Seeds, Biodiversity and IPRs

“India has cleared its stance on the intellectual property rights policy framework well in time for the upcoming US visit of Prime Minister Narendra Modi,” commerce and industry minister Nirmala Sitharaman said.

Read more at:

http://economictimes.indiatimes.com/articleshow/52292270.cms?utm_source=contentofinterest&utm_medium=text&utm_campaign=cppst

But the corporations are not happy — they want more.

“17 US Business groups, including BIO, the Biotechnology lobby group ,and PhRMA have sent a letter to Obama and to Congress on India saying that the IPR policy “falls far short of industry expectations” and that “longstanding challenges” on IP are among the issues that “ensure India remains a challenging place for US companies to do business” they say the Modi’s visit is a great chance to discuss many of these issues that are “limiting India’s own trade engagement and growth”

We would like to inform Bio and Monsanto that people of India do not want their toxic products, their false claims about GMOs , and their attempt to own our biodiversity and seeds. In 1998 we had said “Monsanto, quit India” — Millions of farmers came together to send a clear message that India’s biodiversity belongs in the commons. We continue to say it and act so we are free of GMOs and patents and IPRs on seeds. Now, even the Government has agreed.

http://aftindia.org/wp-content/uploads/2016/05/Business-Community-Letter-to-Congress-on-India.pdf

http://aftindia.org/wp-content/uploads/2016/05/Business-Community-Letter-to-President-Obama-on-India.pdf

Indian policies and laws should be written in India, by Indians, for Indians; not by the US business interests, in US, for the US and US corporations.

While the corporate pressure has been on India since the 1990’s, we have stood firm as a sovereign nation. It would be against India’s national interest and sovereignty to undo our gains in the IPR area through an IPR policy written under US corporate direction.

Corporations Have Written IPR laws to Own Life and collect Royalties

Corporate influence on Patent Law began with the drafting of the Trade Related Intellectual Property Rights (TRIPS) Agreement of the WTO. James Enyart of Monsanto had said that the Intellectual Property Committee (IPC) of the multilateral corporations drafted TRIPs:

“Once created, the first task of the IPC was to repeat the missionary work we did in the US in the early days, this time with the industrial associations of Europe and Japan to convince them that a code was possible….

Besides selling our concepts at home, we went to Geneva where [we] presented [our] document to the staff of the GATT Secretariat. We also took the opportunity to present it to the Geneva based representatives of a large number of countries… What I have described to you is absolutely unprecedented in GATT. Industry has identified a major problem for international trade. It crafted a solution, reduced it to a concrete proposal and sold it to our own and other governments… The industries and traders of world commerce have played simultaneously the role of patients, the diagnosticians and the prescribing physicians.”

The door to patents on seed and patents on life was opened by genetic engineering. By adding one new gene to the cell of a plant, corporations claimed they had invented and created the seed, the plant, and all future seeds which have now become their property. In other words GMO meant God Move Over.

In defining seed as their creation and invention, corporations like Monsanto shaped the Global Intellectual Property and Patent Laws so that they could prevent farmers from seed saving and sharing. This is how the Trade Related Intellectual Property Rights (TRIPs) Agreement of the World Trade Organization was born. Article 27.3(b) of the TRIPs Agreement states:

“Parties may exclude from patentability plants and animals other than micro-organisms, and essentially biological processes for the production of plants or animals other than non-biological and micro- biological processes. However, parties shall provide for the protection of plant varieties either by patents or by an effective sui generis system or by any combination thereof.” Again, this protection on plant varieties is precisely what prohibits the free exchange of seeds between farmers, threatening their subsistence and ability to save and exchange seeds amongst one another.

Because the patents on life clause in TRIPS ,art 27.3( b ) was such a drastic leap in jurisprudence ,ethics, and concepts of what is an invention , members of WTO added a sentence requiring a mandatory review of the clause 4 years after the coming into force of the agreement , ie in 1999.

India in its submission had stated “Clearly, there is a case for re-examining the need to grant patents on lifeforms anywhere in the world. Until such systems are in place, it may be advisable to:- (a) exclude patents on all lifeforms;”

This mandatory review has been subverted by the US government within the WTO: this long overdue review must be taken up to reverse Patents on life and Patents on Seed. Instead of trying to change India’s laws, the US should function as a member of the international community and not undermine international treaty obligations .

