An evening in a small Indian village or a tribal hamlet. On the village 'choupal', the village elders are sitting with a guest. The guest happens to be a 'gora- sahib'. He is actually a visiting scientist from US or Western Europe. He is visiting this region to study the local flora and is discussing the medicinal use of certain local plants with the village 'Vaidyaji 'or the village 'ojha', who have been dispensing Ayurvedic Medicines or Herbal Medicines as a part of family tradition of several generations. They are a repository of the communities traditional know-how of local medicinal herbs. After enjoying the hospitality of the innocent villagers for one or two weeks, and after giving a liberal 'bakhshish', the 'sahib' departs with a collection of plants and plant products. He returns to his lab and tries to discover a new molecule or combination of molecules from the recently collected plants,which have medicinal value. This story has been repeated again and again in all third world countries.
What has been described here is termed as Bioprospecting. Later the giant pharmaceutical company for whom the scientist was working takes a patent on those molecules and more often he obtains a patent on the plant variety itself. No mention is made of the third world community which has been using the plant resource as medicine for thousands of years. While collecting the plant material, the scientist did not inform the indigenous community about the intention to extract the molecule of medicinal importance from the plant material. In technical slang we can say that "informed consent " of the concerned community was not taken. After patenting there is no sharing of profit with the indigenous community or the country of origin. Now it is no more an act of Bio-prospecting. Now we can term it as Bio-Piracy; a day light robbery of a natural resource of a third world country by a giant MNC from a developed country.
Bioprospecting is the discovery of new useful biological material or biological mechanisms, typically in developing countries. In Bioprospecting traditional knowledge of the third world country may or may not be used (in practice it is always used, although claims to the contrary are often made). The country of origin may or may not be compensated for such discovery(iv)
Therefore, Bio-Piracy is Bioprospecting which is done -
---with the help of indigenous knowledge and without informed consent,
---for commercial gain,
---without permission from the country of origin and
---without giving any compensation to the country of origin(iv)
Due to the act of Bio-piracy the indigenous community suffers from a double set back. On the one hand they do not receive any compensation for their traditional knowledge of a plant resource that they had conserved for thousands of years. On the other hand due to the commercial value of the plant material, a medicinal plant which was a free commodity for the community is now unaffordable to the very people who discovered its virtues. Still worse, in most cases the pharmaceutical company which has patented the drug in commercial form will prohibit the use or sell of the plant by the very indigenous community which was its original source(vii).
Examples Of Bio-piracy
There are hundreds and hundreds of examples of Bio-piracy. I will site a few examples from Africa, India, South America and the Pacific region. The examples may appear to be repetitive, but that should only remind the reader of how repeatedly the MNCs from developed countries have raped the third world countries for their natural resources. Ghanaweb has reported some cases of Bio-piracy from Africa (vii).
1)Iboga plant: this plant has been used in central and west Africa for a long time. In low dose it maintains alertness during hunting. In large dose it acts as a hallucinogen. Recently drug addiction researchers found that a component molecule from Iboga has the effect of ending craving for Heroin and Nicotine. Hence it Can be an effective cure for addiction. Patent has been granted by the US and Europian authorities. No benefit is shared with the country of origin.
2) US patent has been granted to a researcher from Tennessee for four medicinal plants of Ethiopian region. These plants--Milettia ferruginea, Glinus loboides, Ruta chalepensis and Hagenia abyssinica have been used in Ethiopian traditional medicine for hundreds of years. The patent claims plant extracts to be used against various types of cancers, Diabetes, Parkinsonism, TB etc. No benefits shared with country of origin.
