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Journal of Intellectual Property Rights Vol 5 March 2000 pp 80-86
India and Other Asian Countries Losing on Biodiversity
P KVasudeva
Business School, Panjab University, Chandigarh 160014
Bio-piracy is an epidemic. First, it was the patent on neem and its several uses, then came haldi (turmeric), followed by basmati, karela (bitter gourd), kalajeera (black cumb) seeds, and brinjal. Most of these have been an integral part of traditional system of medicine in India. Paper describes how the recently- passed Geographical Indications Bill will help in protecting the Indian biodiversity [rom piracy. As so far these were not properly documented, papers mentions a few effOlis initiated in this direction in the country, and need for the electronic form of records is stressed. A detailed list of bio-pirated plants are given. Description of the patenting of some Indian herbs is presented. A few suggestions for solving the biD-piracy problems are given.
Most ofthe business organizations have welcomed the passage of the Trademarks, Geographic Indications and Copyrights Bills in the winter session of the Parliament. Out of all the Bills the Geographic Indication of Goods Act, 1999 is the most cruciallegislation that will protectIndian biodiversity from patenting by the foreigners, provided India is able to make an inventory and document its geographic origin products and get them registered und er the Act.
Now that the geographic appellations of the TRIPS Agreement have come into force, it will be able to save the Indian biodiversity from the piracy by other countries. However, it is also essential that Biodiversity and
Plant Varieties Bills are passed to safeguard the biodiversity. India produces innumerable special varieties of grains, fruits, plants, etc. which have enormous potential for exports.
Geographic Indications
Another point that goes in India's favour in the TRIPS Agreement is the clause of 'geographi c indications' . The issue of geographic indications came to the fore last year after an American agricultural firm Ricetec granted a patent named texmati in the US on a variety of rice called basmati. This caused a furore in India and provoked a demand to fight against the American Patents Office
VASUDEVA: INDIA AND OTHER ASIAN COUNTRIES LOSING 81
move. However, the CSIR, which wanted to contest this patent in US, found it difficult to refute the patent, because the geographic indications were not registered in India. Well-known instances are Champagne and Scotch whisky, which cannot be patented by any country, because their geographic origin lies in their respective countries.
Articles 22-24 of the TRIPS Agreement have virtually become globally accepted regime and provide the rules for the protection of geographic indications or preventing its misuse. Apart from basmati rice, India has many goods with specific geographic origin: Darjeeling tea, Bikaneri bhujia, Maneri laddoo, Agra petha, Mathura pedas, Punjabi lassi, sarson sag, makki roti, idly, dosa, many plant names such as Kasuri methi, Nagori asgandh and so on. None of these has the protection of geographic indication because India had no legislation which allowed the registration of geographic indications.
Biodiversity
India has one of the richest biodiversity in the world . It has been recorded that out of 81,000 species of fauna and 47,000 species of flora , 15,000 are unique to India. The Indian subcontinent contains about 25,000 species of vascular plants, out of which 7,500 are used by folk and other traditional systems of medicine. Many plants are common to all the traditional systems. Several are used either alone or in combination with other plants. The current regulation states that if these drugs are prepared in exactly the same way as laid down in ancient literature and if they are preserved as detailed by the texts, such drugs do not require approval of registration. The drug will however be treated as 'new' whenever a different method of preparation is used.
The subcontinent occupies a unique position in the world, capable of cultivating most of the medicinal plants used both in modern as well as traditional systems of medicine. Indian community uses 60 per cent of biodiversity for timber, food, and medicines. The export value of crude drugs from India in the international market has increased 2.76 times between 1985-86 and 1994-95, and now stands at 53.2 million. A systematic survey of all medicinal floras is the need of the hour.