Life forms, plants and seeds are all evolving, self-organized, sovereign beings. They have intrinsic worth, value and standing. Owning life by claiming it to be a corporate invention is ethically and legally wrong. Patents on seeds are legally wrong because seeds are not an invention. Patents on seeds are ethically wrong because seeds are life forms, they are our kin members of our earth family. Monopolies of seeds have already contributed to farmers debt and suicides.

This is the reason that on 8th March the Government of India passed a seed price control order . The order was challenged by Monsanto and the Indian BIO — ABLE.

We intervened in the case , and the court upheld the order.

On 18th May the government passed another order to regulate royalties and licensing agreements. The Ministry of agriculture was forced to put the order on hold because of Industry lobbying, and for the Prime Minister’s visit to the US. The first duty of the Prime Minister of India is to protect Indian farmers from the predatory practices of the biotechnology industry (currently under investigation by the Competition Commission) not to help them in their predation of out farmers, our seeds, our biodiversity and knowledge.

India’s laws protect Biodiversity, Farmers Rights and Traditional knowledge and are TRIPS compliant.

While blocking the mandatory review — hence undermining international law — the US, on behalf of its corporations, initiated a case in the WTO against India to force us to change our patent laws. Methods of agriculture and plants were excluded from patentability in the Indian Patent Act to ensure that seed, the first link in the food chain, was held as a common property resource in the public domain and farmers’ inalienable right to save, exchange and improve seed was not violated. And only process patents were allowed in medicine.The pharmaceutical corporations which are the same as the biotechnology corporations are seeking absolute monopolies on seed and medicine.

Patent Act Art 3(d) and 3 (J)

When India amended her patent acts, safeguards consistent with TRIPS were introduced.

Art 3 defines what is not patentable subject matter.

IPRs expanded to cover living systems and organisms is a distortion of “Innovation” and “invention”. India did not allow this corporate created definition of life and seeds as machines and inventions in our law.

Article 3(d) excludes as inventions “the mere discovery of any new property or new use for a known substance”

This was the article under which Novartis’s patent claim to a known cancer drug was rejected. This is the article that Novartis tried to challenge in the Supreme court but lost.

Article 3(j) excludes from patentability “plants and animals in whole or in any part thereof other than microorganisns but including seeds, varieties, and species, and essentially biological processes for production or propagation of plants and animals”.

This was the article used by the Indian patent office to reject a Monsanto patent on climate resilient seeds.

While the India patent office rejected a Monsanto patent, the US Supreme Court ruled on behalf of Monsanto against a farmer called Bowman who had not bought seeds from Monsanto but purchased soybeans from an Indiana grain elevator.The US Supreme court ruling creates intellectual property in future generations of a grain or seed. This is biologically and intellectually incorrect because all that Monsanto has done is add a gene for resistance to its propriety herbicide Round up.

Adding a gene of Roundup resistance does not amount to “inventing” or creating a soya bean seed, and its future generations. This is why 3(j) in India’s patent law excludes essentially biological processes from being counted as an invention.

Plant Variety protection and farmers rights Act India has a law titled Plant Variety protection and farmers rights Act 2001, the only country to have a law with farmers rights in it’s name. The law has the following clause on Farmers Rights:

“a farmer shall be deemed to be entitled to save, use, sow, resow, exchange, share or sell his farm produce including seed of a variety protected under this Act in the same manner as he was entitled before the coming into force of this Act”

There is no such law protecting the rights of farmers in the US.

Seed Freedom includes farmers rights to save, exchange, breed, sell farmers varieties-varieties that have been evolved over millennia without interference of the state or corporations.

In addition to prosecuting farmers like Bowman, Monsanto has sued farmers like Percy Schmeiser of Canada, whose fields were contaminated with Monsanto’s Roundup ready canola. Instead of the principle of polluter pays, patents allow Monsanto to work on the principle of polluter gets paid. This also happened in the Australia in the case of Steve Marsh.

