Title Biopiracy in Asia : a case study of India and Thailand

Author(s) Runguphan, Titima

Citation

Issue Date 2004

URL http://hdl.handle.net/10722/30867

Rights unrestricted

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Chapter 1

Introduction �.1 Introduction

In the last few decades, biotechnology has developed and played a vital role in the

development of the agricultural, pharmaceutical and medical industries. As the

importance of the biotechnology industry increases, many useful biotechnological

inventions can earn their inventors millions of dollars. It is not surprising that

inventors in this field would favour an intellectual property rights (IPRs) system

such as the one used for industrial designs and products to protect their inventions.

Plant variety protection (PVP) system was one of the first initiatives in granting

breeders of new asexually/sexually reproduced plant varieties the exclusive rights

on that material for a certain period of time. Nevertheless, inventors in the biotech

industries preferred a system that provides stronger protection.

Since the 1980s, individual inventors or corporations in some countries, such as

the United States, Japan, and some European countries, successfully lobbied

government to permit exclusive rights to certain biological materials they

developed through patenting. They were given exclusive rights to plant and/or

reproduce and market them and have the right to prohibit others from planting,

reproducing and selling the material provided that the materials in question

possess some special properties such as novelty, non-obviousness, and human

intervention.

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However, the patenting of biological inventions has triggered a series of debates.

First, it brought about the question of patentability of life forms. Biological

inventions are different from other inventions as they involve parts of living

matter that might be crucial to human life and the biodiversity. Ethically, it is a

highly controversial matter of whether any individual, groups of individual, or

corporations can, in fact, own biological organisms and benefit from the exclusive

rights derived from the patenting of that material. Economically, IPRs in

biological resources allow economic monopoly on materials that used to be

common goods. Biological resources, like the air we breathe, were regarded as

common goods and common heritage of mankind. However, they are being

commodified through proprietary rights on biological inventions. 1 Legally and

socially, the introduction of intellectual property rights in biological inventions

has undermined the concept of collective rights of community and the concept of

community and indigenous knowledge. Furthermore, a number of patent holders

are using biological materials from other communities or countries and some

might gain patents to materials or processes that have been known for centuries

for their special properties, and claiming them as a novel inventions as if they

were unknown to anyone before. This phenomenon has been referred to as

biopiracy.

1Plant genetic resources were regarded as common heritage of mankind in the International

Undertaking on Plant Genetic Resources Agreement signed in 1983. It is in conflict with Article 3 of the Convention of Biological Diversity which recognizes that “states have… the sovereign right to exploit their own resources pursuant to their own environmental policies…” And it is also challenged by the concept of private rights of biological materials and inventions in World Trade Organization’s Agreement on Trade-Related Aspects of Intellectual Property Rights.

Secretariat of the Convention on Biological Diversity 2002, Convention of Biological Diversity. <http://www.biodiv.org/convention/articles.asp> accessed on 2 Aug., 2002.

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Biopiracy in this dissertation refers to the phenomenon which the industrialized

countries utilize the genetic material, i.e. plants and animal DNA, and indigenous

knowledge from communities in the gene-rich developing countries and then

patent them without the proper appropriation of benefit for the source owner.2

This brings us to a series of debate of proprietary rights of genetic resources and

the ethical problem of patentability of genetic materials that I will address in

chapter 3.

1.2 Why is biopiracy important?

“Imagine that a medicinal plant your family and community

have cultivated and used for as long as anyone can remember

has been taken and patented by a multinational corporation.

Imagine that you are a medical researcher trying to find a cure

for breast cancer, but you are blocked from using the genetic

materials you need for your research because they have been

patented. Imagine that during a medical procedure blood

samples and scrapings are taken from your cheek without your

consent, and from these, a research institute patents your cell

lines. Imagine that you are a farmer who can no longer save

your seed to re-sow in the next harvest, but must purchase it

2Genetic Resources Action International (GRAIN). Biopiracy, TRIPs and the Patenting of Asia’s Rice Bowl. May 1998. <http://www.grain.org/publications/rice-en-p.htm> accessed on 9 Jan. 2002.

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anew from the company each year because they have patented

those resources.”3

The above quotation, although it overstated of the seriousness of the problem, best

describes the suspicion of a pro-South non-government organization, Genetic

Resource Action International (GRAIN), which vehemently opposes the patenting

of biological resources and biopiracy. This suspicion is also shared by many other

pro-South individuals and academics, such as Pat Mooney, Dr. Vandana Shiva,

and NGOs in developing countries.

Recently, the word biopiracy has become a cliché in numerous forums and

literatures referring to the patenting of genetics resources from the least-developed

countries (LDCs) and developing countries by multinational corporations (MNCs)

and other agents from developed countries. Furthermore, it has become a rhetoric

representing the North-South debate on the benefit sharing of biological resources

and biological and cultural diversity conservation. The players are usually large

biotechnological corporations and/or governments from a developed country

which benefits from the biological materials they patented and, vis-à-vis the

people of a less developed states who received a minimal royalty for their

precious biological resources. Resentment arises when the developing countries

have to face paying higher prices for seeds, plants, and medicines for which they

themselves have created the basis.

