TEXTS
Biopiracy: Need to Change Western IPR Systems
By Vandana Shiva
The patents on the anti-diabetic properties of ‘karela’, ‘jamun’ and
brinjal highlight the problem of biopiracy - the patenting of
indigenous biodiversity-related knowledge. U. S. Patent No. 5,900,240
was granted 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. 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, even if it is part of an ancient tradition
of other cultures and countries. “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”.
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. Since
TRIPs is based on the assumption that the U.S. style IPR 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.
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.
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, 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. Our survival itself is at stake.
This article has been abridged from 
http://www.hinduonline.com
Vandana
Shiva is a scientist and campaigner, and director of the Research
Foundation for Science, Technology and Ecology in New Delhi. Book
publications include “Biopiracy – The Plunder of Nature and Knowledge”
(South End Press 1997).
http://www.vshiva.net
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