While Monsanto does not have a patent on Bt cotton in India, it goes outside the law to collect royalties as “technology fees”. Most of the 300,000 farmer suicides in India since 1995 — when WTO came into force — are concentrated in the cotton belt. And 95% cotton is now controlled by Monsanto.

Chapter VII of the PPVFRA on Compulsory Licensing already provides reasonable protection for the registrant.

Convention on Biodiversity(CBD) and the Biodiversity Act India has also signed and ratified the UN Convention on Biodiversity, and enacted a National Biodiversity law to protect our sovereign rights to Biodiversity and knowledge associated with it

The US has neither ratified the Convention on Biodiversity nor signed the Biosafety Protocol. The US is functioning outside of International Law, as a rogue nation attempting to bully countries like India — who have fulfilled their obligations and asserted their rights within the framework of International Treaties.

CBD and the Biodiversity Act India has also signed and ratified the UN Convention on Biodiversity, and enacted a National Biodiversity law to protect our sovereign rights to Biodiversity and knowledge associated with it

The US dictated IPR policy will undo India’s laws, and promote the Biopiracy of our Biodiversity and Traditional Knowledge

The US Government must stop the obstruction of he mandatory review of TRIPs to be completed to make patents on life and biopiracy illegal in international law.

It must stop putting pressure on India to change her values and her laws so that corporations and their owners can make limitless profits through biopiracy of our rich knowledge and biodiversity, through monopolies on our seeds, and medicines.

The National IPR policy of India is not shaped democratically in India. It is a policy imposed undemocratically on India by US corporations to break India’s Biodiversity laws and promote Biopiracy.

The policy recognises that India is rich in Biodiversity and knowledge.

2.30. Promote India’s rich heritage of traditional knowledge with the effective involvement and participation of the holders of such knowledge. Traditional knowledge holders will be provided necessary support and incentives for furthering the knowledge systems that they have nurtured from the dawn of our civilization.

2.21. Document oral traditional knowledge, taking care that the integrity of the said knowledge is preserved and traditional ways of life of communities are not compromised;

At the same time, India is rich in traditional medicinal knowledge which exists in diverse forms in our country. Amongst them, well developed systems like Ayurveda, Yoga & Naturopathy, Unani, Siddha, Sowa-Rigpa and Homeopathy have immense economic value. It is important to protect such knowledge, be it oral or in codified form, from misappropriation, while providing space and environment for dynamic development of traditional knowledge for benefit of mankind.

Yet the policy, made under US corporate pressure, then proposes IPRs on our collective heritage under the following clauses:

2.20. Public research institutions should be allowed access to TKDL for further R&D, while the possibility of using TKDL for further R&D by private sector may also be explored, provided necessary safeguards are in place to prevent misappropriation.

4.20. National Biodiversity Authority
4.20.1.The Government will formalize a consultation and coordination mechanism between the NBA, IPOs and other concerned Ministries/ departments like AYUSH, with a view to harmonious implementation of guidelines for grant of IP rights and access to biological resources and associated traditional knowledge and benefit sharing;

4.20.2. The NBA will streamline approvals for expeditious grant of IP rights, monetary and non-monetary benefit-sharing a n d introduce efficient and user friendly mechanisms for a meaningful interface between the NBA and applicants.

This is also inconsistent with the Objective

OBJECTIVE 3: Legal and Legislative Framework — To have strong and effective IPR laws, which balance the interests of rights owners with larger public interest

The existing IP laws in India were either enacted or revised after the TRIPS Agreement, and are fully compliant with it. These laws, along with various judicial decisions, provide a stable and effective legal framework for protection and promotion of IPRs. India shall remain committed to the Doha Declaration on TRIPS Agreement and Public Health.

At the same time, India is rich in traditional medicinal knowledge which exists in diverse forms in our country, and it is important to protect it from misappropriation — from piracy.

There can be no safeguards if what is not allowed, under Indian law, becomes permissible through a backdoor policy.

The most dangerous aspect of the policy is that it subtly suggests changes in India’s IPR and Biodiversity laws. Laws that protect our biodiversity, the order public, and the rights of people to their knowledge and resources, to seeds and medicines.