3 Genetic Resources Action International (GRAIN), Patents and Pirates. �rd ed. Barcelona: GRAIN, 2000. p. 2.

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The antagonism between the developed countries and developing countries was

accentuated after the imposition of the Agreement on Trade-related Aspects of

Intellectual Property Rights in the 1990s. According to Article 27 of the

Agreement, all ����member states (as of 4 April ����) of the World Trade

Organization (WTO) are obliged to recognize the proprietary rights to patentable

subject matters which include the patenting of biological materials. Developing

countries perceive this as a legal loophole for foreign companies to patent

biological resources from developing nations and they will eventually become

dependencies of industrialized countries. This dissertation is a review of the issue

of biopiracy which has become an important concern of developing countries.

It seems arbitrary to use the term “piracy” in addressing the question now because

piracies, be it robbery at sea or infringement of another’s copyrights and business

rights, are crimes as they are both legally and morally incorrect. On the other

hand, biopiracy, although morally wrong, may not be regarded as a crime unless

there is specific legal provision saying it is so. Nevertheless, we cannot deny the

existence of this phenomenon.

First, the patenting of biological materials denies the concept of common goods

which has been the norm governing the natural resources management for

centuries. It has commodified free goods, that belong to the public, into individual

properties. The concept of intellectual property rights is a foreign idea to

developing countries.4 In these countries, knowledge was shared by the people in

the community and passed from generation to generation. It then became common

4Erich Kaufer, The Economics of the Patent System. Chur: Harwood Academic Publishers, ����. pp. 41-53.

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knowledge. It was not surprising that no one in India claim patent on neem, a local

herb that has been used for centuries by the local as medicine and herbicide,

because according to the Indian people neem belongs to the whole Indian

community.

Secondly, the intellectual property system is suitable for industrialized societies

which have already been gone through the process of industrialization and the

research and development of which have already been sophisticated. For

developing countries, although they can import machines and inventions from

developed countries, they ultimately lack research and development experienced

that can help them improve their ability to invent. Imposing an IPR system will

not benefit them. Furthermore, it was industrialized countries, not developing

countries, that set international intellectual property law such as the TRIPs

Agreement. Therefore, enforcing a global standard of patenting of biological

resources proves to be inequitable.

Biopiracy not only damages community knowledge and national heritage of

developing countries, it also becomes a potential threat to the economic interest of

many Asian and other developing countries especially when more than half of

their citizens work in the agricultural sector. Moreover, biopiracy has also caused

the problem of the intrusion to national sovereignty when an individual,

corporation or a government from other countries utilize and benefit from the

patenting of genetic resource which derive from native species and indigenous

knowledge of another sovereign state. That means not only the violation of the

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concept of common heritage of mankind, but also the violation of a state’s

sovereign rights to its own resource.

Nor can we refute that the patenting of biological material in numerous cases is

morally unacceptable in many societies. In the two countries in the case studies,

India and Thailand, the concept of intellectual property rights over biological

resources, be it microorganisms or genetically modified mice, is not acceptable.

��� Organization of study

It is the purpose of this dissertation to study the importance and effects of

biopiracy with special attention to Asian countries. It also examines reactions of

developing countries to the growing trend of IPRs in biological resources.

The first four chapters have been devoted to the review of the concept of biopiracy

itself while the last three chapters are dedicated to case studies, analysis and

recommendation.

The next chapter is a detailed study about the concept of biopiracy. It will explain

what is biopiracy; explore the history and evolution of biopiracy, and the effects

caused by biopiracy. Nine biopiracy cases are given as example in this chapter.

Chapter three explores the patenting of biological materials focusing on the patent

law involving biological matters in the national level and controversies caused by

it. Chapter four is a review of international agreements related to the patenting of

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biological materials. It also discusses the increase of biopiracy through the

introduction and promotion of trade agreements. Particular attention has been

drawn to the Agreement on Aspects of Intellectual Property Rights (TRIPs) as it

has become the major mechanism in promoting the patenting of biological

resources.

I have chosen two countries, India and Thailand, as case studies in chapter five

and six. The reason I chose these two countries as case studies is because both

India and Thailand have experienced a series of biopiracies from foreign

companies in the past few decades and both have similar strategies in handling the

problem. However, it is impossible to include all kinds of biopiracy (which can

involve human, animal and plants) in the case studies. The examples given in

these two chapters are only biopiracy cases related to plants.

The concluding chapter is the comparative analysis of the two case studies. It also

includes some policy recommendations for governments, especially from

developing countries in dealing with the problem of biopiracy.

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Chapter 2

The concept of biopiracy ��� What is biopiracy?

The word “biopiracy” was originated in the ����s. During that period of time,

developing countries had faced tough condemnation from industrialized countries

for intellectual piracy. Developed countries, especially the United States (US),

blamed developing countries of violating their intellectual property, causing a

huge amount of economic loss to their entrepreneurs especially in the field of

drug, product design, trademark, and computer software.5 As a result, countries

such as, India, Argentina, Brazil Vietnam and Thailand, had all been threatened

under the special 301 provision of US trade law. 6

To counter the above accusation on the behalf of developing countries, Pat

Mooney, the ex-director of the Rural Advancement Fund International (RAFI)7

invented the term “biopiracy”. Bio-pirate refers to persons and countries that use

5 ����������� ����������������������The Research Programme on Bio-piracy in Thailand

������ !�"�#$%&�����'���(�)*���+����,-./0�1 2��-3/,0�4Witoon Lianchamroon, “Biopiracy,” The Research Programme on Bio-piracy in Thailand. Bangkok: The Thai Network on Community Rights and Biodiversity, 1998. pp. 5-12.]

