Author: Sonu Jain
Publication: The Indian Express
Date: August 26, 2001
Introduction: Basmati or Texmati,
patents or common wealth. where does India stand in the global fight for
Intellectual Property Rights? Sonu Jain separates the grain from the chaff
Each time someone claims a bit
of India as their own - and in these times of patent wars, we're fighting
claims to about 40 products all over the world - the country goes into
a tailspin. Anger, confusion, desperation and determination to Fight It
Out (one more time) do urgent rounds of government offices, agricultural
bodies and NGOs. Perhaps rightly so, since basmati, neem and haldi have
never been too far from an Indian's life, and the idea that Someone Else
may acquire the right to own, trade and market it, is more than a bit jolting.
When patents were recently granted
to three strains of rice developed by Texas -based firm Ricetec, Parliament
was paralysed for a day over the issue. Fear permeated: had India 'lost'
the case, which would mean that we could no longer sell basmati abroad?
It was only after repeated official statements clarifying that Ricetec
managed to uphold claims only to three strains, and would not be calling
their rice basmati, but Texmati or Jasmati" that a bit of cheer was restored.
While the dust hazing this round
of the battle over basmati has settled, the larger issue of Intellectual
Property Rights, or IPRs, continues to lurk. IPRs cover not just patents,
but also trademarks and copyrights, so in a world increasingly committed
to freer trade, India has to guard itself on all these fronts.
Advances in biotechnology have ensured
that even though traditional agricultural products such as neem and turmeric
cannot be patented (a patent, to be granted, has to fulfill the requirements
of novelty, non-obviousness and utility), new, genetically modified versions
for instance, a strain of neem with higher pest resistance can be patented.
At present, more than 50 per cent of the 40,000 patents granted by the
US Trade and Patents Office (USTPO) have traditional Indian plant resources!
Though India signed the Trade Related
Intellectual Property Rights (TRIPS) agreement in 1995, which commits a
country to listing products/inventions it wants IPRs to, so that profits
from international trade accrue to it, we're lagging behind. A comprehensive
inventory of India's traditional wealth, whether it's the Alphonso mango,
Kolhapuri chappals or Kanjeevaram saris, is yet to be documented.
There's hope yet. India is now trying
to protect its IPRs through legislation within the country, but experts
warn it isn't enough. "We need an umbrella legislation which will cover
the entire landscape of traditional knowledge," says eminent patent lawyer
Pravin Anand.
Informal groups, however, have been
acting as patent watchdogs. In 1995, a basmati development fund was set
up to keep a worldwide watch for new trademark applications for basmati
rice or its deceptive variations. The agency has identified a number of
attempted registrations, of which 15 have been effectively challenged.
The Turmeric Patents Case
India woke up late but won against
the attempt by two US based Indians to patent turmeric, a success Story
it repeated with neem. In 1995, Suman K Das and Hari Har P Cohly were granted
a US patent on 'Use of Turmeric in Wound Healing'. The patent claimed that
the administration of an effective amount of turmeric locally and orally
to enhance the wound healing process, was a novel finding. The Centre for
Science and Industrial Research (CSIR) located 32 references, some of them
more than 100 years old, which showed that this finding was well known
in India prior to the patent being feted. The CSIR then filed a formal
request for re-examination of the patent at USPTO in October 1996. In March
1997, US PTO rejected all six claims to the patent made by the University
to which the duo was attached. The University decided not to pursue the
case and transferred the rights to the inventors, who filed a response.
They pleaded that turmeric powder and paste had different physical properties.
That November, the USPTO examiner rejected all the claims on the ground
that they were 'anticipated' and 'obvious'. This was the first time that
a patent based on traditional knowledge of a developing country was challenged
successfully. The other interesting thing about the turmeric case was that
despite loud protests against 'bio-piracy' and 'theft' of India's bio-
diversity by 'foreign nationals', the two patentees, Das and Cohly, are
Indians. The re-examination at USTPO was also done by an Indian officer.
In May 2000, the patent granted
to W R Grace Company and the US department of Agriculture on neem by the
European patents office was quashed on similar grounds.
The Bottlenecks
The neem, haldi and basmati cases
raise an important question: how can scientists in the US file for patents
on agricultural products with minor innovations which are traditionally
Indian?
The problem lies in the fact that
the IPR system, under the World Trade Organisation (WTO), is designed for
inventions which are 'formal', such as those carried out in universities
and laboratories, or as part of industrial R&D. As of now, the WTO
does not recognise technology innovations by farmers, artisans or grassroot
innovators, which happen in an informal setup. These form a large part
of India's traditional knowledge.
Additionally, the IPR system is
oriented around the concept of private ownership and industrial innovation.
It is at odds with indigenous cultures which emphasise collective creation
and ownership of knowledge.
The Way Ahead
India has developed a multi-pronged
approach to tackle IPR disputes.
Geographical Indications Bill
Under this, a product will be defined
by a geographical area where it is traditionally found; champagne, for
example, is exclusively wine made in France's Champagne district.
If the Bill becomes an Act, it will
also evolve product standards, provide cataloguing and classification and
enforce discipline. However the catch is that the WTO does not recongnise
geographical indications for products other than wines and spirit. Though
India has put in a proposal to include other products like Kanjeevaram
silk, Alphonso mango and Darjeeling tea under this, the WTO is yet to respond
to it.
"Once this legislation is passed,
we can state that basmati is from a particular geographical area and another
country cannot patent it," explains Anil Swarup, Chairman, Agriculture
Processed Food Export Development Authority.
Traders too have a responsibility
to undertake. In Florida, traders got together to give their oranges a
geographical identity, and in the process, created a brand -Florida oranges.
"Our traders have to enforce discipline within the country first be fore
they fight in the international arena. Why is it that basmati rice is available
for anything between Rs 15 a kg to Rs 80 a Kg?" questions R S Seshadri,
director of the Gurgaon-based firm United Riceland.
Plant Varieties Bill
This will enable farmers or plant
breeders to register their own innovations and traditional knowledge, so
they cannot be patented elsewhere.
Traditional Knowledge Digital Library
A task force consisting of US, Japan,
EU, China and India has been set up on India's initiative. The inclusion
of the Digital Library in the intellectual property regime will enhance
the quality of patent examination, and the problem of granting patents
based on traditional knowledge will stand resolved.
It has taken India five years to
draft these Bills. Though these efforts have their share of critics, at
least legislation will offer some protection for our traditional property,
to begin with. The next battle is to convince the WTO about restructuring
TRIPS to address the peculiarity of countries like India which have enormous
traditional common wealth. But getting its own house in order has to be
India's priority.
