by Dr. Vandana Shiva – The Asian Age, 31 October 2014
“We found 9,000 biopiracy patents related to Ayurveda, which will be used to restrict access to these heritage medicines by the Indian people and small-scale pharma businesses”.
Following Prime Minister Narendra Modi’s meeting with President Barack Obama on September 30, US and India issued a joint statement: “Agreeing on the need to foster innovation in a manner that promotes economic growth and job creation… committed to establish an annual high-level Intellectual Property (IP) Working Group with appropriate decision-making and technical-level meetings as part of the Trade Policy Forum.” Earlier, the US had put India on its 2014 “Priority Watch List” and initiated the current Out-of-Cycle Review of India’s Intellectual Property laws (IPR). Indian authorities have disagreed with such unilateral measures by the US government.
Over the last two decades, patent laws have taken a perverse direction from seemingly protecting novel ideas and products of intellect to being used by major corporations to establish monopolies over necessities like seed, food and medicines. Such monopolies violate Article 21 of the Indian Constitution, which guarantees citizens the right to life.
It is time to re-visit our IPR policies in the context of our civilisational imperative, our Constitution and to protect India, her people and businesses. Patents on life violate the “Ordre Public” or moral order embodied in the philosophy of Vasudhaiva Kutumbakam 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.
When the US talks of strong patent laws, it is from a perspective restricted to corporate interest. On criteria of corporate rights at the cost of nature and people, US laws are strong. On grounds of ethical considerations, social and ecological justice, they are weak. India’s laws on the other hand, are strong when it comes to social and ecological justice.
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 first dispute in the WTO was initiated by the US 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.
When India amended her patent Acts, safeguards consistent with TRIPs were introduced. Article 3 defines what is not patentable subject matter. 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’ 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 micro-organisms 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’s patent claim on climate resilient seeds.
While the Indian patent office rejected a Monsanto patent, the US Supreme Court ruled on behalf of Monsanto against a farmer called Bowman. 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 proprietary glyphosate-based herbicide: RoundUp. Adding a gene for tolerance of otherwise lethal doses of glyphosate does not amount to “inventing” or creating a soya bean seed and its future generations. This is why Article 3(j) in India’s patent law excludes essentially biological processes from being counted as inventions. Instead of the principle of polluter pays, patents allow Monsanto to work on the principle of polluter gets paid.
The IPR policy and IP working group need to assess the harm caused to farmers because of collection of royalties on GMO seeds, and harm caused to all citizens because of rising prices of medicine because of patent monopolies. In addition, the key issue of biopiracy needs to be addressed. After the biopiracy of Neem, Basmati and wheat, which we fought and won, there is an ongoing case on the biopiracy of brinjal for Bt Brinjal. The GM banana that is being touted as a solution to Vitamin A deficiency is also a case of biopiracy. The only “invention” involved in stealing a banana from Micronesian cultures that has high beta carotene. When it comes to medicines the situation is as murky. We found 9,000 biopiracy patents related to Ayurveda, which will be used to restrict access to th-ese heritage medicines by the Indian people and small-scale pharma businesses.
The TRIPs clause on patents on life was due for a mandatory review in 1999. India in its submission had stated: “Clearly, there is a case for re-examining the need to grant patents on life-forms anywhere in the world. Until such systems are in place, it may be advisable to (a) exclude patents on all life-forms.” The mandatory review of TRIPs must be completed to make patents on life and biopiracy illegal in international law. The time has come to stop the use of patents by corporations as a tool to exercise ownership on life, to steal our biological and intellectual heritage, to create seed monopolies and push our farmers to suicide, to claim monopolies on medicine and allow our people to die without access to medicine. Humanity and the Earth must come before short-term profits for a handful of companies.
The writer is the executive director of the Navdanya Trust