Corporate hijack of traditional knowledge: India a case study

Dudhwa Live International Journal of Environment & Agriculture

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https://www.dudhwalive.com/2020/01/corporate-hijack-of-traditional.html

Dudhwa LiveISSN: 2395 5791 (Online)

Vol.10, no. 01, January 2020 

Naveen Chandra Joshi* and Gopal Singh RawatWildlife Institute of India, Box-18, Chandrabani, Dehradun, Uttarakhand-248006, India
*E-mail:  dr.naveenchandrajoshi@gmail.com

Article History- Received 17th September 2019, Revised 18th November  2019, Accepted 15th December 2019, Published 18th  January 2020

Key Words- Traditional Knowledge, Corporate, India

Corresponding Author- Naveen Chandra Joshi Ph.D

drnaveenchandrajoshi@gmail.com

Abstract

Making money by patenting the traditional knowledge of others has become a major business all over the world and intellectuals are now concerned about the rights of the indigenous people. Traditional knowledge can be vital for local or indigenous communities as it is mostly associated with their livelihood and it can also be an excellent tool for developing countries like India, as they can export novel products having commercial acceptability, which are based on indigenous techniques and methods. India is a country which has various caste, creed and culture and due to such diversity in tradition and believes it is also rich in various kinds of traditional knowledge systems. The United Nations is today working to make traditional knowledge less susceptible to illegal use and ensure benefit sharing with the communities that possess such knowledge. However, there are various discriminations in the laws and policies of various countries which help the bio-pirates to hijack such knowledge, which causes financial and cultural loss to the indigenous community and the country. A brief review of such policies and laws is discussed.

Introduction

Demand for organic food products, traditional crops and natural system of medicine has increased several folds in recent years due to ill-effects of the fast food and modern systems of medicine^1-3. Organic farming (without the use of pesticides) has been endorsed in many South-East Asian countries, as there is a considerable section of health-conscious people⁴. This situation has underlined the importance of Traditional knowledge (TK) on bio-resources across the globe. According to Convention on Biological Diversity (CBD) the TK includes the knowledge, skills, innovations and practices which are developed, sustained and passed on from generation to generation by and large orally within a community which may be in the form of folklore, songs, proverbs, stories, cultural values, rituals, beliefs, community laws, agricultural practices, and local language, often forming part of its cultural or spiritual identity⁵. Recently some countries like Malaysia and Indonesia have passed laws against bio-piracy.

Bio-piracy is the unauthorized acquisition and commercially appropriation and exploitation of naturally occurring bio-resources, including genetic material by obtaining patents that restrict its future use by others without paying fair compensation to the real owner of the knowledge. The victims of bio-piracy are largely indigenous marginalized people from less affluent countries across the globe. With the recent threats like climate change and population explosion, the cases of bio-piracy have also increased and are likely to continue shortly all over the globe. The developing countries having rich traditional knowledge systems related to healthcare and agro-biodiversity and having lower research infrastructure are the major victims to bio-piracy.

India: A victim of Bio-piracy

The concept of bio-piracy is neither new to the world nor to India. India is well known throughout the world for its “Ayurvedic” system of healthcare and a place of old civilizations involved in agriculture. Over the last few decades, repeated attempts were made to patent Indian traditional knowledge. India fought many cases in the international courts and still many are pending to get back what originally belongs to the country. The first case of bio-piracy in India which bought it to limelight was when in 1994, European Patent Office (EPO) granted a patent (EPO Patent No. 436257) for an effective method for controlling fungi on plants by the help of hydrophobic extracted Neem (Azadirachta indica) oil to the W.R. Grace Company (USA) and the US Department of Agriculture. This patent was valid in all the 34 member states of EPO. It took nearly six years to reject the patent when in 2000 this patent was revoked by the EPO. A later similar case occurred in 1995 when two Non-Resident Indians viz. Suman K. Das and Hari Har P. Cohly at the University of Mississippi Medical Centre were granted a US patent (US Patent No. 5401504) on the use of turmeric for healing of wounds. The patent was revoked only after a re-examination case which was filed with the US PTO by the Council of Scientific & Industrial Research (CSIR), India, New Delhi challenging the patent on the grounds of existing of the prior art and after hard efforts, the US PTO upheld the CSIR objections and revoked the patent in 1997. 