6 "Special 301" clause of the Omnibus Trade And Competitiveness Act Of 1988 requires U.S. trade representative to identify, investigate, and take retaliatory action against countries whose policies deny adequate protection of intellectual property rights (e.g., patents, trademarks, and copyrights). During the 1970s and 1980s, protectionist sentiment was on the rise in the US Congress and, as a result, many developing countries were condemned by the US as unreliable trade counterparts. United Nations Conference on Trade and Development (UNCTAD). Automated System for Customs Data. <http://www.asycuda.org/cuglossa.asp?term=Competitive> accessed on 17 Sept., 2003.

7 Now Action Group on Erosion, Technology and Concentration. (ETC Group) is an international NGO that promotes the sustainable management and use of agricultural biodiversity based on people’s control over genetic resources and local knowledge, with a special emphasis on developing countries.

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the intellectual property rights to monopolize and own the right to access, utilize

benefit and control biological resources and related indigenous knowledge without

proper appropriation of benefit derived and addressing the original innovator.8 The

real pirates are those developed countries, especially the US, who benefited and

prospered from the plundering of natural resources from the developing and less

developed countries without paying any royalty to the source countries at all.

According to Mooney, the seriousness of intellectual piracy by developing

countries is comparable to biopiracy by developed countries. Mooney was not

alone in the study about the problem of biopiracy. Dr. Vandana Shiva, a biologist

from India, has also been studying and is particularly vocal about the matter of

biopiracy. According to Shiva, biopiracy refers to

"…the use of intellectual property systems to legitimize the

exclusive ownership and control over biological resources and

biological products and processes that have been used over

centuries in non-industrialized cultures."9

Hence, it is clear, according to Shiva, that a patent claim over the biodiversity and

indigenous knowledge is the act of biopiracy. Like Mooney, Shiva argues that a

biopiracy patent denies the innovation incorporated in indigenous knowledge. 10

She claims that the use of traditional knowledge reportedly increases the

efficiency of pinpointing plants’ medicinal uses by more than 400 per cent.11 For

8 Genetic Resources Action International (GRAIN). Biopiracy, TRIPs and the Asian Rice

Bowl. May 1998. <www.grain.org/publications/rice-en-p.htm> accessed on 9 Jan., 2002.

9 Vandana Shiva, “Biopiracy,” Protect or Plunder? : Understanding Intellectual Property Rights. London: Zed Books, 2001. pp. 49-68.

10loc. cit.

11loc. cit.

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example, in 120 active compounds currently isolated from higher plants and

widely used in modern medicine, per cent have uses that were known in

traditional systems, while only less than a dozen are synthesized by simple

chemical modification. 12 The rest are extracted from plants and then purified.

Because the benefit at stake is so enticing, the industrialized world would rather

choose to ignore the centuries long cumulative innovation of generations of rural

communities in the developing countries.

As mentioned in the introduction, biopiracy in this dissertation refers to the

phenomenon that the industrialized countries utilize the genetic material, i.e.

plants and animal DNA, and indigenous knowledge from communities in the

resource rich developing countries and then patent them without the proper

appropriation of benefit for the source owner.13 The next section discusses the

development of intellectual property rights in biological resources which

constitute biopiracy.

��� The History and Evolution of Biopiracy

Since the initial grant of patents in Venice in the 14th century, intellectual property

and patents have become essential tools in rewarding innovation and production.

They also work as a mechanism to protect an industry from its competitors while

12 David Pearce and Seema Puroshothaman. “The Economic Value of Plant-Based

Pharmaceuticals” in Timothy Swanson ed. Intellectual Property Rights and Biodiversity Conservation. Cambridge: Cambridge University Press, 1995. pp. 127-138.

�13Genetic Resources Action International (GRAIN). Biopiracy, TRIPs and the Patenting of

Asia’s Rice Bowl. May 1998. <http://www.grain.org/publications/rice-en-p.htm> accessed on 9 Jan. 2002.

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warranting to the patent holders, within a certain period of time, financial benefit

derived from an invention. Intellectual property rights had been, for centuries,

confined to industrial inventions and some literary and art works. However, in the

last century, there were substantial improvements in agriculture research and

development and this increased the demand for an IPRs system in agricultural and

biological inventions.

There were several significant events about intellectual property rights which were

related to agricultural and biological inventions in the 1980s. The first patent on a

life form was in the case of a genetically engineered microorganism. Prior to

1980, US Patent Law did not cover living things as interpreted by the US Patent

and Trademark Office (US PTO). However, on 16 June 1980, the US Supreme

Court ruled in the Diamond vs. Chakravarty case that a genetically engineered

bacterium from the genus Pseudomonas that possesses the special quality of

breaking down oil was a patentable subject. A patent (no. 4,259,444) was granted

for the bacterium on the grounds that the microorganism was not a product of

nature but was an invention and therefore it was patentable.

Another important incident on biological material concerned a patent applied for

a plant. In 1985, the US PTO’s Board of Appeals based on Chakravarty case to

rule in the Hibberd case that corn plants, seeds and plant tissue culture containing

an increase level of the amino acid tryptophan were patentable substances.14 The

application of a molecular genetics scientist Kenneth Hibberd and his co-inventor

included over 260 separate claims, which give them exclusive rights to exclude

others from use of all 260 aspects.