3)Hoodia: it is a cactus used by African tribesmen to stave off hunger and thirst on long hunting trips. It is specifically used by Kung Bushmen "San" who live around the Kalhari desert. In 1995 South African Council Of Scientific and Industrial Research (CSIR) patented Hoodia's appetite supressing molecule P57 which is viewed as a potential cure for obesity. In 1997 CSIR licensed it to the British biotech firm Phytopharm. Phytopharm sold the rights to develop and market P57 as a slimming agent and obesity cure to Pfizer for 32million dollars. The "San " people launched a legal action against CSIR and Phytopharm on grounds of Bio-piracy and transgression of Convention On Biodiversity (CBD). After lot of behind the scene arm twisting the "San "were pressurized to enter into a compromise agreement. According to this settlement Pfizer and Phytopharm remain completely burden free. Phytopharm will receive a royalty from Pfizer of which 10% will go to CSIR. A fraction of this 10% will be given to the "San " community. So the "San " end up with a minuscule fraction of the total sale while Pfizer and Phytopharm enjoy the gravy.
Apart from these cases, US patents have been granted for several other plants and plant products. 36 such cases are described in(vii). Closer to home Indian Biodiversity has often been targeted for Bio-piracy by the same evil and unholy alliance (ii).
1) Turmeric : In 1995 two scientists fromUniversity of Mississippi center were awarded US patent on medicinal use of Turmeric. The Indian CSIR challenged the patent on grounds of existing prior art. In 1997 the patent was revoked.
2)Neem: the extract of neem leaves or dried Neem leaves have been traditionally used against pests and fungi which attack food grains and food crops. Oil from seeds has been traditionally used in treatment of cold, flu and skin diseases. US department of agriculture (USDA ) and a US corporation W.R.Grace company were granted a patent from Europian patent office for use of Neem oil for control of fungal infection. In 1995 representatives of Indian farmers and some international NGOs filed legal opposition against the patent on grounds of existing prior art. The Patent was revoked in 2000.
3)Basmati Rice: the MNC RiceTec Inc.had been granted patents by the US patent office in 1997. This patent covered 20 claims covering Rice plants, Rice lines and grains. They had also applied for registration of the trademark " Texmati " to the UK Trade mark registry. Claim 15 to 17 were for grains having characteristics similar to Indian Basmati Rice lines. Evidence from Indian Agricultural research institute , bulletin, records of directorate of Rice research and central food technology research institute were used to challenge the patent. Rice Tec chose to withdraw claim 15 to 17 and claim 4.
However the revocation of patents involves huge cost and time and therefore is not affordable in every case. The above cases are exceptions. They were cited only because they are familiar to all Indians and their traditional use is well known to all of us. The involvement of an official arm of US government (USDA) in the attempted biopiracy speaks volumes about the whole thing. Several other patents have been obtained and have gone unchallenged e.g. patents for molecules from Karela, Black pepper and Phyllanthus amarus, all granted by the US patent office. In many cases the country of origin has lost the revocation cases after spending huge amount of money and effort. The Ayahuasca case is an example of blatant miscarriage of justice where patent revoked earlier was reconfirmed in 2006 by the US patent office (ii).
From South America Ayahuasca, Quinoa, Mimosa tenuifolia and from the pacific islands of Fiji and Vanuatu Kava are some other well known examples of Bio-piracy. US patents have been granted for them and no benefit has been passed to the country of origin.
It appears that the patent authorities of developed countries and especially the US patent authorities seem to be excessively eager to grant patents for biological material from third world countries. According to an article in the New England Journal Of International and Comparitive Law (ix), the American patent laws are framed in such a way that the basis of traditional knowledge is not sufficient to disprove novelty, so that indirectly the balance is tilted against the third world communities..."The newness requirement is difficult to prove for indigenous people because cultural knowledge is passed down from generation to generation. Indigenous people's cultural knowledge may have been invented centuries ago and is thus not considered new". The conclusion which can be drawn from the above is obvious.