It is reported that there were more than 100 Indian plants awaiting grant at the US patent office¹ and patents have already granted for the use of Amla (Phyllanthus emblica), Jar Amla (Phyllanthus amarus), Anar (Punica granatum), Salai (Boswellia serrata), Lauki (Lagenaria siceraria), Gulmehndi (Impatiens balsamina), Kabuli Chana (Cicer arietinum), Bagbherenda (Jatropha curcas), Karela (Momordica charantia), Rangoon-ki-bel (Quisqualis indica), Erand (Ricinus communis), Vilayeti Sheesham (Dalbergia sissoo), Arvi (Colocasia esculenta) etc., all commonly used in Indian households^6-7. These patents need to be vacated as granting patents on such common commodities may start a new era where we have to pay a royalty for whatever we eat.

There are many other cases where our traditional knowledge has been patented by some external individuals or organization such as Basmati rice (Oryza sativaindica), composition of Jamun (Syzygium cumini), Karela (Momordica charantia), Methi (Trigonella foenum-graecum) and Baingan (Solanum melongena) for cure of diabetes, composition of Methi as a medicinal stimulant to bring down blood glucose levels or compositions comprising of Kala Jeera or Kalonji (Nigella sativa) for increasing immune functions and also in the treatment of diabetes, hepatitis, and asthma. One unusual patent rights granted by the US Patent Office to the Nebraska-based company, ConAgra Inc. for the “method for producing an Atta flour”. This may cause severe trouble to the wheat and flour exporter countries, including India. One more exciting and well-known case is of 2003, the EPO in Munich granted a patent (EP 445929) to Monsanto Invest N.V., better known as the world's largest trader in genetically engineered plants. The so-called invention as claimed by Monsanto covered wheat demonstrating a unique baking quality, later it was proved by Greenpeace that it was not a genetically engineered invention as claimed by Monsanto but a wheat variety bred used by Indian farmers for improving its baking quality. If this patent had not been revoked in 2004, it would have set a new and dangerous trend. These few cases made us learn a lesson that we need to be much more proactive to protect our traditional knowledge. If companies like Monsanto start taking patents on food items, food insecurity can be a common global issue in the coming years.

There are a total of 14 patents on Mustard in the USA which has excellent medicinal use as it is diuretic and assists digestion. Similarly, there are 07 patents in the USA on Caster which has laxative and insecticidal property and 04 on Amaltas (Cassia fistula) which work as a mild laxative. Not only India but bio-piracy threatened several other developing and some developed countries which are affected by knowledge pirates. Texas-based, RiceTech Inc. in the USA has a patent on Jasmine Rice which Thailand claims to be its traditional crop. National Institute of Health (NIH) the national medical research agency of American and New York University (NYU), USA have recently got patent for four botanical, traditional medicine remedies and their use in HIV and tumour therapy. NIH may now try to sell the rights to its patents so they can be commercialized. Karela (Momordica charantia) fruit and seed which have an anti-infection, anti-tumour agent, immune-modulatory properties and used for anti-HIV therapy. China claims it to be their traditional medicine. NIH and NYU have several other patents on their non-native plant species such as Gelonium multiflorum and Dianthus caryophyllus which is traditionally used as medicine for cuts and wound in North America, Trichosanthes kirilowii from China used for therapy of ovarian cancer and trophoblastic tumor and against viral infection and Qing Hao (Artemisia) again from China and used as anti-malarial drug. However, bio-piracy might happen within a country such as the case of Quassia amara surfaced between the French Institute for Development Research (IRD) and local officials in French Guiana, which was used as an antimalarial remedy. These are a few examples among thousands of such cases.