14Intellectual Property Protection: Biotechnology in a Global Economy <http://www.wws.princeton.edu/cgibin/byteserv.prl/~ota/disk1/1991/9110/911016.PDF> accessed on 19 Sept., 2003

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In terms of patenting animals, the first case was for a kind of engineered mouse

called Harvard Mouse or OncoMouse. The US Patents Office granted a patent on

12th April 1988 to DuPont for a mouse where infected chicken and human genes

had been engineered into the mouse’s permanent gene line. After a few initial

cases of successful patent application for biological materials in the 1980s, the

number of patent applications in the US and other industrialized countries for

these materials surged many fold. All patents in biological materials in the 1980s

were confined to developed countries. And there were minimal reactions from

developing countries to the issue of intellectual property rights in biological

inventions in early ����s because patents are usually territorial and contentions

created by the process were usually confined only to the source countries of the

material involved and the patents issuing countries. However, the controversy of

the intellectual property rights on biological inventions has become an

international issue after the US introduced intellectual property rights into the

Uruguay Round of General Agreement on Tariffs and Trade (GATT) and later

become became the Agreement on Trade-related Aspects of Intellectual Property

Rights (TRIPs) of GATT’s successor World Trade Organization (WTO). This

will be discussed in detail in Chapter four.

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��� Examples of biopiracy

Below are some examples of the patenting of biological materials that is important

to the understanding of the issue of biopiracy as most of these examples involved

biological resources from developing countries and the patentees from developed

countries.

Soybean

Soybean has become a multi-billion dollar commodity crop. The US produces up

to more than half of the global export market. Other top soybean producers are

Brazil, China and Argentina.

Table 1 Soybean Production in 200115

Country Production of Soybeans

(��� MT) Global ������ US ����� Brazil ��� Argentina ���� China ����

Source: FAO Production Yearbook Vol. 55-2001. p. 116.

In Asia, soybean is an important vegetable and protein crop. Soybean is an

important ingredient in many industrial products from ink to ketchup. As a result,

patents rights over soybean crops can provide the patent-holder with huge

economic, social and political controls over a vital item of the global economy. In

1994, the biotechnology company Agracetus was awarded a patent which

15 Food and Agriculture Organization of the United Nations (FAO), FAO Production Yearbook. Vol. 55. Rome : Food and Agriculture Organization of the United Nations, 2001. p. 116.

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effectively covered all transgenic soybeans. However, the patent has been

challenged in court. A chemical company Monsanto vehemently opposed the

patent in November 1994 by arguing that Agracetus’s invention lacked an

inventive step and thus was not novel. Ironically, Monsanto later bought up

Agracetus including the patent and quietly dropped its complaints.

Brazzein

Researchers at the University of Wisconsin have been granted US patents

5,362,580, 5,346,998 and 5,741,537, as well as European Patent 648995 for the

protein isolated from the berry of Pentadiplandra brazzeana, the genetic sequence

coding for it and the transgenic organisms that produce brazzein in the laboratory,

thereby eliminating the need for it to be collected or grown commercially in West

Africa. Derived from a West African berry, brazzein is a protein ����� times

sweeter than sugar, a quality that makes it highly desirable as a natural, low-

calorie sweetener.16 It is proven to be particularly valuable to the food industry�to

meet consumer demand for something sweet and low caloric or non-carbohydrate

for diabetes, weight control and people with obesity-related disorders. It is a

natural essence distinct from other non-sugar sweeteners and does not lose its

sweet taste when heated. However,�native Africans discovered its properties and

have been using it for centuries.

16 ETC Group, “Biopiracy - RAFI's Sixth Annual Update” May 11, 2000. <http://www.etcgroup.org/article.asp?newsid=174> accessed on 9 Jan., 2002.

16

Ilang-ilang

Ilang-ilang or Cananga odorata is a flower from the Philippines with a pleasant

and lasting scent. The French fashion house Yves St. Laurent has been importing

these flowers for more than 20 years and using their extract in a high-class line of

perfumes. Although ilang-ilang is native to many Southeast Asian countries, the

variety cultivated in the Philippines is found to be of highest quality. Just a few

years ago, the company stopped importing ilang-ilang from the Philippines and set

up its own plantations in Africa. Now the company has gained a patent for its

perfume formula based on this species.

Tempeh

Tempeh is one kind of a Javanese food made by fermented soybean. The process

of making tempeh is one of the oldest food technologies in the history of Javanese

people. Indonesian people often consume this delicacy. It is rich in vitamin B12

which proved to be a perfect substitute for animal protein. Currently, it is regarded

as a perfect health food as more and more people become health conscious in the

West. According to many health reports, diets that are high in fermented soy

products may reduce the risk of breast, colon, lung and stomach cancers, and it

may also protect us from cardiovascular diseases, osteoporosis and menopausal

symptoms.17 However, Japan has recently granted several patents on the process

17Vijaya Nair, M.D., M.S., and Vic Hernandez, M.P.H. “Fermented Soy: An Aid to Cancer

Prevention & Therapy,” in Well Being Journal Vol. 11, No. 6 ~ November/December 2002. <http://www.wellbeingjournal.com/soy.htm> accessed on 17 Sept., 2003.

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of making tempeh and claimed it as a national product of Japan. This is the best

example of the plundering of a traditional creation from the Indonesian culture.

Bitter gourd

AIDs is a big problem in Thailand. According to the UNICEF, there was an

estimate that the number of adults and children with age between 0-49 years old

suffering from HIV/AIDS in Thailand at the end of 2001 was as high as 670,000.18

National scientists have been developing medicines that can reduce the suffering

and prevent infection from the HIV virus. One research team was focusing on

bitter gourd (Momordica spp.), or ‘Bird Dropping Gourd’ as it is called in Thai,

which contains compounds that work against HIV. To their dismay, however, they

recently learned that American scientists copied their research agenda and

patented the active Map-30 protein from a native strain of Thai bitter gourd in the

United States. The Thai scientists feel that not only their work has been pirated

but part of the country’s indigenous biodiversity has been stolen as well.

