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The US Patent System Legalizes Theft and Biopiracy--Vandana Shiva
THE HINDU, Wednesday, July 28, 1999

By Vandana Shiva

The patents on the anti-diabetic properties of `karela', `jamun', brinjal
once again highlight the problem of biopiracy - the patenting of
indigenous biodiversity-related knowledge.

U.S. Patent No. 5,900,240 was granted recently to Cromak Research Inc.,
based in New Jersey. The assignees are two non-resident Indians, Onkar S.
Tomer and Kripanath Borah, and their colleague, Peter Gloniski.

The use of 'karela', 'jamun' and brinjal for control of diabetes is common
knowledge and everyday practice in India. Their use in the treatment of
diabetes is documented in authoritative treatises such as the "Wealth of
India", the "Compendium of Indian Medicinal Plants" and the "Treatise on
Indian Medicinal Plants".

This indigenous knowledge and use consists of "prior art". No patent
should be given where prior art exists, since patents are supposed to be
granted only for new inventions on the basis of novelty and non-
obviousness. These criteria establish inventiveness, and patents are
exclusive rights granted for inventions.

The claim to the use of `karela' or `jamun' for anti-diabetic treatment as
an invention is false since such use has been known and documented widely
in India.

Biopiracy and patenting of indigenous knowledge is a double theft because
first it allows theft of creativity and innovation, and secondly, the
exclusive rights established by patents on stolen knowledge and steal
economic options of everyday survival on the basis of our indigenous
biodiversity and indigenous knowledge. Overtime, the patents can be used
to create monopolies and make everyday products highly priced.

If there were only one or two cases of such false claims to invention on
the basis of biopiracy, they could be called an error.


However, biopiracy is an epidemic. `Neem', `haldi', pepper, `harar',
`bahera', `amla', mustard, basmati, ginger, castor, `jaramla', `amaltas'
and now `karela' and `jamun'.....

The problem is not, as was made out to be in the case of turmeric, an
error made by a patent clerk. The problem is deep and systemic. And it
calls for a systemic change, not a case by case challenge.

If a patent system which is supposed to reward inventiveness and
creativity systematically rewards piracy, if a patent system fails to
honestly apply criteria of novelty and non-obviousness in the granting of
patents related to indigenous knowledge then the system is flawed, and it
needs to be changed. It cannot be the basis of granting patents or
establishing exclusive marketing rights.

The problem of biopiracy is a result of Western style IPR systems, not the
absence of such IPR systems in India. Therefore, the implementation of
TRIPs, which is based on the U.S. style patent regimes, should be
immediately stopped and its review started.

The promotion of piracy is not an aberration in the U.S. patent law. It is
intrinsic to it. The U.S. laws were originally designed to pirate or
borrow industrial innovations from England. Patents originally functioned
as import franchises or import monopolies. Patents were given for salt
manufacturers, for operating steamboats even though these were not
invented in the U.S.

Later, the recognition and stimulation of inventiveness was added as an
objective, and the criteria of novelty, non- obviousness and utility were
developed as a test for inventiveness. However, the earlier objectives of
creating U.S. monopolies based on free import of knowledge from other
countries have survived and the U.S. continues to import knowledge which
it then converts to "intellectual property".

Article 102 of the U.S. Patent Law, which defines prior art, does not
recognise technologies and methods in use in other countries as prior art.
If knowledge is new for the U.S., it is novel, event if it is part of an
ancient tradition of other cultures and countries. This was categorically
stated in the Connecticut Patent Law which treated invention as "bringing
in the supply of goods from foreign ports" that is not yet of use among
us.

`Prior art' and `Prior use' in other countries were, therefore,
systematically ignored in the U.S. laws on monopolies granted on the basis
of claims to invention. The same assumption of ignorance as invention is
enshrined in the U.S. Patent Act of 1952. Section 102 of the Act treats as
a `prior art' use in the U.S. and publications in foreign countries. Use
in foreign countries is not recognised as `prior art'.

Section 102 of the U.S. law which defines `prior art' reads as follows:-

35 USC 102: Conditions of patentability:

Novelty and loss of right to patent. A person shall be entitled to a
patent unless:

A. The invention was known or used by others in this country or patented
or described in a publication in this or a foreign country before the
invention thereof by the applicant for patent.


Or

B. The invention was patented or described in a trade publication in this
or a foreign country or in public use or on sale in this country more than
one year prior to the date of the application for patent in the United
States.