The policy states: Since it is difficult to predict the reach of existing laws in a changing and dynamic knowledge field, it becomes necessary to carry out legislative changes, as may be required from time to time. For this purpose, stakeholder consultation shall be done to keep the laws updated in consonance with national needs and priorities. The legal framework may also be utilised to enhance transparency and efficiency in the administration and enforcement of IPR laws.

Instead of protecting life on Earth, which is the objective of the Biodiversity Act, the policy is trying to redefine the objective — as granting of IPRs and their enforcement. Since in the area of Biodiversity, all IPRs are based on piracy of the properties and processes in biodiversity and the traditional knowledge associated with it, “enforcement of IPRs such as Patents” in fact, translates into enforcement of Biopiracy instead of its prevention through existing law .

3.8.3. Guidelines for authorities whose jurisdictions impact administration or enforcement of IPRs such as patents and Biodiversity;

Putting IPRs (corporate rights to illegitimate claims to invention, hence property , hence royalty collection) above the duty to care, above the public interest and national interest, is clearly stated in the rationale of the IPR policy.

The rationale for the National IPR Policy lies in the need to create awareness about the importance of IPRs as a marketable financial asset and economic tool.

The vision of the IP policy is based on the false assumption that knowledge owned is transformed into knowledge shared.

The opposite is true.

Once knowledge is owned, it cannot be shared. Intellectual Property Rights are defined as property in the “products of the mind”, including patents. Patents are granted for inventions, and give the patent holder the right to exclude everyone from the use or marketing of a patented product or process. Over the last 2 decades, patent laws have taken a perverse direction under the influence of corporations who want to own life , and establish monopolies over seed and medicine. Such monopolies are violative of article 21 of the Indian constitution which guarantees all citizens the right to life.

Biopiracy is another example of false claims to inventions.

When the policy opens up India’s Biodiversity and Traditional knowledge to extraction, the Bio-Pirates will have the right to prevent Indians from using our own knowledge and biodiversity.

We have fought against cases of Biopiracy, and won.

BIOPIRACY

Over the past decade, through new property rights and new technologies, corporations have hijacked the diversity of life on earth, and people’s indigenous innovation.

Patents on life are a hijack of biodiversity and indigenous knowledge; they are instruments of monopoly control over life itself. Patents on living resources and indigenous knowledge are an enclosure of the biological and intellectual commons. Life forms have been redefined as “manufacture”, and “machines”, robbing life of its integrity and self-organisation. Traditional knowledge is being pirated and patented unleashing a new epidemic of “bio piracy”.

To end this new epidemic and to save the sovereignty rights of our farmers it is required that our legal system recognises the rights of communities, their collective and cumulative innovation in breeding diversity, and not merely the rights of corporations. It is the need of the hour to evolve categories of community intellectual rights (CIRs) related to biodiversity to balance and set limits along with boundary conditions for protection. The Intellectual Property Rights as evolved are in effect, a denial of the collective innovation of our people and the seed sovereignty or seed rights of our farmers.

