Chadha & Chadha - India
“Charters and patents thus turned Acts of piracy into divine will,” writes Vandana Shiva in her highly acclaimed book Biopiracy: The Plunder of Nature and Knowledge. While researchers and experts have long debated the morality of biopiracy, the concept has largely evolved into a less politically charged word: bioprospecting. However, while biopiracy refers to the practice of commercially exploiting naturally occurring biochemical or genetic resources, “bioprospecting is the process of discovery and commercialisation of new products based on biological resources”. With scientists often compared to “invaders of traditional knowledge”, the question still remains as to whether legitimising an act of encroachment under the pretence of the greater good is justified.
In a highly controversial decision, the US Patent Office in March 1995 granted Patent US5401504A or the healing properties of turmeric (Curcuma longa (Zingiberaceae)) to two Indian scientists who were working with the University of Mississipi Medical Centre. This grant created a huge stir in India and rocked its scientific community, which claimed that it was an act of biopiracy. The Indian Council for Agricultural Research and Council for Scientific and Industrial Research requested a USPTO re-examination and declared that the patent lacked novelty as turmeric rhizomes have been used for medicinal purposes in Indian households for centuries. Based on ancient evidence provided by the Indian authorities, the patent was eventually revoked by the USPTO. This case served as a pioneer in waking up countries to the need to protect traditional knowledge from any form of encroachment.
The neem dispute
In a longstanding fight with the EPO, the Indian government strongly objected to EP 0436257 A1 being granted to the neem plant (Azadirachta indica) over its use as a fungicidal treatment. The government provided extensive documentary evidence in the form of scriptures and manuscripts to prove that the medicinal properties of neem have been known to the indigenous communities of India for more than 2,000 years. Although the patent was eventually revoked by the EPO, it stimulated a bitter transcontinental debate about the ethics of IP and patent rights. Vandana Shiva, in her aforementioned book, summarised the neem dispute as “the free tree is no more free".
The Bt brinjal dispute
Bt brinjal, which was introduced to India on 15 October 2009 as the first-ever genetically modified crop has been a subject of intense scrutiny since then. This variety of brinjal was developed by MAHYCO, partner of US biotech giant Monsanto, using 12 indigenous varieties of the vegetable, which were sourced from various states, including Karnataka. These indigenous varieties were used without approval, which is a violation of the Biodiversity Act of 2002. In response, the National Biodiversity Authority and other relevant stakeholders initiated proceedings against Monsanto for carrying out this research without seeking the permission and the consent of hundreds of thousands of farmers who have cultivated these varieties for generations. With concerns raised over the efficacy, biosafety and nutrition of the said creation, Bt brinjal has been in moratorium since the year 2010. While the fate of this crop remains uncertain, it continues to be grown illegally in several parts of the country.
Traditional Knowledge Digital Library
In an attempt to provide maximum protection of its traditional knowledge, the Indian government launched the Traditional Knowledge Digital Library (TKDL) project in 2001 in collaboration with the Council of Scientific and Industrial Research, Ministry of Science and Technology and the Department of Ayurveda, Yoga and Naturopathy, Unani, Siddha and Homeopathy and the Ministry of Health and Family Welfare of India. The TKDL serves as a database of information on traditional knowledge in India, in languages and a format understandable by patent examiners at international patent offices. The database also facilitates prior art searches by translating prior art that exists only in indigenous South Asian languages. The success of this project can be proven in a report of the Council of Scientific and Industrial Research, which suggested that until 2016, TKDL has been successful in preventing the grant of more than 220 patents related to traditional Indian knowledge. The following patents offices have been granted access to the TKDL for carrying out prior art searches and patent examination:
- EPO (February 2009);
- USPTO (November 2009);
- Indian Patent Office (July 2009);
- German Patent Office (October 2009);
- United Kingdom Intellectual Property Office (February 2010);
- Canadian Intellectual Property Office (September 2010); and
- IP Australia (January 2011).
The Indian scenario
In an attempt to protect the interest of indigenous communities, the Indian Parliament has passed several legislations since the past couple of decades. The National Biodiversity Act, 2002 is aimed at protecting traditional knowledge by regulating use of such information by a foreigner, Indian citizen and body corporate controlled by foreigner/Indian citizen. However, while this act aims to protect indigenous knowledge, it has been subjected to immense criticism based on its inherent shortcomings. One of its major flaws is that it does not give sufficient consideration to conservation and lays undisputed emphasis on preventing profit-sharing from the commercial use of the biological resources. While it is true that the sub-stratum of the act is aimed at preventing biopiracy by developed nations, the biggest goal is to protect biodiversity. Another highly criticised provision mandates that an aggrieved benefit claimer is required to give prior notice of its intention to make a complaint. Otherwise, an individual is required to file a complaint to the National Biodiversity Authority, which will then take necessary action. The absence of locus standi to all citizens is concerning. Other legislations propagating the aforementioned cause include Section 3(p) of the Indian Patent Act 1970, which bars patent protection for inventions involving use of traditional knowledge or any duplication or aggregation of this knowledge. Further, there is protection provided under Protection of Plant Varieties and Farmers Rights Act 2001, Geographical Indication of Goods (Registration and Protection) Act 1999 and Scheduled Tribes and other Traditional Forest Dwellers (Recognition of Forest Rights) Act 2006.
Indira Gandhi stated in one of her most popular speeches: “The idea of a better-ordered world is one in which medical discoveries will be free of patents and there will be no profiteering from life and death.” With the evolution of society, IP rights have formed an integral part in the development of the knowledge economy.
Further, “if they are afraid of revision in the laboratory, truth will never be released except by accident”, a highly potent phrase by Barbara W Tuchman encapsulates the concept of biopiracy, in its present form. With the politicisation of science, indigenous protection has been put on the back burner. The debate around biopiracy is not a new one, yet it continues to remain as prevalent as it was over half a century ago. As the world remains divided in its threshold of morality and ethics, so does the scientific community. While inherent shortcomings in the said agreements can be easily resolved through amendments, the issue of biopiracy will continue to attract a horizon of views, subject to inclination and sensibilities of individuals as well as communities. Lastly, a permanent solution will be achieved when the yawning gap between the developing and the developed countries is closed.