November 16, 2007
The Real Issues the Government is Avoiding
By Vandana Shiva
The epidemic of biopiracy is an assault on our living heritage of biodiversity and cumulative innovation embodied in the traditional knowledge of agriculture and medicine. In the long run, it determines livelihoods and economic sovereignty because what is commonly available becomes an ?intellectual property? of a company for which royalty must be paid.
Photo : www.ecobooks.com
It is the governments duty to protect the resources and heritage of the country and prevent its usurpation by foreign interests and commercial corporations. The governments affidavit is in effect arguing that the government will allow the theft of our heritage and the public good that belongs to the Indian people.
The moment a patent is taken on plants and seeds derived from Indian biological resources, biopiracy have occurred. Challenging and stopping such biopiracy is the duty of government. The governments repeated failure to legally challenge biopiracy has forced the petitioner to take up such challenges on behalf of the Indian people, and to protect the public interest and the national interest.
Biopiracy refers to the use of intellectual property systems to legitimize the exclusive ownership and control over biological resource and biological products and processes that have been used over centuries in non-industrialized cultures. Patent claims over biodiversity and indigenous knowledge that are based on the innovation, creativity and genius of the people of the Third World are acts of ?biopiracy?. Since a ?patent? is given for invention, a biopiracy patent denies the innovation embodied in indigenous knowledge. The rush to grant patents and reward invention has led corporations and governments in the industrialized world to ignore the centuries of cumulative, collective innovation of generations of rural communities.
A patent is an exclusive right to make, sell and distribute the patented product. Patents on biodiversity imply that corporations who own patents get exclusive rights to the production and distribution of seeds, livestock and medicine. This establishes monopolies on food and health, makes it illegal for farmers to save and exchange seed, and prevents decentralized, pluralistic economies for the production of food and medicine. It also encourages ?Biopiracy? or theft of our indigenous knowledge.
The new IPR laws embodied in the TRIPs agreement of WTO have unleashed an epidemic of the piracy of nature's creativity and millennia of indigenous innovation. RFSTE/ Navdanya started the campaign against biopiracy with the Neem Campaign in 1994 and mobilized 1,00,000 signatures against neem patents and filed a legal opposition against the USDA and WR Grace patent on the fungicidal properties of neem (no. 436257 B1) in the European Patent Office (EPO) at Munich, Germany. Along with RFSTE, the International Federation of Organic Agriculture Movements (IFOAM) of Germany and Ms. Magda Alvoet, former Green Member of the European Parliament were party to the challenge. The patent on Neem was revoked in May 2000 and it was reconfirmed on 8th March 2005 when the EPO revoked in entirety the controversial patent, and adjudged that there was "no inventive step" involved in the fungicide patent, thus confirming the ?prior art? of the use of Neem.
In 1998, Navdanya started a campaign against Basmati biopiracy (Patent No. 5663484) of a US company RiceTec. On Aug 14th 2001 Navdanya achieved another victory against biopiracy and patent on life when the United States Patent and Trademark Office (USPTO) revoked a large section of the patent on Indian Basmati rice by the US corporations RiceTec Inc. These included (i) the generic title of the RiceTec patent No. 5663484, which earlier referred to Basmati rice lines; (ii) the sweeping and false claims of RiceTec having `invented?, traits of rice seeds and plants including plant height, grain length, aroma which are characteristics found in our traditional Basmati varieties and (iii) claims to general methods of breeding which was also piracy of traditional breeding done by farmers and our scientists (of the 20 original claims only three narrow ones survived).
The next major victory against biopiracy for Navdanya came in October 2004 when the European Patent Office in Munich revoked Monsanto?s patent on the Indian variety of wheat ?Nap Hal?. This was the third consecutive victory on the IPR front after Neem and Basmati, making it the third consecutive victory. This was made possible under the Campaign against Patent on Life as well as against Biopiracy respectively. MONSANTO, the biggest seed corporation, was assigned a patent (EP 0445929 B1) on wheat on 21 May 2003 by the European Patent Office in Munich under the simple title ?plants?. On January 27th 2004 Research Foundation for Science Technology and Ecology (RFSTE) along with Greenpeace and Bharat Krishak Samaj (BKS) filed a petition at the European Patent Office (EPO), Munich, challenging the patent rights given to Monsanto on Indian landrace of wheat, Nap Hal. The patent was revoked in October 2004 and it once again established the fact that the patents on biodiversity, indigenous knowledge and resources are based on biopiracy and there is an urgent need to ban all patents on life and living organisms including biodiversity, genes and cell lines.
Through citizen actions, we have won three-biopiracy battles and have thus contributed to the defense of farmers' rights, indigenous knowledge and biodiversity. Navdanya?s focus on collective, cumulative innovation embodied in indigenous knowledge has created a worldwide movement for the defence of the intellectual rights of communities.
Our challenge in the EPO forced the EPO to recognize that Monsanto?s ?Naphal? patent was a biopiracy patent. Instead of challenging the US patents on ?Naphal?, the government is making excuses to avoid performing its duty. It seems instead to be wanting to help the biopirates in their biopiracy.
The weak excuses the government has given are:
Patent EPO 445929 is not valid in India, and it has no adverse impact, therefore no action is to be taken. (p 1.4) (The petitioner is fully aware that the EU patent is not valid in India. But the EU patent was given for a variety derived from Indian genetic material. Hence, we needed to intervene. The EPO recognized that the patent was based on biopiracy. However, the government is refusing to admit what the EPO has already admitted.
The US Patent No. 5763741 on a variety derived from an Indian variety with claims covering the unique properties of the Indian variety need not be challenged because the patent expires on 18th February 2010. A theft is a theft. Whether the patent expires 2007 or 2010 is not the issue. The main issue is that the properties and traits which Monsanto is claiming as their ?creation? are derived from an Indian variety. This is relevant not just for this variety but for the hundreds of thousands of India?s traditional varieties. Tomorrow Monsanto will claim patents on varieties derived from our salt tolerant varieties, or our flood resistant varieties, or draught resistant varieties.
A broad patent on varietal traits derived from traditional Indian varieties is an act of biopiracy in itself. If such trends continue, and precedence is established that Indian biodiversity is up for grabs we will loose our heritage and economic sovereignty. That is why precedence must be established by challenging biopiracy. The petitioner has done it in the case of the EU patent. The government must do so at least in the case of the US patent.