Several causes such as the recent advances in various fields such as biotechnology, pharmaceutical and health care industries which have become increasingly interested in natural products as sources of new biochemical, organic compounds for drug, chemical and agro-product development along with the competition among various multinational industries gain most out of none are the roots of bio-piracy. These developments have fuelled a regeneration of interest in TK and its associated genetic resources as a means of advancing for science and technology and of gaining useful insights into the functioning of ecological systems.

Traditional knowledge, Bio-piracy and Laws

The Convention on Biological Diversity (1992)⁸ was the first international agreement to acknowledge the role and contribution of indigenous and local communities in the conservation and sustainable use of biodiversity. Even the UN Declaration on the Rights of Indigenous Peoples⁹ Article 31 clearly states that:

1. Indigenous people have the right to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions, as well as the manifestations of their sciences, technologies and cultures, including human and genetic resources, seeds, medicines, knowledge of the properties of fauna and flora, oral traditions, literatures, designs, sports and traditional games and visual and performing arts. They also have the right to maintain, control, protect and develop their intellectual property over such cultural heritage, traditional knowledge, and traditional cultural expressions.

2. In conjunction with indigenous peoples, States shall take effective measures to recognize and protect the exercise of these rights.

There are several other international laws which directly or indirectly address the right to knowledge, innovation and practices of indigenous people viz. Universal Declaration on Human Rights¹⁰, Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS)¹¹, International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA)¹², UN Declaration on Rights of Indigenous people (2007)⁹, Draft Declaration on Human Rights and Environment (2012)¹³ etc.

Granting Patents on life forms can be a major threat to the biodiversity itself. The Indian Patent Law¹⁴, formed in 1970 (Amendment in 2002 and 2005), Sec. 3(j) states “plants and animals in whole or any part thereof other than micro-organisms but including seeds, varieties and species and essentially biological processes for production or propagation of plants and animals" prohibits the patenting of plants and animals or biological processes but the US grants patents on plants. India allows patents only for the protection of new plant varieties under Protection of Plant Variety and Farmers Right Act (PPVFRA)¹⁵ enacted in 2001. Until 2002, microorganisms were not patentable subject in India. Under the Patents (Amendment) Act (2002)¹⁴, microorganisms may now be awarded patents. Traditional Indian formulations are also facing a serious threat, as now US cosmetics companies have started reintroducing products such as Neem, Charcoal, Clove Oil, Camphor, Black Pepper and Spearmint etc. in toothpaste; Sandal, Neem, Aloe Vera, etc. in soaps; Ritha, Bhringraj, Brahmi, Shikakai etc. in hair care products; turmeric, cucumber, sandalwood, milk etc. in beauty products as their invention in India which is going to be a threat to the Indian cosmetic industries.

Sub-section 3(p) was inserted into the Patents Act, 1970 by the Patents (Amendment) Act, 2002 to protect the traditional knowledge and biodiversity of India. A provision was added to section 10(4) whereby every patent specification is required to show the source and geographic origin of any biological material used in the invention. Further, section 25 provides that a patent may be opposed because:

(1) the invention claimed does not disclose or wrongly mentions the source or the geographical origin of the biological material used for the ‘invention’; or

(2) the invention has been anticipated by ‘knowledge’ – oral or otherwise – available within any local or indigenous community in India or elsewhere.

The term "invention" also needs to be defined internationally. According to US Patent law, an inventor is a person who contributes to the claims of a patentable invention, whereas, it has no clear-cut definition in EPO. According to section 2 (1) (j) of the Indian Patents Act¹⁴, 1970, "invention means a new product or process involving an inventive step and capable of industrial application" thus any application for a patent on TK does not qualify as an invention. Further, under section 3(e) of the Patents Act "a substance obtained by a mere admixture resulting only in the aggregation of the properties of the components thereof or process for producing such substances" is not an invention and hence, not patentable. The Indian Patents Act also has a very unique provision related to TK under Section 3 (p), wherein "an invention which, in effect, is traditional knowledge or which is an aggregation or duplication of known properties of traditionally known component or components" is not an invention and hence, not patentable, within the meaning of the Patents Act. Furthermore, Sections 3 (b), (c), (d), (f), (h) and (i) are of significance to the patent applications related to TK and/or biological material.

