Bio-Quarry To The World

But India will have to do far more, in order to fight the increasing bio-piracy of its indigenous wisdom and wealth. For one, basmati rice is just one of hundreds of bio-piracies. And it makes no sense disputing them all. CSIR successfully challenged a patent on haldi’s wound-healing properties last year, but the dispute over neem patents is yet to be settled. For another, contesting a patent in a US court is a very expensive proposition, with the cost running into lakhs of rupees. What’s worse, India has little idea about how much of its natural wealth has been burgled, nor has it erected any legal bulwarks to keep the thieves at bay.

Pharmaceuticals are among the most lucrative areas for the international bio-pirates: 25 per cent of US prescriptions are filled with drugs whose active ingredients are derived from plants. Sales of these plant-based drugs amounted to about $4.5 billion in 1980 and $15.5 in 1990. In Europe, Australia, Canada and the US, the market value for both prescription and over-the-counter drugs based on plants is estimated to be over $70 billion. Transnati-onal companies know where to find the plants: well over 50 per cent of the world’s estimated 250,000 plant species are in tropical rainforests. Only a small fraction of them have been investigated as a source of potential new drugs, and the rapid destruction of tropical forests has hastened corporations’ screening, appropriation and patenting processes.

And India, one of the world’s richest bio-diversity hotspots, is a favourite bio-quarry. It has recorded over 81,000 species of fauna and 47,000 species of flora. Of the latter, about 15,000 are unique to India and 60 per cent of this is used by village communities for timber, food or medicinal purposes.

RFSTE has been digging into patent offices for evidence of bio-piracy and have unearthed many examples: 65 patents on neem, more than a dozen on turmeric and several on other traditional medicinal plants. In 1996, 29 Indian micro-organisms just picked off the soil were patented in the US. Dr K. Haridasan, ethnobotanist at Itanagar’s State Forest Research Institute, says he is often approached by drug firms, many of them multinationals, for samples of medicinal plants.

Does this really bother the Indian government? Granted the proposed Biodiversity Bill, drafted to implement India’s obligations to the Convention on Biological Diversity (CBD), does assert our biological sovereignty, but whether the government is really serious about checking bio-piracy will be known in Parliament’s winter session, when the proposed amendments to the Indian Patents Act 1970 and the Plant Variety Bill will be debated.

Says Sanjay Parekh, who filed the PIL against the basmati patent: "Unlike the bio-diversity law, neither of these drafts have been circulated for discussion. If the two proposed bills fail to recognise and protect our indigenous innovation and knowledge as collective heritage, and allow its patenting as in the case of basmati, neem, turmeric and hundreds of other plants, our laws will protect the bio-pirates. " 

As a signatory to trade-related intellectual property rights (TRIPs), India is under increasing pressure from the US and the EU to amend its patent laws to introduce product patents for drugs and agrichemicals by 2004. In August this year, it lost its dispute with EU over patent protection for these products. It has lost a similar case to the US in January this year. Besides, the WTO decision also obliges India to grant exclusive marketing rights (EMRs).

Explains Vandana Shiva, director of RFSTE: "There are two options before the government. It can either give EMRs now and introduce product patents in 2004. Or, it can amend its patent laws with adequate safeguards by April 1999 and thus avoid the need to grant EMRs." 

Shiva fears that once pharmaceutical/ agrichemical corporations establish market monopolies through EMRs, no amendments of patent laws can dethrone them. Her fears may not be unjustified: some corporations now make both pharmaceuticals and agri-chemicals. Moreover, corporations are merging to form global giants (Sandoz and Ciba merged to form Novartis; Delta and Pine merged with Monsanto) against whom the domestic industry cannot hope to compete. 

"These corporations are already lobbying heavily in Delhi to persuade the industry ministry to get EMRs. That is why their shares jumped with the announcement that India would be changing its patent laws," says Shiva.

BUT do we have any choice? Article 27.2 of TRIPs offers a way out: signatories of the treaty may disallow patents of inventions in those cases where prevention of commercial exploitation is necessary in order to protect human, animal or plant life or health or to avoid serious prejudice to the environment. 

"We need to use our sovereign powers under this article to legally reject anti-farmer, anti-biodiversity technologies like the recent terminator technology (which creates seeds that cannot be harvested by the farmer for a second crop)," says Shiva. But, she adds, "we can use Articles 7 and 8 of TRIPs to reject patent applications which attempt to patent our indigenous knowledge either directly or with trivial modifications that fail the test of non-obviousness." According to Shiva, it matters little whether such patents are assigned to Indian scientists or global corporations, for they ultimately rob indigenous people of their common heritage.

Furthermore, western-trained Indian scientists will never have the capital to commercially exploit their patents, either in India or globally. They will, therefore, sell them to corporations. Patents on indigenous knowledge by Indian scientists thus becomes an indirect route for bio-piracy.

Modern-day bio-piracy is not just the product of new science and corporate greed, but also of a new law. The economic trigger for bio-prospecting was provided by a little-known 1980 US Supreme Court decision, Diamond vs Chakrabarty. Its impact makes this unheralded court decision one of the most important judicial decisions of this century. The case began in 1971 when Indian microbiologist Ananda Mohan Chakrabarty, an employee of General Electric, developed bacteria that could digest oil. That same year, GE applied to the US Patent and Trademark Office (PTO) for a patent on Chakrabarty’s oil-eating bacteria. After several years of review, the PTO rejected the application under the traditional legal doctrine that life forms are not patentable. GE then appealed to the US Supreme Court, which handed down its surprise decision in 1980 by a five-to-four margin. By a margin of one vote, the US Supreme Court had handed over the genetic largesse of the earth to private ownership.