1. Patenting of Neem
   The patenting of the fungicidal properties of Neem was a blatant example of biopiracy and indigenous knowledge. But on 10th May, the European Patent Office (EPO) revoked the patent (0436257 B1) granted to the United States Department of Agriculture and the multinational corporation W. R. Grace for a method of controlling fungi on plants by the aid of an extract of seeds from the Neem tree. The challenge to the patent ofNeem was made at the Munich Office of the EPO by 3 groups : The European Parliament’s Green Party, Dr. Vandana Shiva of RFSTE, and the International Federation of Organic Agriculture and challenged it on the grounds of “lack of novelty and inventive step”. They demanded the invalidation of the patent among others on the ground that the fungicide qualities of the Neem and its use has been known in India for over 2000 years, and for use to make insect repellents, soaps, cosmetics and contraceptives and the neem patent was finally revoked.
2. Biopiracy of Basmati
   On 8th July 1994, Rice Tec Inc, a Texas based company, filed a generic patent (Patent No. 5663484) on basmati rice lines and grains in the United States Patent and Trademark Office (USPTO) with 20 broad claims designed to create a complete rice monopoly patent which included planting, harvesting collecting and even cooking. Though Rice Tec claimed to have “invented” the Basmati rice, yet they accepted the fact that it has been derived from several rice accessions from India. Rice Tec had claimed a patent for inventing novel Basmati lines and grains.
   After our protests, and our case in the SC of India, the U.S. Patent and Trademark Office struck down most sections of the Basmati patent. The basmati victory was our second Biopiracy victory.
3. Syngenta’s Attempt at Biopiracy of India’s rice diversity
   Syngenta, the biotech giant, tried to grab the precious collections of 22,972 varieties of paddy, India’s rice diversity, from Chattisgarh in India. It had signed a MoU with the Indira Gandhi Agricultural University (IGAU) for access to Dr. Richharia’s priceless collection of rice diversity which he had looked after as if the rice varieties were his own children. The mass agitation by the peoples’ organization, farmers’ unions and civil liberty groups, women’s groups, students’ groups and biodiversity conservation movements against Syngenta and IGAU bore result and Syngenta called off the deal.
4. Monsanto’s Biopiracy of Indian Wheat
   The next major victory against biopiracy for Navdanya came in 2004 when the European Patent Office in Munich revoked Monsanto’s patent on the Indian wheat variety, Nap Hal. Monsanto, the biggest seed corporation was assigned the patent (No. EP 0445929 B1) on wheat on May 21st, 2003 by the EPO under the simple title, “plants”. On January 27th, 2004 The Research Foundation for Science, Technology and Ecology along with Greenpeace and Bharat Krishak Samaha filed a petition at the EPO challenging the patent rights given to Monsanto, leading to the patent being revoked.
5. ConAgra’s Biopiracy claim on Atta (Wheat flour)
   Atta, a staple food and ingredient within India, is currently under threat from the corporation ConAgra who filed a “novel” patent (patent no 6,098,905) claiming the rights to an atta processing method, and was granted the patent on August 8th, 2000. The method that ConAgra is claiming to be novel has been used throughout South Asia by thousands of atta chakkis, and so cannot justly be claimed as a novel patent.
6. Monsanto’s Biopiracy of Indian Melons
   In May 2011, the US company Monsanto was awarded a European patent on conventionally bred melons (EP 1 962 578). These melons which originally stem from India have a natural resistance to certain plant viruses. Using conventional breeding methods, this type of resistance was introduced to other melons and is now patented as a Monsanto “invention”. The actual plant disease, Cucurbit yellow stunting disorder virus (CYSDV), has been spreading through North America, Europe and North Africa for several years. The Indian melon, which confers resistance to this virus, is registered in international seed banks as PI 313970. With the new patent, Monsanto can now block access to all breeding material inheriting the resistance derived from the Indian melon. The patent might discourage future breeding efforts and the development of new melon varieties. Melon breeders and farmers could be severely restricted by the patent. At the same time, it is already known that further breeding will be necessary to produce melons that are actually protected against the plant virus. DeRuiter, a well known seed company in the Netherlands, originally developed the melons. DeRuiter used plants designated PI 313970 — a non-sweet melon from India. Monsanto acquired DeRuiter in 2008, and now owns the patent. The patent was opposed by several organisations in 2012.

Biopiracy is not Innovation : Patenting Climate Resilience in farmers varieties

At the Milan Expo 2015, during the Women’s conference organised by Emma Bonino, Italy’s former foreign Minister, I was invited to give a keynote address. In a panel following my address, a representative of the Gates Foundation talked of how the Foundation was financing the innovation and invention of climate resilient crops through new technologies. When I asked him which farmers varieties they were using, he was silent.

Climate resilience is a complex trait, and cannot be “engineered” through the crude tools of transferring single gene traits from one organism to another.

What corporations and the Gates foundation are doing is taking farmers varieties with known climate resilient traits from public gene banks, mapping their genome, and taking patents on the basis of guesswork and speculation, about which part of the genome contributes to the known trait.

Like Columbus — setting out for India, getting lost and arriving in the Americas, “discovered” “America” — Gates and Monsanto are “discovering” climate resilience.

Just as the narrative of Columbus’ Discovery erases the indigenous people who lived across the American continent, as well as those who had travelled before Columbus, the patenting of climate resilience erases farmers breeding, and the biodiversity which they have given us. It erases the source of the seed, the culture of the seed, the commons of the seed. It is an enclosure through piracy — Biopiracy.