The Politics Of Bio-Patents and Bio-Piracy
The so called third world countries have become poor because their wealth was drained out in the last round of colonization. India and south American countries typify the above. Although their wealth was taken from them, these people could survive because they still had a last resource in the form of their Bio-diversity. They had Food plants, Medicinal plants and Timber and fodder yielding plants, which allowed them to meet their needs of health and nutrition. Now through Bio-patents this last resource of the people of third world is being taken over by the old colonial powers in their new avatars as the giant MNCs.
The economic and military power of developed nations and fora like WTO, WIPO andTRIPS further forces the third world countries to tolerate the "LEGAL INJUSTICE " imposed by these fora mutely. This is succinctly described in the article--"Bioprospecting a new western block buster-after the gold rush - the gene rush"(Ref viii). Most third world countries cannot put in place such mechanisms which will protect their Bio-diversity rights. They have meager economic resources and their leadership lacks political commitment. If the leadership shows political commitment then they are subjected to arm twisting by countries lending money to them. These countries put pressure on them to open their frontiers to the megacorps from their country. Another curse for the third world countries is the WTO. The WTO wants to minimize government interference in trade. In other words it favors a complete freedom to the MNCs for their predatory activities (where profit is supreme and to hell with the well being of people). The WTO recently brought about an International Agreement On Intellectual Property Rights. This treaty imposes no requirement for the Bio-prospector to obtain informed consent of local communities or their governments. Moreover they need not share with the country of origin the benefits obtained from commercialization of any biological resource. Despite these controversial aspects the countries which are members of WTO are under great pressure to sign the agreement and are otherwise threatened with trade sanctions.(viii).
The laxness of Europian and US patenting authorities when it comes to protection of Bio-diversity rights of the third world countries, their promptness in granting Biopatents-especially those related to Biodiversity of third world countries, their framing of patent laws in such a manner that it negates the rights of communities having traditional knowledge of plants and plant products,arouses the suspicion of an evil design in the whole process. It almost appears as if the giant multinational companies, seed companies, patenting authorities and departments of government like the USDA all are hand in glove to take over the Biodiversity resources of the third world countries. It appears that the old imperialistic forces are making a new bid at indirect colonialization.
In an interview to motion magazine ( aug. 14 -1998 ) the Indian activist Ms. Vandana Shiva voices the same apprehension. "When Columbus and other adventurers set sail, they set out with pieces of paper that were called "letters patent "which gave them the power to claim as property, the territory they found anywhere in the world that was not ruled by white Christian princes . The contemporary patents on life are a replay of colonialization as it took place 500 years ago." In the same interview she further states " the epidemic of Biopiracy or piracy through patents will have to be renamed as recolonialization- a new colonialization which differs from the old only in this- the old colonialization only took away land, the new colonialization is taking over life itself " (iii).
Bio-Piracy-vis-a-vis India
Biopiracy of Indian traditional knowledge and Indian plants and plant products continues. Some of our traditional knowledge comes from oral tradition. Even when the knowledge is codified it exists in regional languages and the various patent offices in the western hemisphere do not take the trouble to search this information in their eagerness to grant patents to giant MNCs. It is a naked conspiracy of the western powers to subjugate us a second time. It is unfortunate that the Indian political classes largely corrupt and for a few pieces of silver they are prepared to turn a blind eye towards these attempts of the western powers. That is the reason why corporations like "Monsanto" were allowed to enter our markets and the Bt Crops were introduced in our farming. Our politicians do not understand that these are Trojan horses who will ultimately take away our freedom to plant desired seeds in our own farms. It is very sad. An inner voice asks a question repeatedly -"are we destined to be ruled by a foreign power again and again and yet again "?
References :
(i)en.Wikipedia.org/wiki/patent
(ii)www.greens.org/s-r/14/14-21.html.
(iii)www.inmotionmagzine.com/shiva.html.
(iv)commercialization of traditional medicines-Wikipedia
Www.nesl.edu/intljournal/vol9/degree.pdf
(v)http:#www.Bree peace.org/patents and biopiracy
(vi)karasov.c. Who reaps the benefits of Biodiversity.