Turmeric

18United Nations Children’s Fund (UNICEF), “At a glance: Thailand,” <http://www. unicef.

org/infobycountry /Thailand_statistics .html#8> accessed on 17 Sept., 2003.

18

Curcuma longa, a type of turmeric, is an Indian herb that has been used as

treatment for sprains, inflammatory conditions and wounds. The orange coloured

root is native to the subcontinent and South East Asia, and for thousands of years

has been a key component of Ayurvedic medicine.19 Ironically, in 1995, two US

scientists from the University of Mississippi were granted US patent 5,401,504 on

the use of turmeric.20 The scientists claimed that turmeric could heal wounds and

claiming this to be novel. They have stated in their patent application that turmeric

has long been used in India as a traditional medicine for treatment of various

sprains and inflammatory conditions. Nevertheless, they claimed that there was no

research on the use of turmeric as a healing agent for external wounds. The Indian

government challenged the patent and provided endless research papers predating

the patent, proving that turmeric has long been used in India to heal wounds. As a

result, the US Patent and Trademark office rejected all patent claims related to

turmeric.

Oncomouse

This is also known as the Harvard Mouse. It was genetically transformed to be

susceptible to cancer. Medical research facilities now have a ready-made test

patient for experiments in cancer therapy since all offspring of the oncomouse are

predisposed to contract the disease. In 1987, the oncomouse became the first

animal to be patented in the US. The research had been done at Harvard

University but it was in 1992 that a multinational corporation, DuPont, was

19Vandana Shiva, 2002. pp. 49-68. 20 GRAIN, Patents and Pirates, ����. p. 5.

19

awarded a European Patent 169,672 on the mouse.21 The company controlled all

modified animals using the oncomouse technique and also claimed patent

protection on any anticancer product derived from any Oncomice. The patent had

been provoked public concern about patents and morality.

John Moore’s spleen

In 1976, John Moore, a US national, underwent surgery at the University of

California removing his cancerous spleen after suffering from a rare form of

leukemia. His doctor, without the preoperative consent from Moore, removed

some tissues and cells from the removed spleen, which produced a special protein.

The doctor obtained US patent 4,438,032 for the cell line-dubbed "Mo", claiming

it produced valuable pharmaceutical compounds (a special protein) for use in

cancer therapy. 22 Later, the Swiss pharmaceutical company Sandoz bought up

exclusive rights for the commercial exploitation of the patent for alleged USD 15

million, while this long-term commercial value of the cell-line was estimated at

more than USD � billion. 23 Moore filled a lawsuit against the doctor and

demanded the return of the cells and control over his body parts. However, the

Court was of the view that to grant to the ‘donor’ of an organ the intellectual

property in anything developed from it would inhibit research of this kind. At the

end, the California Supreme Court decided that he was not entitled to any rights to

his own cells after they have been removed from his body.

21 Ibid., p. 9. 22 Ibid., pp. 10-11. 23 loc. cit.

20

Hybrid maize

As opposed to other cases mentioned, hybrid maize becomes an anti-thesis to the

concept of biopiracy and the problems it might bring. This is because it was one

of the first examples of genetic theory successfully applied to food production and

interest allocation. Maize growing farmers often face problem of inconsistency of

the quality of farm-saved seed. This is mainly because of the genetic composition

of maize plant grown from farm-saved seed that is prone to change considerably

from generation to generation. Farmers who want to be certain of maintaining a

high level of genetic purity need to purchase fresh seed for each cropping cycle.24

However, the hybrid maize introduced about two decades ago helped solved the

problem of the inconsistency of maize seed while multiplying their harvest.

According to many reports, hybrid maize helped improve household income,

measured by consumption expenditure and enhanced nutrition and well being of

children.25 The hybrid maize seeds, which are being used by a large number of

farmers in India over the past five years, has proved a boon to the farmers. In

India, the “Kanchan Ganga” hybrid maize seed has transformed the economy of

the farmers who were reluctant to use the seed when it was launched. These seeds

had given a boost to the rural economy. In an interview, Nasib Chand from the

24 M. Morris, M. Mekuria and R. Gerpacio, “ Impacts of CIMMYT Maize Breeding

Research,” in R.E.Evenson and D. Gollin eds. Crop Variety Improvement and Its Effect on Productivity: the Impact of International Research. Wallingford: CABI Publishing, 2003. pp.135-158.

25 Shubh K. Kumar. “Adoption of Hybrid Maize in Zambia: Effects on Gender Roles, Food Consumption, and Nutrition,” Research Report 100.����. <http://www.ifpri.org/pubs/abstract/ abstr100.htm> accessed on 17 Sept., ����.

21

Lohara village said he was fortunate to have used Kanchan Hybrid (KH-9374)

seed of maize and that the new seed was likely to double his yield.26

2.4 The effects of biopiracy

It is evident from the prior section that many of these cases involved what could

be called biopiracy. It is feared that these phenomena may cause damage to

developing countries. There is no significant factual support in saying that

biopiracy causes serious damage to the economy of any countries. However, it

does have several potential effects to the societies of the developing countries as a

whole.