Pharmaceuticals are. among the most lucrative areas for the international bio-piracies. Twenty five per cent of US prescriptions are filled with drugs, which have active ingredients from Indian plants. The sale of these drugs amounted to $4.2 billion in 1980 and $15.5 billion in 1990. in EU, Australia, Canada and the US market value for both prescription and over-the-counter drugs based on Indian plants amount to $ 70 billion. The transnational companies are busy in locating Indian plants and herbs in Himalayas and other tami regions (fertile foothill areas) through their Indian agents.
Inventory and Documentation
The Department of Indian Systems and Homeopathy, Govt of India, has come out with an inventory of 2000 medicinal plants and brought out a series of volumes on identification of medicinal plants. The Department of Biotechnology, Govt of India, has done work in collection, documentation, inventorization and characterization of medicinal plants. A good amount of documentation on India plants is available in the Wealth o/India (Raw Materials Series) and Glossary 0/ Indian Medicinal Plants.
A lot more needs to be done about protecting of country's biodiversity. The industry sources are of the view that the most impor-
82 J INTELLEC PROP RIGHTS, MARCH 2000
tant step required is to computerize the patent offices and to document and publicize the traditional medicinal plants and the knowledge of these plants in the country. Maintaining a record of the traditional knowledge of the country on the Internet and then registering them under the Act would ensure that it could not be patented by anyone as it is knowledge in public domain.
Bio-piracy
Bio-piracy and patenting of indigenous knowledge is a double theft. First, it allows theft of creativity and innovation. Secondly, the exclusive rights established by patents on stolen knowledge and steal economic options of everyday survival based on our indigenous biodiversity and indigenous knowledge. Over a period, the patents can be used to create monopolies and make evelyday product highly priced, says Vandana Shiva Director, Research Foundation for Science Technology and Ecology.
According to a Patent Alert Service, there were eight patents containing the word Ayurveda or Sidha or Unan i filed in the US patent office in 26 March 1998. While all chemicals, pharmaceutical or agriculture patents containing the word herbal numbered 1,173, there were only 66 plant and animal derivative patents contain ing the word India. It is only in the recent times that Indian industry has taken serious interest in filing patents, even then it is filing less than 1,000 patents in India and fewer than 100 in the US as compared to the leading Japanese companies which individually secure more than 1,000 US patents annually.
India will have to be much more serious to fight for the protection of bio-piracy because its indigenous wisdom and wealth is being
taken away. Basmati is one such example, but if timely action is not taken, India may lose a substantial part of its ancestral biodiversity treasure.
The Council of Scientific & Industrial Research (CSIR) had very successfully challenged the patent on wound-healing properties of turmeric in 1997 and the dispute over neem patent is almost upheld in India's favour. If we continue contesting patents in US Court it will be a very expensive proposition, with the cost running into crores of rupees. The worst is that India has no idea as to how much of its natural wealth has been burgled nor has it erected any legal bulwarks to keep the thieves at bay. The following are few details of the Indian bio-piracy:
a) Adarak (Zinger o/ficinale) -The Ayurvedic usage of this product is for the cure of asthma, constipation, cough, stomach- ache, inflammation, respiratory diseases, arthritis, nausea and ear pain. There are four companies that have obtained US patents, two on snoring and one on its anti-inflammatory properties.
b) Angoor (Vitis vini/era) - Its Ayurvedic uses are for anaemia, constipation, general weakness, jaundice, asthma, gout, alcoholism, fever and cough. The US has patented nine of these and at least four of them have been patented on properties systematically studied in Ayurveda.
c) Bhu Amla (Phyllanthus nirurt) - It is used in Ayurveda for the cure of cough, asthma, inflammation, fever, wounds, urinary infection, jaundice, ulcers, and sores. Four companies have patented this product, two by Fox
VASUDEVA: INDIA AND OTHER ASIAN COUNTRIES LOSING 83
Chase Cancer Centre, USA. One of them is for treating jaundice.
d) Haldi (Curcuma longa) - Ayurvedic usage has been for the improvement of complexion, relieving of etching, cure of anaemia and dyspepsia. Six companies have patented this product for similar properties. One of them had patented it for wound healing, which was revoked last year when challenged by CSIR in US patents office.
e) Indian Mustard (Brassica campestris) - The Ayurvedic usage has been for the cure of impetigo, haemorrhage, mental disorder, rheumatism, stiff neck and influenza. There have been 14 companies like Calgene (US) and Rhone-Poulenc (France) patenting this product.