Many forms of systems of medicine such as Ayurveda, Siddha, Unani and Homoeopathy, and therapies such as Yoga and Naturopathy are practised for thousands of years in India. The origin of Ayurveda is considered to be of prehistoric times and has been a part of our traditional knowledge system. There are around 100 million forest dwellers in India, mostly belonging to tribal communities and they have a great TK which they have gathered over the centuries by their experience from the natural environment around their community. The provisions of the Biological Diversity Act (2002)¹⁶ and Forest Rights Act (2006)¹⁷ offer a shield for traditional knowledge of tribals. It has explicit provisions for about and protecting the knowledge of the local communities related to biodiversity and however, declaring that the intellectual property rights, in such knowledge belongs primarily to members of the community collectively.

The Biological Diversity Act (2002) has provisions by which the forest dwellers and communities conserving biological resources as well as holders of knowledge and information about the use of biological resources will secure and share benefits from these IPRs. Biological Diversity Act exclusively provides (Section 6 of the Act) that if any person applies for a patent within or outside India for an invention based on any research or information on a biological resource obtained from India, such a person will have to get approval from the National Biodiversity Authority (NBA) for making such an application. This approval may be delayed up to the time of sealing of the patent. At the time of granting of the approval, the NBA may impose benefit sharing fee or royalty or both or impose conditions including the sharing of financial benefits arising out of the commercial use of such rights.

Although Indian law has adequate provisions for the protection of TK and biological resources, there have been several cases of bio-piracy of traditional knowledge from India in the recent past. Recently another patent (No. EP 1962578 B1) granted to Monsanto Invest N.V. in 2011 on "Closterovirus resistant melon plants" has been revoked in January 2016 by the EPO due to the objections raised by the NBA¹⁸. The patent claims the melon variety to be resistant to a virus named cucurbit yellow stunting disorder virus (CYSDV). The patent was later revoked because it was found that it lacked sufficient disclosure of the invention. The case can judge the severity of bio-piracy that in less than two years in Europe alone, India was successful in bringing about the cancellation or withdrawal of 36 applications to the patents on traditional Indian medicinal formulations.

India is one of the most biologically and culturally rich countries of the world. While this richness is due to the country’s geographic diversity and complexity, its cultural diversity has played an equally important role in preserving and developing biodiversity. It is one among the twelve mega-diversity countries, in its 2.4% of world’s land areas it supports 7-8% of the world's biodiversity and 16% of the major forest types, varying from alpine pastures rich in Medicinal and Aromatic Plants (MAPs) in the Himalaya to montane, subtropical, tropical and mangrove forests in the coastal areas. Besides being such a diverse and traditionally vibrant country, the status of getting patent by Indians in India is not to the satisfactory level. According to the Annual reports of Office of Controller General of Patents, Designs and Trademarks¹⁹ (CGPDTM), only 9,847 patents were granted during 2016-17 whereas; it was 16,061 during 2008-2009 (Fig. 01). As per the Worldwide patent application filing trends report²⁰ (2015), Worldwide filings of patent applications have grown at a significant rate during the last decade, i.e. from 12,601,187 applications during 1995-2005 to 15,206,132 applications in the successive period between 2005-2015. According to this report, the Patent offices of China and the USA receive the most significant number of patent applications followed by North-East Asian countries, namely Japan and the Republic of Korea and large industrialized European States. The use of the patent system internationally has increased noticeably in recent years by non-residents in few countries such as China, India, Korea and the Russian Federation. However, the use of the patent system remains highly meticulous with only five patent office’s (viz. China, Japan, EPO, Republic of Korea and USA) accounting for a major percentage of the total applications.

