[Mon, 9 Aug 1999]
THE HINDU, Wednesday, July 28, 1999
Biopiracy: need to change Western IPR systems
By Vandana Shiva
The patents on the anti-diabetic properties of 'karela', 'jamun', brinjal once again highlight the problem of biopiracy the patenting of indigenous biodiversity-related knowledge.
U.S. Patent No. 5,900,240 was granted recently to Cromak Research Inc., based in New Jersey. The assignees are two non-resident Indians, Onkar S. Tomer and Kripanath Borah, and their colleague, Peter Gloniski.
The use of 'karela', 'jamun' and brinjal for control of diabetes is common knowledge and everyday practice in India. Their use in the treatment of diabetes is documented in authoritative treatises such as the "Wealth of India", the "Compendium of Indian Medicinal Plants" and the "Treatise on Indian Medicinal Plants".
This indigenous knowledge and use consists of "prior art". No patent should be given where prior art exists, since patents are supposed to be granted only for new inventions on the basis of novelty and non- obviousness. These criteria establish inventiveness, and patents are exclusive rights granted for inventions.
The claim to the use of 'karela' or 'jamun' for anti-diabetic treatment as an invention is false since such use has been known and documented widely in India.
Biopiracy and patenting of indigenous knowledge is a double theft because first it allows theft of creativity and innovation, and secondly, the exclusive rights established by patents on stolen knowledge and steal economic options of everyday survival on the basis of our indigenous biodiversity and indigenous knowledge. Overtime, the patents can be used to create monopolies and make everyday products highly priced.
If there were only one or two cases of such false claims to invention on the basis of biopiracy, they could be called an error.
However, biopiracy is an epidemic. 'Neem', 'haldi', pepper, 'harar', 'bahera', 'amla', mustard, basmati, ginger, castor, 'jaramla', 'amaltas' and now 'karela' and 'jamun'.....
The problem is not, as was made out to be in the case of turmeric, an error made by a patent clerk. The problem is deep and systemic. And it calls for a systemic change, not a case by case challenge.
If a patent system which is supposed to reward inventiveness and creativity systematically rewards piracy, if a patent system fails to honestly apply criteria of novelty and non-obviousness in the granting of patents related to indigenous knowledge then the system is flawed, and it needs to be changed. It cannot be the basis of granting patents or establishing exclusive marketing rights.
The problem of biopiracy is a result of Western style IPR systems, not the absence of such IPR systems in India. Therefore, the implementation of TRIPs, which is based on the U.S. style patent regimes, should be immediately stopped and its review started.
The promotion of piracy is not an aberration in the U.S. patent law. It is intrinsic to it. The U.S. laws were originally designed to pirate or borrow industrial innovations from England. Patents originally functioned as import franchises or import monopolies. Patents were given for salt manufacturers, for operating steamboats even though these were not invented in the U.S.
Later, the recognition and stimulation of inventiveness was added as an objective, and the criteria of novelty, non- obviousness and utility were developed as a test for inventiveness. However, the earlier objectives of creating U.S. monopolies based on free import of knowledge from other countries have survived and the U.S. continues to import knowledge which it then converts to ``intellectual property''.
Article 102 of the U.S. Patent Law, which defines prior art, does not recognise technologies and methods in use in other countries as prior art. If knowledge is new for the U.S., it is novel, event if it is part of an ancient tradition of other cultures and countries. This was categorically stated in the Connecticut Patent Law which treated invention as ``bringing in the supply of goods from foreign ports'' that is not yet of use among us.
'Prior art' and 'Prior use' in other countries were, therefore, systematically ignored in the U.S. laws on monopolies granted on the basis of claims to invention. The same assumption of ignorance as invention is enshrined in the U.S. Patent Act of 1952. Section 102 of the Act treats as a `prior art' use in the U.S. and publications in foreign countries. Use in foreign countries is not recognised as 'prior art'.
Section 102 of the U.S. law which defines 'prior art' reads as follows:
35 USC 102: Conditions of patentability:Novelty and loss of right to patent. A person shall be entitled to a patent unless:
A. The invention was known or used by others in this country or patented or described in a publication in this or a foreign country before the invention thereof by the applicant for patent.
or
B. The invention was patented or described in a trade publication in this or a foreign country or in public use or on sale in this country more than one year prior to the date of the application for patent in the United States.
