge of a U.S.
patent on the use of turmeric for healing has been a shot in the
arm for Indian activists campaigning to protect indigenous
knowledge from bio-pirates in the first world.
After a complex legal battle, the U.S. Patents and Trademarks
Office ruled on Aug. 14 that a patent for turmeric issued to the
University of Mississippi Medical Center in December 1993 was
invalid because it was not a novel invention.
The patent was contested by India's Council for Scientific and
Industrial Research (CSIR), which combined scientific evidence
with legal savvy to take on the university.
Says an excited R. A. Mashelkar, director-general of the CSIR,
"This success will enhance the confidence of the people and
help remove fears about India's helplessness on preventing
bio-piracy and appropriation of inventions based on traditional
knowledge."
The turmeric patent was just one of the hundreds that the North
has claimed by ignoring indigenous and existing knowledge.
According to Vandana Shiva, a global campaigner for a fair and
honest intellectual property rights system, patents on a wide
variety of other native plants should be revoked.
This can be done if laws are changed to ensure protection against
bio-piracy, activists say, because "chasing every patent
based on traditional knowledge will involve huge expenses and
efforts," according to farm scientist Devinder Sharma.
Under World Trade Organization (WTO) rules, patents are provided
for inventions that qualify for their novelty, non-obviousness,
and utility. The turmeric patent failed to satisfy the criteria
of novelty as turmeric paste has been used to treat wounds and
stomach infections for centuries by Indians.
It is the WTO which has to protect indigenous knowledge, argues
Sharma, who says, "Governments of developing countries
cannot chase and challenge every indigenous knowledge-based
product patent. Patent laws need to be changed and the onus of
proof reversed, and companies should make it clear that the
patent they are seeking is not based on traditional wisdom."
Suman Sahai of the New Delhi-based Gene Campaign would like the
government to use the turmeric case "to press the North to
reform its own laws governing intellectual property rights,
instead of pressuring the South to change its laws."
Vandana Shiva points out that "examples of bio-piracy make
it clear that it is not just Indian patent laws that need to be
changed. American laws also need to be changed to fit into a fair
and honest global intellectual property rights system."
To back up her point she cites the case of Thailand, which
prepared draft legislation allowing Thai healers to register
traditional medicines. It was challenged by the U.S Department of
State, which said, "such a registration system
could...hamper medical research into these compounds."
"If we get a ruling in our favor, the problem of bio-piracy
will be solved. If the WTO does not respond, it will show the
WTO's bias towards the powerful countries," Shiva wrote in
The Hindu newspaper on Aug. 31.
Because two-thirds of the world's plant species -- at least
35,000 of which are estimated to have medicinal value -- are in
the developing countries, Sharma says the North is determined to
keep its business edge over the South.
The U.S. is more obsessed with getting India to comply with the
Trade-Related Intellectual Property Rights (TRIPs) Agreement. The
reason for this, according to Sharma, is to protect the U.S.
biotechnology industry from sharing the benefits with countries
from which they draw the plant and animal genetic resources.
Sharma says that this contravenes the Convention on Biological
Diversity, but the U.S. has made it clear that it has no
intentions of abiding by the regulations.
It is in India's interest, activists say, that the government
revise the 1970 Indian Patent Act to recognize "prior
art" or existing knowledge, which both Indian and U.S. laws
are silent on. This would protect traditional wisdom in
agriculture and horticulture.
"For a start, India must declare its ownership over its own
biological wealth," suggests Sahai. "This must be
followed with intense lobbying for institutionalizing a dispute
redressal mechanism conforming to the Convention on Biological
Diversity."
Vandana Shiva says that the WTO must be approached to press the
U.S. to change its patent laws to ensure protection against
bio-piracy. "The WTO should stop the U.S from attempting to
undo the implementation of the Biodiversity Convention by
countries that have ratified it. The protection of biodiversity
and indigenous knowledge is an international legal obligation and
this commitment needs to be upheld by all multilateral
bodies."
The loopholes in the U.S. patent laws were first exposed by
Mangla Rai, deputy director-general of the Indian Council for
Agricultural Research who is credited with successfully
challenging a cotton patent granted to U.S seed giant Agracetus.
"There is no doubt that (U.S.) patent laws are full of
shortcomings which the transnationals have a penchant for
exploiting," Rai told IPS. "The patent drawn on
turmeric shows just how flawed the U.S law is."
Copyright 1997