Firstly, the stealing of biological resources and indigenous knowledge, as accused

by Shiva, would affect food security, livelihood of indigenous people, and

consumers’ choice.27 Since seventy percent of our food supply is based upon a

small number of crops, primarily wheat, maize, rice, and potato, which are

fundamental to food security, patenting of these plants varieties will definitely

post threat to consumers.28 Many countries fear that this will happen, so most of

them limit or prohibit the patenting of biological materials. For example, the

European Patent Convention of �� stated that no one could patent whole plant

varieties.

26Medhi, “Hybrid maize seed a boon for farmers,” The Tribune Online Edition. Sept 1., 2001 <http://www.tribuneindia.com/2001/20010902/himachal.htm#1> accessed on 17 Sept., 2003.

27 Vandana Shiva, Biopiracy : the plunder of nature and knowledge Boston, Mass. : South End

Press, 1997.pp. 7-18. 28GRAIN, Patents and Pirates, ����. p. 1.

22

Secondly, the patenting of biological technology will encourage monopoly control

of plant material by Western transnational corporations.29 Farmers will become

dependent of on corporations for their input in agriculture, i.e. seeds, fertilizers,

pesticides and herbicides. This will destroy an old practice of local seed saving the

forms the basis of food security.30 The new technologies and system mean no seed

and no food unless you buy more seed. Monopoly control on seed linked with

corporate control over agriculture will lead to large scale vanishing of farmers’

varieties, therefore threatening biodiversity conservation as well as farmers’

survival.31 Moreover, intellectual property rights (IPRs) of seeds and plants will

increase the national debt and the nations dependency on institutions like the IMF

and the World Bank.32 Conversely, this argument has been rebutted by the success

of hybrid maize in poverty alleviation. There are only two concern left for this

matter; first is the lack of access to such seeds and second, the threat of over

supply costing the devaluation of such products.

Thirdly, Shiva argues that the patenting of biological resources will also

encourage the enclosure of biodiversity and knowledge. 33 Water resources are

being enclosed through dams, groundwater mining and privatization schemes and

now it is the turn of biodiversity and knowledge to be enclosed through IPRs.34

29 Vandana Shiva. 1997. pp. 7-18. 30 Ibid., pp. 43-64 31 Ibid., pp. 65-86. 32 Vandana Shiva, 2001.pp. 49-68.

33 loc. cit. 34 loc. cit.

23

It is understandable why Shiva adopts such critical standpoint about the patenting

of biological materials. Patenting of biological resources is undeniably a

controversial issue, as mentioned in the earlier chapter, it does bring a lot of

debate on the ethical and political grounds. Ethically, it has triggered the problem

of patentability of biological matters. This is a highly controversial matter of

whether any individual, groups of individuals, or corporations can, in fact, own

biological organisms and benefit from the exclusive rights that derived from the

patenting of that material. Biotechnologists and corporations have rationalized the

patenting of biological material by proving that the subjects of their patent are

novel and cannot be found in nature. But the supporters of this concept would

argue that shifting a few genes around and adding some foreign genes into another

host should be counted as novel.

In politics, biopiracy has triggered the problem of the intrusion of national

sovereignty when a corporation or a government from another countries utilizes

and benefits from the patenting of genetic resource which derived from genetic

resources and/or indigenous knowledge from another sovereign state. This has

violated the international merit of a state’s sovereign rights on its own resource.

However, this concept of national sovereignty over the biological resources also

24

runs against the concept of the common heritage of mankind which was also been

recognized as a norm in this field.35

Economically, biopiracy has triggered the problem of economic monopoly,

intellectual property, and economic equity. This patenting of a certain processes

and genetic material will block other parties from utilizing that material or

process. This has resulted in the monopolization of trade, which is ultimately

against the principle of free trade fostered by the World Trade Organization

(WTO). Moreover, there is also fear that it would create a barrier in further

research in the biotechnological field, the lost of which might overweigh the gain.

In addition, it is exceptionally difficult for developing countries to challenge a

patent because of the high cost and the rapid increase of biopiracy cases. And the

most important is that some challenges might not be successful.

Legally, it has triggered the problem of proprietary rights in biological materials

such as the difficulty in distinguishing invention and discovery, while socially, it

has triggered the problem of the abuse of collective rights of community and

indigenous knowledge.

In summary, biopiracy refers to the situation in which industrialized/developed

countries gain patents of the biological and genetic material, i.e. plants and animal

DNA, and indigenous knowledge from communities in the gene-rich developing

countries without the proper appropriation of benefit for the source owner.

Biopiracy has become one of the concerns faced by developing countries because

it poses threats to the economy of many people in those countries. It also raises the

35Anthony J. Stenson. “Introducing the Politics of Genetic Resource Control,” in Anthony J.

Stenson and Tim S. Gray eds. The Politics of Genetic Resource Control. Basingstoke: Macmillan Press, 1999. pp. 1-7.

25

question of equality between the developed and the developing countries and the

dependency of the developing countries to the developed countries in the

international level. The issue of biopiracy, as it involves with the patenting of

biological materials, contributes to many questions related to that issue. For

example, how can genes be new? How can an individual ‘invent’ a plant? What

about the centuries of work of farmers and others who bred the desired traits in the

first place? And most importantly: what does the granting of these patents mean

for farmers and for local, national and global food security? The question of the

patenting of biological material will be discussed in the next chapter.

26

Chapter 3

Intellectual Property Rights and Biological Material ��� Intellectual property rights protection of biological material

Intellectual property refers to creations of the mind. 36 It includes inventions,

literary and artistic works, and symbols, names, images, and designs used in

commerce. Intellectual property is subdivided into two categories. The first

category is industrial property, which includes inventions (patents), trademarks,

industrial designs, and geographic indications of source. And the second category

is copyright, which includes literary and artistic works such as novels, poems and

plays, films, musical works, artistic works such as drawings, paintings,

photographs and sculptures, and architectural designs.