1) KalaJeera (Cumimum cymimum) -The Ayurvedic usage of this product is as appetizer and digestive, and for diarrhoea, vomiting, analgesic and urinary infections. Two patents have received in US by Rajko Medenica of US for its immunity enhancing properties.
g) Karela (Momordica charantia) - The Ayurvedic usages include cure of constipation, worms, urinary infection, vomiting, acidity, arthritis, migrain e, burning sores and psoriasis. Two companies have patented this product, one of them being New York University for the treatment of tumours and HIV infections.
h) Kathal (Artocarpus integrifolia) - The Ayurvedic usage of this fruit has been for inflammation, wound healing, constipation, urticaria, and skin diseases. There have been three US patents of this product. Medical College of Ohio
i)
j)
based on properties known to Ayurveda has patented two properties.
N eem (Azadirachta indica) -Th e ayurvedic uses are for cure of diar-rhoea, fever, inflammation, jaundice, wounds, snakebite and piles. So far, 65 companies have patented neem including American, Japanese and European firms. India has taken up the matter in US Courts.
Sharifa (Annona squamosa) -The Ayurvedic usages of this fruit are for cure of inflammation, constipation, urinary infection, and infertility. Two companies have patented this product. Bayer of Germany and Perdue Research Foundation of USA are using this product for the treatment of infertility.
The other bio-piracies that have come to the notice of the Indian government are:
a) Amaltas (Cassia fistula)-Three patents
b) Arand (ricinus communis)-Seven patents
d) Black Nightshade (Solanum nigrum) -Three patents
e) Brahmi (Centella asiatica)-Five patents
1) Choulai (Amaranthus spinosus) -One patent
g) Gaden Balsam (Impatiens blsamina)-One patent
h) Harad (Terminalia chebula)-One patent
i) Isabgol (Plantago ovata)-Two patents
j) Jangli Arand (Jatropha curcas)Two patents
k) Kali Mirch (Piper nigrum)-One patent
84 J INTELLEC PROP RIGHTS, MARCH 2000
1) Ku mari (Aloe barbadensis)-Three patents
m) Musali (Curculio orchiodes)-Two patents
Source: Research Foundation for Science Technology and Ecology (RFSTE) .
Patenting of Indian Herbs
Bio-piracy is an epidemic. Earlier, neem, haldi, pepper, harad, bahera, amla, mustard, basmati, ginger, castor, jaramla, amaltas, isabgol, and now karela andjamun have been patented under the US IPR systems.
A patent number 5,900,240 was granted recently to Cromak Research Inc based in New Jersey, on edible herbal compositions. It comprised mixtures of at least two Indian herbs selected from a group consisting of Syzygium jambolanum cumini, popularly known asjamun; Momordica charantia (bitter gourd or karela); Solanum melongena (brinjal or egg plant) and Gymaema sylvestre (gurmar) as anti-diabetic agents for their proposed use in reducing sugar. Patents had been granted on 4 May 1999 in th e US on edible herbal composition comprising mixtures of herbs selected from the group consisting of jamun, gurmur, karela and brinjal useful as hypoglycemic agents. The investors include two non-resid e nt Indians, Onkar S. Tomar and Kirpanath Borah, along with their American colleague Peter Glomski. The patenting of these an ti- diabetic plants has again highlighted the problem of bio-piracy of rich Indian herbal wealth.