Environmental health perspectives vol.109.no.12
(vii)www.ghanaweb.com/public_agenda/article.php
(viii)www.seq.ubc.ca/Bioprospecting-a-new-western block buster-after-the-gold-rush-the-gene-rush
(ix)new England journal of international and comparative law
www.nesl.edu/userfiles/file/nejc/vol 9/degeer.pdf
What has been described here is termed as Bioprospecting. Later the giant pharmaceutical company for whom the scientist was working takes a patent on those molecules and more often he obtains a patent on the plant variety itself. No mention is made of the third world community which has been using the plant resource as medicine for thousands of years. While collecting the plant material, the scientist did not inform the indigenous community about the intention to extract the molecule of medicinal importance from the plant material. In technical slang we can say that "informed consent " of the concerned community was not taken. After patenting there is no sharing of profit with the indigenous community or the country of origin. Now it is no more an act of Bio-prospecting. Now we can term it as Bio-Piracy; a day light robbery of a natural resource of a third world country by a giant MNC from a developed country.
Bioprospecting is the discovery of new useful biological material or biological mechanisms, typically in developing countries. In Bioprospecting traditional knowledge of the third world country may or may not be used (in practice it is always used, although claims to the contrary are often made). The country of origin may or may not be compensated for such discovery(iv)
Therefore, Bio-Piracy is Bioprospecting which is done -
---with the help of indigenous knowledge and without informed consent,
---for commercial gain,
---without permission from the country of origin and
---without giving any compensation to the country of origin(iv)
Due to the act of Bio-piracy the indigenous community suffers from a double set back. On the one hand they do not receive any compensation for their traditional knowledge of a plant resource that they had conserved for thousands of years. On the other hand due to the commercial value of the plant material, a medicinal plant which was a free commodity for the community is now unaffordable to the very people who discovered its virtues. Still worse, in most cases the pharmaceutical company which has patented the drug in commercial form will prohibit the use or sell of the plant by the very indigenous community which was its original source(vii).
Examples Of Bio-piracy
There are hundreds and hundreds of examples of Bio-piracy. I will site a few examples from Africa, India, South America and the Pacific region. The examples may appear to be repetitive, but that should only remind the reader of how repeatedly the MNCs from developed countries have raped the third world countries for their natural resources. Ghanaweb has reported some cases of Bio-piracy from Africa (vii).
1)Iboga plant: this plant has been used in central and west Africa for a long time. In low dose it maintains alertness during hunting. In large dose it acts as a hallucinogen. Recently drug addiction researchers found that a component molecule from Iboga has the effect of ending craving for Heroin and Nicotine. Hence it Can be an effective cure for addiction. Patent has been granted by the US and Europian authorities. No benefit is shared with the country of origin.
2) US patent has been granted to a researcher from Tennessee for four medicinal plants of Ethiopian region. These plants--Milettia ferruginea, Glinus loboides, Ruta chalepensis and Hagenia abyssinica have been used in Ethiopian traditional medicine for hundreds of years. The patent claims plant extracts to be used against various types of cancers, Diabetes, Parkinsonism, TB etc. No benefits shared with country of origin.
3)Hoodia: it is a cactus used by African tribesmen to stave off hunger and thirst on long hunting trips. It is specifically used by Kung Bushmen "San" who live around the Kalhari desert. In 1995 South African Council Of Scientific and Industrial Research (CSIR) patented Hoodia's appetite supressing molecule P57 which is viewed as a potential cure for obesity. In 1997 CSIR licensed it to the British biotech firm Phytopharm. Phytopharm sold the rights to develop and market P57 as a slimming agent and obesity cure to Pfizer for 32million dollars. The "San " people launched a legal action against CSIR and Phytopharm on grounds of Bio-piracy and transgression of Convention On Biodiversity (CBD). After lot of behind the scene arm twisting the "San "were pressurized to enter into a compromise agreement. According to this settlement Pfizer and Phytopharm remain completely burden free. Phytopharm will receive a royalty from Pfizer of which 10% will go to CSIR. A fraction of this 10% will be given to the "San " community. So the "San " end up with a minuscule fraction of the total sale while Pfizer and Phytopharm enjoy the gravy.