The ultimate purpose of having Intellectual Property Rights (IPRs) is to encourage

innovation, creativity and knowledge dissemination in a commercial, industrial

context. It is common in developed countries and heavily supported by economists

and others from knowledge intensive industries. IPRs are an incentive for

research and development, particularly for sectors with high research costs, such

as the biotechnology sector.37 Other objective for IPRs includes: protecting rights

for inventors; rewarding the usefulness of the invention; promoting the disclosure

36 World Intellectual Property Organization (WIPO), “About Intellectual Property,”

<http://www.wipo.org/about-ip/en/> accessed on 17 Sept., 2003. 37 Frahana Yamin, Foundation of International Environmental Law and Development

(FIELD), Globalisation and the International Governance of Modern Biotechnology: IPRs, Biotechnology and Food Security <http://www.gapresearch.org/governenca/FYIPRsfinal.pdf> accessed on 5 May, 2003.

27

of information related to the invention; and encouraging technology transfer.38 In

the field of biological technology, IPRs has been used to protect biotechnological

inventions since the 1980s. Intellectual property protection system that is common

in biological material includes patent, plant breeder’s rights and trade secret.

A patent is a legal claim over an idea for an invention that gives the holder

exclusive rights to profit from it for a set number of years and bar others from the

unauthorized use, sale, or manufacture of the product or process claimed by the

patentee.39 Permission for public use of the invention is granted by paying the

patent holder licence or royalty fees. To be granted a patent, an application must

be able to prove that the material is (a) novel, it must be a new idea, not known or

used by anyone before; (b) useful, the patent application must explain what the

invention is to be used for and why; and (c) non-obvious, it must involve an

inventive step.

Most national patent laws exclude from protection abstract or non-embodied ideas

and statements such as formulas and methods of conducting business. Some

exclude items offensive to public morals. Others exclude particular products or

technologies, often out of concern for public welfare. This explains the large

number of countries that prohibit patents for pharmaceutical products and other

medical applications. Still, other systems exclude agricultural applications in total,

or living organisms such as seeds and animals. Anyhow, many industrialized

38 �� �������5)*6�������"�2("�$����)�7��85�����"� ������������962�7::����'�:�6�0�

����� �� '�)����������;����<�(1����������,-=>0��� [Pinadda Rattapat, Patent Protection of Biotechnological Inventions, ML Diss. , Chulalongkorn University, 1995.]

39 Harold C Wegner, Patent Law in Biotechnology, Chemicals, and Pharmaceuticals. � ed

.New York: Stockton Press, 1994. pp. 1-7.

28

countries already permit patents on biotechnological inventions and

microorganisms.

A patent protects its holder against subsequent discovery of another way to

produce or use the patent product. The patent holder is entitled to enforce that

right against unauthorized use e.g., by means of legal proceedings. Typically a

patent is granted for 17-20 years and it can be traded or licensed like other forms

of personal property. A patent is territorial (protection applies only in countries in

which a patent is held), so firms are free to use technology patented elsewhere.

The situation changes when a firm attempts to export manufactured goods into a

territory where the process used in manufacturing are protected by patent. Many

national patent laws restrict the importation of the direct products of a patent

process. Recent U.S. legislation goes further in permitting restrictions on direct

products of patented processes.40

Plant breeders’ rights (PBRs) are a patent-like form of protection originally

intended to cover traditionally bred plants varieties. 41 The major differences

between PBRs and patent is the scope of protection and the limitations on the

rights of the holder. To obtain protection, the applicant must show that the

submitted plant variety is (a) stable (that it can be reproduced repeatedly) (b)

homogenous (that important characteristics are uniform across a single planting)

and, most important, (c) clearly distinguishable from existing varieties. Most

40 William Lesser , “An Overview of Intellectual Property Systems,” in Wolfgang E. Siebeck,

Robert E. Evenson, William Lesser, and Carlos A. Primo Braga. eds. Strengthening Protection of Intellectual Property in Developing Countries: An Survey of the Literature. Washington, D.C.: World Bank, 1990. pp. 5-16.

41loc. cit.

29

national variety-protection authorities (but not those in the US) plant varieties and

perform statistical tests to determine distinguishability. Protection is granted for a

minimum of � years. A longer period applies to trees and vines. PBRs are subject

to what are known as the farmers’ exemption and the research exemption. The

farmers’ exemption gives users the right to retain part of the harvest for

subsequent planting as seed. The research exemption permits breeders to use a

protected variety in subsequent breeding and to apply for protection of the

outcome as long as repeated use of the protected variety is not required. For these

reasons many plant breeders believe that PBR protection is not as strong as patent

protection.42

Trade secrets usually refer to a formula, pattern, device or compilation of

information which is used in one’s business. And this information gives the secret

holder an advantage over its competitors. One of the advantages of keeping trade

secret is that it is applicable for both patentable inventions and non-patentable

inventions. However, a trade secret can only protected from unauthorized

disclosure and use of the trade secret by others and from another person obtaining

the trade secret by improper means. The period of the protection varies; the

protection remains valid as long as the secret is not exposed. There is no expense

in keeping secret and there is no need to disclose any process like in the

application in patent system. 43 Many biotechnologists prefer this system of

intellectual property protection than patent because is it easier and cheaper than

obtaining a patent. But the shortcoming of this system is that it will not encourage

42 loc. cit. -��. 43 �� �������5)*6����,-=>0�4Pinadda Rattapat, 1995.]