A patent issued in the US does not affect us dramatically, says Director General, CSIR, Dr R.A Mashelkar. "It does not mean that one cannot use similar mixture in India for anti-diabetic treatment. Yes, it may affectthe possibility of our exporting such a mixture to US," says Mashelkar. India should be
more active in filing the patents. "Since 1994 when the TRIPS came into force , the US in the following four years had granted 1,890 herbal patents. Most of these have been from China. India's contribution has been meagre," says Mashelkar.
Jamun, which belongs to the guava family, originated in India and now naturalized throughout the far east countries, is a fruit tree of considerable economic value, says K V Peter, Director, Indian Institute of Spice Research, Kozhikode. Extracts of its stems, leaves, buds and flowers possess moderate antibiotic activity against Micrococcus pyogenous, and aureus. Experiments conducted at the Central Drug Research Institute, Lucknow, show that oral adminis.tration of dried alcoholic extracts of seeds of jam un to diabetic patients reduces the blood sugar level.
The Government of India is yet to take a decision on contesting patents obtained by US firm for karela, jamun, brinjal and gurmar, because it is still examining and ana lyzing the whole issue. While the fruit, leaves and roots of pitter gourd have lr 'lg been used in India as a folk remedy for diabetes mellitus, the leaves of gurmar are useful in the management of maturity onset diabetes. It is an important ingredient in Ayurvedic formulation for diabetes. Their use in the treatment of diabetes is documented in the authoritative treatises such as Wealth 0/ India, Compendium 0/ Indian Medicinal Plants and the Treatise on Indian Medicinal Plants. The patent document has not mention ed the above findings under the 'prior art: states the Intellectual Property Rights (lPR), a bulletin published by Technology Information Forecasting and Assessment Council (fIFAC) , DST, GovtofIndia.
With 70 per cent of country's population depending on non- allopathic medicines, the
VASUDEVA : INDIA AND OTHER ASIAN COUNTRIES LOSING 85
potential of traditional medication is large. This increases the importance of ensuring that the traditional knowledge base of the country is protected and that the multinational companies are not allowed to patent traditional medicines, says the former Controller General Patents, Designs and Trademarks, K V Swaminathan.
Conclusion
The problem of bio-piracy is a result of western style of IPRsystems, and not the absence of such IPR system in India. Therefore, the implementation of Trade-Related Intellectual Property Rights ([RIPS) Agreement, which is based on the US style of patent regime, must immediately be stopped. Pirac'y is not an aberration in the US patent law. it is intrinsic to it. Article 102 ofthe US Patent Law, which defines 'prior art', does not recognize technologies and methods in use in other countries as 'prior art'. If knowledge is new for the US, it is novel, even if it is a part of an ancient tradition of other culture or cou ntry. This was categorically stated in the Connecticut Patent Law who treated convention , as "bringing the supplY of goods from foreign posts" that is not yet of use among us. Prior art and 'prior use' in other countries were, therefore, systematically ignored in the US laws on monopolies granted on the basis of claims to. invention.
Article 27.2 of TRIPS Agreement offers a way out, i.e. signatories of the Treaty may disallow patents in those cases where prevention of commercial exploitation is necessary in order to protect human, animal or plant life. We need to use our sovereign powers to reject legally anti-farmer and anti- biodiversity technologies. We can always use Articles 7 and 8 of TRIPS to rejec t patent application, which attempts to patent our
indigenous knowledge either directly or indirectly or with trivial modifications.
India has yet to introduce Biodiversity Act, and Protection of Plant Varieties Act. In order to protect our bio-wealth, it should be legislated at the earliest, but definitely before the next review of TRIPS Agreement, which is due in 2000. Ministerial meeting at Seattle in November/December 1999 failed and drew a disssension.
India should highlight at the next WTO Ministerial conference that the TRIPS Agreement is modelled on the American patent system, which encourages piracy. The IPR should also be linked with the Convention on the Biodiversity, which seeks to protect the biodiversity resources of the countries.
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86 J INTELLEC PROP RIGHTS, MARCH 2000
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