Use in a foreign country therefore does not constitute `prior art' in U.S.
patent law.

Since patents are granted for new inventions, denial or non- recognition
of `prior art' elsewhere allows patents to be granted for existing
knowledge and use in other countries. This is the basis of biopiracy or
knowledge of Indian knowledge systems, and indigenous uses of biological
resources being patented.

The U.S. style patent laws can only pirate indigenous knowledge. They
cannot recognise or protect it.

The survival of an anachronistic Art. 102 thus enables the U.S. to pirate
knowledge freely from other countries, patent it, and then fiercely
protect this stolen knowledge as "intellectual property". Knowledge flows
freely into the U.S. but is prevented from flowing freely out of the U.S.

If biopiracy has to stop, then the U.S. patent laws must change, and
Article 102 must be redrafted to recognise prior art of other countries.
This is especially important given that the U.S. patent laws have been
globalised through the TRIPs agreement of the WTO.

In 1999, Article 27.3 (b) of the TRIPs agreement is supposed to come up
for review. This is the article that most directly impacts indigenous
knowledge, since it relates to living resources and biodiversity. In 2000
A.D. countries can also call for an amendment of TRIPs as a whole.

Since TRIPs is based on the assumption that the U.S. style IPR systems are
"strong" and should be implemented worldwide, and since in reality the
U.S. system is inherently flawed in dealing with indigenous knowledge and
is "weak" in the context of biopiracy, the review and amendment of TRIPs
should begin with an examination of the deficiencies and weakness of
Western style intellectual property rights systems. A globalised IPR
regime which denies the knowledge and innovations of the Third World,
which allows such innovations to be treated as inventions in the U.S.,
which legalises monopolistic exclusive rights by granting of patents based
on everyday, common place indigenous knowledge is a regime which needs
overhaul and amendment.

Instead of being pressured, as India has been, to implement a perverse IPR
system, through TRIPs, India should lead a campaign in the WTO for review
and amendment of the system. Meantime, India and other Third World
countries should freeze the implementation of TRIPs. While TRIPs
implementation is frozen for starting a process of review, we should make
domestic laws which protect our indigenous knowledge as the common
property of the people of India, and as a national heritage. The
implementation of the Convention on Biological Diversity (CBD), enables us
to do this. Since the CBD is also an international treaty, protecting
indigenous knowledge via a Biodiversity Act does not violate our
international obligations. In fact, removing the inconsistencies between
TRIPs and CBD should be important part of the international campaign for
the review and amendment of TRIPs.

Amending TRIPs and U.S. patent laws is the challenge we must take up. The
problem is not our IPR systems but the Western style IPR regimes which
systematically enable piracy of indigenous knowledge and practices through
patents.

The review of TRIPs should be used to start amending these deficient
systems.

Some commentators have suggested that biopiracy happens because our
knowledge is not documented. That is far from true. Indigenous knowledge
in India has been systematically documented, and this in fact has made
piracy easier. And even the folk knowledge orally held by local
communities deserves to be recognised as collective, cumulative
innovation. The ignorance of such knowledge in the U.S. should not be
allowed to treat piracy as invention.

Piracy of indigenous knowledge will continue till patent laws directly
address this issue, exclude, patents on indigenous knowledge and trivial
modifications of it, and create sui generis systems for the protection of
collective, cumulative innovation.

The protection of diverse knowledge systems requires a diversity of IPR
systems, including systems which do not reduce knowledge and innovation to
private property for monopolistic profits. Systems of common property in
knowledge need to be evolved for preserving the integrity of indigenous
knowledge systems on the basis of which our every day survival is based.

Since neither TRIPs, nor the U.S. patent law have scope for recognising
knowledge as a "commons", or recognising the collective, cumulative
innovation embodied in indigenous knowledge systems, if indigenous
knowledge has to be protected, then TRIPs and U.S. patent laws must
change.

Nothing less than an overhaul of Western style IPR systems with their
intrinsic weaknesses will stop the epidemic of biopiracy. And if biopiracy
is not stopped, the every day survival of ordinary Indians will be
threatened, as over time our indigenous knowledge and resources will be
used to make patented commodities for global trade. Global corporate
profits will grow at the cost of the food rights, health rights and
knowledge rights of one billion Indians, two thirds of whom are too poor
to meet their needs through the global market place.

India should lose no time in starting the movement for amendment of TRIPs
and U.S. patent laws. Our survival itself is at stake.

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