Today Biopiracy is carried out through the convergence of information technology and biotechnology. It is done through taking patents by mapping genomes and genome sequences. While living seeds need to evolve in situ, patents on genomes can be taken through access to seed ex situ. This is where the Svalbard seed bank, also called the Doomsday vault comes into the picture. Bill Gates and the Rockefeller Foundation are investing heavily in collecting seeds from across the world and storing them in this facility in the Arctic .

Diversity Seek (DivSeek) is a global project launched in 2015 to map the genetic data in the peasant diversity of seeds held in gene banks. It is funded by Bill Gates. It robs the peasant of their seeds and knowledge, it robs the seed of its integrity and diversity, its evolutionary history, its link to the soil, and reduces it to “information” and “data”. It is an extractive project to “mine” the data in the seed. SEVEN MILLION CROP ACCESSIONS are in public seed banks. DivSeek could allow 5 corporations to own this diversity.

http://www.pricklyresearch.com/AutoIndex/index.php?dir=digitalgenebanking/&file=DivSeek_Paper_25May2016.pdf

http://www.pricklyresearch.com/AutoIndex/index.php?dir=digitalgenebanking/&file=Pioneer_syngenta_proposed_collaboration.pdf

http://www.pricklyresearch.com/AutoIndex/index.php?dir=digitalgenebanking/&file=8104_Rieseberg_L_Burke_J_APF.pdf

India should remain a strong nation

The IPR policy of a a strong, sovereign India and a biodiversity and knowledge rich civilisation needs to prevent its take over by foreign interest.

India needs to remind the US — at this fragile moment of human history — that we have evolved the deepest knowledge of Ayurveda, and the richest Biodiversity in Agriculture, not through privatisation and IPRs but through the philosophy Vasudhaiva Kutumbhakam, the Earth family. Our ancestors did not put their names on the texts they wrote. They contributed to a collective, cumulative process of innovation, creativity, wisdom — not the philosophy behind IPRs, of privatisation of knowledge for profits and rent collection. They evolved knowledge for the “Common Good” — Sarve Bhavantu Sukhna — not private greed which promotes “Sarve Bhavantu Dukhina”. Farmers committing suicide because of seed monopolies, as has happened with Bt cotton in India, patients dying due to lack of access to affordable medicine because of patent monopolies, pollinators and soil organisms dying because patented RoundUp and other herbicides are being pushed in Agriculture through the promotion of Roundup Ready GMOs, farmers in Sri Lanka dying because of Kidney Failure because of the spread of Roundup, are all signs of Sarve Bhavaintu Dukhina.

Patents on life violate the “Ordre Public” or moral order embodied in the philosophy of Vasudhaiv Kutumbhakam, that all beings on earth are family. IP laws need to be subjected to ethical criteria, criteria of justice, and on a clear definition of invention.

Life-forms, plants and seeds are all evolving, self-organised, sovereign beings. They have intrinsic worth, value and standing. Owning life by claiming it to be a corporate invention is ethically and legally wrong. Patents on seeds are legally wrong because seeds are not an invention. Patents on seeds are ethically wrong because seeds are life forms, they are our kin members of our earth family.

On criteria of rights of nature (Vasudhaiv Kutumbhakam) and people’s rights, India’s laws are strong, US laws are weak.

When the US talks of strong patent laws, it is restricting itself to the corporate interest. On criteria of corporate rights at the cost of nature and people, US laws are strong. On grounds of ethical considerations and social and ecological justice, they are weak. Instead of India being bullied to destroy her civilisational legacy of Vasudhaiv Kutumbhakam, her carefully and democratically evolved laws related to Biodiversity, the Rights of Mother Earth, and rights of people to their collective intellectual and cultural heritage, it is time for the US government to stop being an instrument of the ethically, scientifically and legally perverse construction of global corporations to define life as their invention and property.

It is time to revisit our IPR policies in the context of our civilisational imperative and our constitution, in terms of the public interest and the national interest. Let it not be recorded in history that in 2016 India was recolonised through an IPR policy that gave away our rich biodiversity and knowledge, our freedom and sovereignty.