TRADE-INDIA: Biopiracy-friendly Laws Worry Neem Battle Winner

By Ranjit Devraj Reprint | | Print |

Ranjit Devraj

NEW DELHI, May 25 2000 (IPS) - A prominent Indian intellectual rights campaigner who got revoked European patents to a trans-national corporation (TNC) for pesticides from the ‘neem’ tree, says the battle against biopiracy must begin at home.

Vandana Shiva, leader of the “Neem Campaign” which challenged the patents at the Munich-based European Patenting Office, says the case has shown not only the “friendliness” of the United States but also that of the Indian government to TNCs.

The cancelled neem patents were jointly held by the European drug TNC W.R. Grace and the U.S. Agricultural Department.

“We wanted to show collusion between Western governments and TNCs in biopiracy but the attitude of the Indian government was not particularly encouraging,” she told IPS.

According to Shiva, the Indian government is putting in place a legal structure that would make things easier for rich nation biopirates eyeing this country’s immense biodiversity wealth.

She has challenged in India’s Supreme Court, a law enacted by Indian Parliament last year that allows TNCs exclusive marketing rights (EMRs) for traditional medicines that are used by 70 percent of people in this country.

Shiva is also campaigning against a proposed biodiversity law that, she claims, actually approves of biopiracy by trying to feebly regulate it.

“The implication of the (Biodiversity) Bill is that the global seed industry can freely take seeds, claim patents or breeder’s rights by tinkering with them and not be regulated,” she explains.

According to Shiva, the law on EMRs makes it possible for foreign commercial interests to bypass the provisions of the proposed law that was tabled in parliament this year.

The Biodiversity Bill actually seeks to restrict the access of Indians to their own natural resources, even as foreigners are not subject to such regulation, she points out.

Shiva finds it “ironic” that the Indian government is doing this when European patent authorities have legally recognised biopiracy by cancelling the neem patents.

The Indian biodiversity law would even negate the global biodiversity treaty — the Convention on Biological Diversity (CBD) — that aims to check biopiracy.

Shiva’s neem victory follows an unsuccessful bid by the Indian government a few years ago to challenge other patents on neem- based formulations in the United States.

So far, the Indian government’s only success in the battle against biopiracy has been in getting cancelled the patents granted by the U.S. Patent Office on the healing properties of turmeric — known to Indians for centuries and documented in the country’s ancient texts.

But the biopiracy list is long and includes patents for anti- diabetic formulations derived from ‘karela’ (bitter gourd) taken out by New York University. The vegetable’s use for this purpose is mentioned in the centuries-old Indian traditional medicine system of Ayurveda.

Another well known example is the patent granted to U.S. agribusiness company Ricetec on ‘basmati’, a fragrant rice variety that grows only in pockets in the Himalayan foothills in India and Pakistan.

Neem Campaign has got revoked patents on the fungicidal and pesticidal properties of neem. But more than 80 other patents on the medicinal and other properties of the tree, called nature’s pharmacy, remain to be challenged.

A slow-growing tree, the neem is native to South Asia but has been transplanted to Africa and even to Saudi Arabia which has one of the world’s largest plantations on the Arafat plains.

In contesting the patents, Shiva’s organisation cited ancient texts to show that neem products have been used in India as medicinal and agricultural aids for centuries. However, the European Patent Office was more impressed by modern Indian research.

The panel heard Ajay Phadke, an Indian biotechnologist who has tested neem-based formulations on farms in India’s western state of Maharashtra. Phadke told the panel that he had recorded the pesticidal properties of neem while working with French drug giant Rhone Poulenc two decades ago.

Phadke produced letters from Maharashtra farmers showing that

his neem formulae were in use well before W.R. Grace took out the patents.

According to Shiva, the Munich verdict is significant in that the principle of non-inventiveness and lack of originality will now guide rulings on future legal challenges to biopiracy.

“W.R. Grace would be extremely foolish to ever use any of its remaining patents in infringement cases,” she says.

India’s stakes are especially high because it is the world’s richest biodiversity depository with over 81,000 species of fauna and 47,000 species of flora. At least 15,000 plant varieties have been recorded as unique to this country.