Use in a foreign country therefore does not constitute 'prior art' in U.S. patent law.
Since patents are granted for new inventions, denial or non- recognition of `prior art' elsewhere allows patents to be granted for existing knowledge and use in other countries. This is the basis of biopiracy or knowledge of Indian knowledge systems, and indigenous uses of biological resources being patented.
The U.S. style patent laws can only pirate indigenous knowledge. They cannot recognise or protect it.
The survival of an anachronistic Art. 102 thus enables the U.S. to pirate knowledge freely from other countries, patent it, and then fiercely protect this stolen knowledge as "intellectual property". Knowledge flows freely into the U.S. but is prevented from flowing freely out of the U.S.
If biopiracy has to stop, then the U.S. patent laws must change, and Article 102 must be redrafted to recognise prior art of other countries. This is especially important given that the U.S. patent laws have been globalised through the TRIPs agreement of the WTO.
In 1999, Article 27.3 (b) of the TRIPs agreement is supposed to come up for review. This is the article that most directly impacts indigenous knowledge, since it relates to living resources and biodiversity. In 2000 A.D. countries can also call for an amendment of TRIPs as a whole.
Since TRIPs is based on the assumption that the U.S.-style IPR [intellectual property rights] systems are "strong" and should be implemented worldwide, and since in reality the U.S. system is inherently flawed in dealing with indigenous knowledge and is ``weak'' in the context of biopiracy, the review and amendment of TRIPs should begin with an examination of the deficiencies and weakness of Western style intellectual property rights systems. A globalised IPR regime which denies the knowledge and innovations of the Third World, which allows such innovations to be treated as inventions in the U.S., which legalises monopolistic exclusive rights by granting of patents based on everyday, common place indigenous knowledge is a regime which needs overhaul and amendment.
Instead of being pressured, as India has been, to implement a perverse IPR system, through TRIPs, India should lead a campaign in the WTO for review and amendment of the system. Meantime, India and other Third World countries should freeze the implementation of TRIPs. While TRIPs implementation is frozen for starting a process of review, we should make domestic laws which protect our indigenous knowledge as the common property of the people of India, and as a national heritage. The implementation of the Convention on Biological Diversity (CBD), enables us to do this. Since the CBD is also an international treaty, protecting indigenous knowledge via a Biodiversity Act does not violate our international obligations. In fact, removing the inconsistencies between TRIPs and CBD should be important part of the international campaign for the review and amendment of TRIPs.
Amending TRIPs and U.S. patent laws is the challenge we must take up. The problem is not our IPR systems but the Western style IPR regimes which systematically enable piracy of indigenous knowledge and practices through patents.
The review of TRIPs should be used to start amending these deficient systems.
Some commentators have suggested that biopiracy happens because our knowledge is not documented. That is far from true. Indigenous knowledge in India has been systematically documented, and this in fact has made piracy easier. And even the folk knowledge orally held by local communities deserves to be recognised as collective, cumulative innovation. The ignorance of such knowledge in the U.S. should not be allowed to treat piracy as invention.
Piracy of indigenous knowledge will continue till patent laws directly address this issue, exclude, patents on indigenous knowledge and trivial modifications of it, and create sui generis systems for the protection of collective, cumulative innovation.
The protection of diverse knowledge systems requires a diversity of IPR systems, including systems which do not reduce knowledge and innovation to private property for monopolistic profits. Systems of common property in knowledge need to be evolved for preserving the integrity of indigenous knowledge systems on the basis of which our every day survival is based.
Since neither TRIPs, nor the U.S. patent law have scope for recognising knowledge as a "commons", or recognising the collective, cumulative innovation embodied in indigenous knowledge systems, if indigenous knowledge has to be protected, then TRIPs and U.S. patent laws must change.
Nothing less than an overhaul of Western style IPR systems with their intrinsic weaknesses will stop the epidemic of biopiracy. And if biopiracy is not stopped, the every day survival of ordinary Indians will be threatened, as over time our indigenous knowledge and resources will be used to make patented commodities for global trade. Global corporate profits will grow at the cost of the food rights, health rights and knowledge rights of one billion Indians, two thirds of whom are too poor to meet their needs through the global market place.
India should lose no time in starting the movement for amendment of TRIPs and U.S. patent laws. Our survival itself is at stake.