Apart from these cases, US patents have been granted for several other plants and plant products. 36 such cases are described in(vii). Closer to home Indian Biodiversity has often been targeted for Bio-piracy by the same evil and unholy alliance (ii).
1) Turmeric : In 1995 two scientists fromUniversity of Mississippi center were awarded US patent on medicinal use of Turmeric. The Indian CSIR challenged the patent on grounds of existing prior art. In 1997 the patent was revoked.
2)Neem: the extract of neem leaves or dried Neem leaves have been traditionally used against pests and fungi which attack food grains and food crops. Oil from seeds has been traditionally used in treatment of cold, flu and skin diseases. US department of agriculture (USDA ) and a US corporation W.R.Grace company were granted a patent from Europian patent office for use of Neem oil for control of fungal infection. In 1995 representatives of Indian farmers and some international NGOs filed legal opposition against the patent on grounds of existing prior art. The Patent was revoked in 2000.
3)Basmati Rice: the MNC RiceTec Inc.had been granted patents by the US patent office in 1997. This patent covered 20 claims covering Rice plants, Rice lines and grains. They had also applied for registration of the trademark " Texmati " to the UK Trade mark registry. Claim 15 to 17 were for grains having characteristics similar to Indian Basmati Rice lines. Evidence from Indian Agricultural research institute , bulletin, records of directorate of Rice research and central food technology research institute were used to challenge the patent. Rice Tec chose to withdraw claim 15 to 17 and claim 4.
However the revocation of patents involves huge cost and time and therefore is not affordable in every case. The above cases are exceptions. They were cited only because they are familiar to all Indians and their traditional use is well known to all of us. The involvement of an official arm of US government (USDA) in the attempted biopiracy speaks volumes about the whole thing. Several other patents have been obtained and have gone unchallenged e.g. patents for molecules from Karela, Black pepper and Phyllanthus amarus, all granted by the US patent office. In many cases the country of origin has lost the revocation cases after spending huge amount of money and effort. The Ayahuasca case is an example of blatant miscarriage of justice where patent revoked earlier was reconfirmed in 2006 by the US patent office (ii).
From South America Ayahuasca, Quinoa, Mimosa tenuifolia and from the pacific islands of Fiji and Vanuatu Kava are some other well known examples of Bio-piracy. US patents have been granted for them and no benefit has been passed to the country of origin.
It appears that the patent authorities of developed countries and especially the US patent authorities seem to be excessively eager to grant patents for biological material from third world countries. According to an article in the New England Journal Of International and Comparitive Law (ix), the American patent laws are framed in such a way that the basis of traditional knowledge is not sufficient to disprove novelty, so that indirectly the balance is tilted against the third world communities..."The newness requirement is difficult to prove for indigenous people because cultural knowledge is passed down from generation to generation. Indigenous people's cultural knowledge may have been invented centuries ago and is thus not considered new". The conclusion which can be drawn from the above is obvious.
The Politics Of Bio-Patents and Bio-Piracy
The so called third world countries have become poor because their wealth was drained out in the last round of colonization. India and south American countries typify the above. Although their wealth was taken from them, these people could survive because they still had a last resource in the form of their Bio-diversity. They had Food plants, Medicinal plants and Timber and fodder yielding plants, which allowed them to meet their needs of health and nutrition. Now through Bio-patents this last resource of the people of third world is being taken over by the old colonial powers in their new avatars as the giant MNCs.
