BIOPIRACY

BY NEELANJANA PAUL

Introduction:

Developed countries are exploiting developing countries’ genetic resources and indigenous communities’ traditional knowledge in the name of patent on inventions derived from those genetic resource and traditional knowledge.

This leads to the biopiracy where after exploiting the genetic resources and traditional knowledge the patentee does not give any authorization or compensation to the country from where it ha exploited the genetic resource and indigenous communities’ traditional knowledge.

Definition of biopiracy:

It can be defined as (unauthorized or uncompensated) appropriation and commercial exploitation of genetic resources in Developing Countries and/or traditional knowledge of indigenous communities by corporations, mostly from Developed Countries, which seek then “monopoly control”, usually patents, over these resources or inventions derived from these resources.

How does it happens?

An inventor, claims their ‘intellectual property rights’ over a particular product, usually by taking patent that protects their product by allowing the inventor to prevent other people from making, using or selling the product without permission.

The inventor applies for a patent from the governments of the territories over which he wants to assert his rights to prevent others from using his invention, to apply for an international patent that will apply in as many countries as the inventor chooses. This is all perfectly legal.

The problem arises when the product is based on plants whose unique properties are the result of years of breeding by farmers whose investment and work is unacknowledged and unrewarded – stolen, in effect. In these cases the patent holders have failed to obtain the farmer’s permission.

Traditional knowledge:

Traditional knowledge refer to indigenous communities, comprising “knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyle”.

Traditional knowledge is based on experience and is usually passed on through generations.

Criticisms of biopiracy:

Biopiracy is said to be unfair, unethical and a threat to the existence of indigenous cultures.

It is also claimed that indigenous communities are bared from using or exporting their biological resources and traditional knowledge that they have developed. Ultimately traditional knowledge would become extinct.

The companies that take genetic resources from indigenous communities and develop products (e.g. drugs) based on those resources and traditional knowledge, however, could own patents enabling the company to sell the invention back to its “true inventors”.

Examples of biopiracy:

Neem

Turmeric

Basmati rice

Neem:

Botanical name is Azadirachta indica.

Neem act as anti bacterial, anti parasitic, anti fungal, anti protozoal and anti viral thus helps in protection from all the microorganisms, which are always ready to invade in our body causing serious ailments.

The neem tree is indigenous to the Indian subcontinent and parts of South and Southeast Asia.

In 1994 the multinational corporation W.R. Grace and the US Department of Agriculture was granted a patent by the EPO “covering a (special) method for controlling fungi on plants by the aid of a hydrophobic extracted neem oil” that is diluted with a certain percentage of water.

A member of the European Parliament of the Green Party joined by the Research Foundation for Science, Technology, and Natural Resource Policy from India and the International Federation of Organic Agriculture Movement (IFOAM) based in Germany filed an opposition to this patent.

The opponents claimed “that the fungicidal effect of hydrophobic extracts of neem seeds was known and used for centuries on a broad scale in India” both in traditional medicine to fight human skin fungi and in agriculture to protect crops. The opponents also claimed that the invention lacked the two major patentability requirements “novelty” and “inventive step.

The EPO withdrew the patent grant in 2000, finding it lacked novelty.

Turmeric:

Botanical name is Curcuma longa.

In Ayurvedic medicine, turmeric has been used to aid digestion and liver function, relieve arthritis pain, and regulate menstruation. Turmeric has also been applied directly to the skin for eczema and wound healing. Today, turmeric is used for conditions such as heartburn, stomach ulcers, and gallstones. It is also used to reduce inflammation, as well as to prevent and treat cancer.

In 1995 the USPTO granted two Indian nationals at the University of Mississippi for a “method of promoting healing of a wound in a patient” by “administering a wound healing agent consisting of an effective amount of turmeric powder”. The patent applicants recognized the traditional use of turmeric in India but claimed that they had been the first who administered.

This patent was challenged by the Indian Council for Scientific and Industrial Research (“CSIR”) in 1996 on the ground of prior art.

In the re-examination process the CSIR claimed “that turmeric has been used for thousands of years for healing wounds and rashes and therefore its medicinal use was not novel”.

The USPTO upheld these objections and revoked the patent in its entirety in April 1998. It based its decision on the grounds of lacking novelty and obviousness of the invention.

Basmati rice:

India is the second largest producer of rice after China.

In 1993, Basmati rice attracted the highest premium because it is very-long grained rice, with an aroma of its own which enhances the flavors it’s mixed with.

Basmati rice means the "queen of fragrance or the perfumed one." This type of rice has been grown in the foothills of the Himalayas for thousands of years.

In late 1997, an American company RiceTec Inc, was granted a patent by the US patent office to call the aromatic rice grown outside India 'Basmati'. RiceTec Inc, had been trying to enter the international Basmati market with brands like 'Kasmati' and 'Texmati' described as Basmati-type rice with minimal success.

The Council of Scientific and Industrial Research in India [CSIR] challenged the rice patent.

The Indian government, a strong advocate of geographical indications for food products, claimed victory when the USPTO limited the number of claims granted to RiceTec.

RiceTec still has a patent and can still call its rice Basmati.

Conclusion:

Biopiracy may or may not harm biodiversity, but it certainly hurt the chances of sharing in a fair and equitable sharing of the benefits of using natural products.

At the community level, to document the traditional knowledge of plant products has many benefits. This may include traditional consumer protection against false claims about the so-called 'new' products, processes and uses.

Secondly, we need new laws to provide adequate protection in the traditional resource use by people with few resources.

There are international organizations that are working in this direction, such as the World Intellectual Property Organization of the UN.