Fig. 01: Comparative trends of IPRs granted by CGPDTM during 1993-2017

Other measures to stop Bio-piracy based on Indian TK

Traditional Knowledge Digital Library (TKDL) established in 2001 is a good step towards the protection of TK in India. Government of India has taken a very effective step by setting up an Inter-Ministerial Access Policy Committee (IMAPC) for TKDL to decide on accessing the data stored in the library. TKDL is designed as a tool to assist patent examiners of major intellectual property offices in the world in carrying out prior art searches. Biodiversity is very crucial for the pharmaceutical industry because natural resources are critical for the discovery and development of new drugs²¹. TKDL targets Indian Systems of Medicine and healing wisdom which needs to stretch to several other fields related to the traditional knowledge of India such as agriculture and practices, ecological knowledge, natural resource management, land and soil use management, animal husbandry techniques, architecture, bio-resource management practices, culture, customs and folklore.

The Department of Science and Technology has started an initiative to document the TK related to the Himalayan region of India, which is an appreciable step towards the conservation of TK. The Vigyan Prasar, which is an autonomous body under the Department of Science and Technology, Government of India, is also working along with nine other institutes viz. JNU, Delhi; Wildlife Institute of India, Dehradun; IHBT, Palampur; Kashmir University, Srinagar; GBPIHED, Almora; CAZARI, Jodhpur; Doon University, Dehradun; North-Eastern Hill University, Shillong and IIM, Ahmedabad in development of a database under "Network programme on convergence of Traditional Knowledge Systems (TKS) for sustainable development in the Indian Himalayan region ".

India has emerged as a spearhead of developing countries on the global platform for bringing the protection of traditional knowledge at the centre stage of the International Intellectual Property System. These efforts have resulted in setting up of an Inter-Governmental Committee (IGC) on Intellectual Property, Traditional Knowledge, Genetic Resources and Folklore by WIPO and the Doha Ministerial Declaration (2001), wherein it was decided to set up a relationship between the TRIPS Agreement and the UN Convention on Biological Diversity (CBD) on the issue of Access to Genetic Resources and the fair and equitable sharing of the benefits arising from their use. Further, India has been able to conclude TKDL Access (Non-Disclosure) Agreements with several international patent offices including United States Patent and Trademark Office (USPTO), European Patent Office (EPO), Japan Patent Office (JPO) etc. Consequently, many patent applications on India's traditional knowledge have either been cancelled or withdrawn or claims have been amended in several international patent offices.

The question arises here that, why we wake up and say that, this is our traditional knowledge and we have practised it since centuries, only when somebody else in the world gets a patent on any medicine or formulation or subject matter? Why our health-related agencies are not active as NIH and our universities not interested in getting a patent of their innovations? These questions are still to be answered. The filing of such patents should be a wake-up call for Indian agencies and workers to not only go for documentation of our traditional knowledge but also to immediately identify the areas of traditional knowledge which are likely to fall as easy prey to piracy in such fast-growing industrial economy.

Conclusion

The matter of Bio-piracy has become a global problem and a severe threat to the rights of indigenous people and it has become a matter of debate for all the international patent offices and various other TK related organizations such as World Intellectual Property Rights Organization (WIPO) and the Union for the Protection of New Varieties of Plants (UPOV). It is high time to decide where to set the "Laxmanrekha" (line of limit) for granting a patent. All patent offices around the world should be meticulous while granting a patent and they should exclude patents on seeds and plants in general. Patents should not be granted to such applications which do not comply with Convention on Biological Diversity (CBD) obligations on prior informed consent (PIC), based on mutually agreed terms, fair and equitable benefit-sharing, and disclosure of origin. Patent law in India also needs a broader perspective to be protected from being plagiarised by such global giants who are stealing the age-old Indian traditional knowledge. The traditional knowledge of the indigenous communities all over the world needs to be documented and protected. Bio-piracy not only hurt economically but also threatened the cultural heritage and beliefs of the indigenous communities who are the real knowledge holders. A uniform code of conduct and universal patent laws around the world should be formulated so that the rights of the indigenous people could be conserved and India's mission of "Sarve Bhavantu Sukhinah, Sarve Santu Nir-Aamayaah; Sarve Bhadrani Pashyantu, Maa Kashchid-Dukha-Bhag-Bhavet" (may all become happy, may all be free from illness; may all see what is auspicious, may no one suffer) could be achieved.

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