The economic and military power of developed nations and fora like WTO, WIPO andTRIPS further forces the third world countries to tolerate the "LEGAL INJUSTICE " imposed by these fora mutely. This is succinctly described in the article--"Bioprospecting a new western block buster-after the gold rush - the gene rush"(Ref viii). Most third world countries cannot put in place such mechanisms which will protect their Bio-diversity rights. They have meager economic resources and their leadership lacks political commitment. If the leadership shows political commitment then they are subjected to arm twisting by countries lending money to them. These countries put pressure on them to open their frontiers to the megacorps from their country. Another curse for the third world countries is the WTO. The WTO wants to minimize government interference in trade. In other words it favors a complete freedom to the MNCs for their predatory activities (where profit is supreme and to hell with the well being of people). The WTO recently brought about an International Agreement On Intellectual Property Rights. This treaty imposes no requirement for the Bio-prospector to obtain informed consent of local communities or their governments. Moreover they need not share with the country of origin the benefits obtained from commercialization of any biological resource. Despite these controversial aspects the countries which are members of WTO are under great pressure to sign the agreement and are otherwise threatened with trade sanctions.(viii).
The laxness of Europian and US patenting authorities when it comes to protection of Bio-diversity rights of the third world countries, their promptness in granting Biopatents-especially those related to Biodiversity of third world countries, their framing of patent laws in such a manner that it negates the rights of communities having traditional knowledge of plants and plant products,arouses the suspicion of an evil design in the whole process. It almost appears as if the giant multinational companies, seed companies, patenting authorities and departments of government like the USDA all are hand in glove to take over the Biodiversity resources of the third world countries. It appears that the old imperialistic forces are making a new bid at indirect colonialization.
In an interview to motion magazine ( aug. 14 -1998 ) the Indian activist Ms. Vandana Shiva voices the same apprehension. "When Columbus and other adventurers set sail, they set out with pieces of paper that were called "letters patent "which gave them the power to claim as property, the territory they found anywhere in the world that was not ruled by white Christian princes . The contemporary patents on life are a replay of colonialization as it took place 500 years ago." In the same interview she further states " the epidemic of Biopiracy or piracy through patents will have to be renamed as recolonialization- a new colonialization which differs from the old only in this- the old colonialization only took away land, the new colonialization is taking over life itself " (iii).
Bio-Piracy-vis-a-vis India
Biopiracy of Indian traditional knowledge and Indian plants and plant products continues. Some of our traditional knowledge comes from oral tradition. Even when the knowledge is codified it exists in regional languages and the various patent offices in the western hemisphere do not take the trouble to search this information in their eagerness to grant patents to giant MNCs. It is a naked conspiracy of the western powers to subjugate us a second time. It is unfortunate that the Indian political classes largely corrupt and for a few pieces of silver they are prepared to turn a blind eye towards these attempts of the western powers. That is the reason why corporations like "Monsanto" were allowed to enter our markets and the Bt Crops were introduced in our farming. Our politicians do not understand that these are Trojan horses who will ultimately take away our freedom to plant desired seeds in our own farms. It is very sad. An inner voice asks a question repeatedly -"are we destined to be ruled by a foreign power again and again and yet again "?
References :
(i)en.Wikipedia.org/wiki/patent
(ii)www.greens.org/s-r/14/14-21.html.
(iii)www.inmotionmagzine.com/shiva.html.
(iv)commercialization of traditional medicines-Wikipedia
Www.nesl.edu/intljournal/vol9/degree.pdf
(v)http:#www.Bree peace.org/patents and biopiracy
(vi)karasov.c. Who reaps the benefits of Biodiversity.
Environmental health perspectives vol.109.no.12
(vii)www.ghanaweb.com/public_agenda/article.php
(viii)www.seq.ubc.ca/Bioprospecting-a-new-western block buster-after-the-gold-rush-the-gene-rush
(ix)new England journal of international and comparative law
www.nesl.edu/userfiles/file/nejc/vol 9/degeer.pdf