30

disclosure of information regarding the invention and as a result, nobody can

benefit from the knowledge but the secret holder.

Another two related intellectual property protection systems that are related to

biological materials are trademark and geographical indication. This is important

as both of the systems will be discussed in the Basmati and Jasmati case in chapter

five and six. A trademark provides protection to the owner of the mark by

guaranteeing the exclusive right to use it to identify goods or services, or to

authorize another to use it in return for payment. The period of protection differs

and a trademark can be renewed for an indefinite period beyond the time limit by

paying some additional fees. 44 Trademark protection deters the efforts of

counterfeiters to use similar distinctive signs. A geographical indication, on the

other hand, is a sign used on goods that have a specific geographical origin and

possess qualities or a reputation that are due to that place of origin. Normally, a

geographical indication consists of the name of the place of origin of the goods. A

wide variety of agricultural products, such as, "Tuscany" for olive oil produced in

a specific area of Italy is a geographical indication. They may also highlight

specific qualities of a product which are due to human factors that can be found in

the place of origin of the products, such as specific manufacturing skills and

traditions, namely Swiss watch. That place of origin may be a village or town, a

region or a country. An appellation of origin is a special kind of geographical

indication, used on products that have a specific quality that is exclusively or

essentially due to the geographical environment in which the products are

produced. If a geographical term is used as the designation of a kind of product,

44 World Intellectual Property Organization. “Trademark,” <http://www.wipo.org/about-ip/en/> accessed on 17 Sept., 2003.

31

rather than an indication of the place of origin of that product, this term does not

function as a geographical indication.45

��� Patentability of biological material

Since 1980s, the patent system in the US, European countries, and Japan has been

gradually broadened to existing or genetically improved life forms. This has

basically been due to the rapid development of genetic engineering and the rise of

interest in the commercial use of genetic resources and wild species. Patent laws

require that a product has to be a new discovery and to involve a degree of

inventiveness. As a result, companies or individuals have been extracting and/ or

manipulating the chemical or genetic material or make organisms different from

their original form, allowing them to claim ownership and intellectual property

rights. Products that have been patented include microorganisms, staple crop

species, genetically modified organisms, cloned animals and human genes.

Generally, conditions for patentability of biological materials includes: novelty

(no prior publication and use), inventiveness, utility of industrial applicability and

sufficiency of description and disclosure. 46 The IPRs system for biological

materials differs between countries. For example, in a survey done by the OECD

45 World Intellectual Property Organization. “Geographical Indication,” <http://www.wipo.

org/about-ip/en/> accessed on 17 Sept., 2003.

46 R.S. Crespi, Patenting in the Biological Sciences. New York: John Wiley and Sons, 1982. pp. 32-3.

32

in the 80s asking countries the question “to what extent and under what conditions

does your patent law protect:

(a) Microorganism per se?

(b) Microorganisms as produced by a defined process?

(c) Microorganisms limited to a specific use?

(d) Processes of producing microorganism?

(e) Uses of microorganisms?

(f) End products produced by micro-organisms?”47

The answer to the above questions shows that there are similarities among

Australia, Canada, Denmark, Germany, Japan, the Netherlands, Sweden, the

United Kingdom and the United States in approving the patentability of

microorganisms subject to the normal criteria of novelty, inventiveness and utility

or industrial applicability. For example, Japan approved the patentability of all

categories from a-f including naturally occurring organisms subject to the

requirement of deposition in a culture collection if the organism is novel or not

easily available. But the microorganism must not be a mere discovery but one

made available by screening or any other artificial means. Claims for naturally

occurring organisms are prohibited in the US unless they are purified from the

natural source by human intervention. However, US law makes no distinction

between discovery and invention under 35 USC No. 101 of the patent law. UK

approved the patentability under categories a-f with the condition that category c

47 R.S. Crespi, “Biotechnology and Patent Protection: An International Review,” in F.K.

Beier, R.S. Crespi, J. Straus. eds. Biotechnology and Patent Protection: An International Review. Paris: Organisation for Economic Co-operation and Development (OECD), 1985. pp. 48-52

33

would be restricted to new microorganisms. Under the UK law an old material

cannot be patented per se on the basis of a new use or newly discovered property.

The law permits the protection of microorganisms found in nature only if they

involve human intervention. Discovery is not patentable but isolation of a

naturally occurring organism previously unknown from its surroundings might

constitute patentable invention. Australia accepts the patentability of category a-f

but excludes claims to naturally occurring organisms. New Zealand also confirms

the patentability of microorganisms as long as they are not natural products and a

reproducible process is available. 48

Many countries have, until very recently, some exclusion of some or all of the

following:

1. Substance produced by chemical methods.

2. Medicines

3. Food

4. Mere mixtures of foods or medicines

However, processes for preparing chemical substances, medicines, or foods are

patentable and products made by defined process are also protected in many

cases.49 Mostly, countries may exclude from patentability on materials that, once

becoming patentable, would affect the morale and public order or create damage

to the life and heath of their citizens.

48Ibid. pp. 48-52. 49 R.S. Crespi, 1982. pp. 32-3.

34

3.3 Controversy of IPRs in biological materials

Some fundamental questions have been raised when more and more patents on

biological materials had been approved in the last two decades. These questions

include:

1. “Can we abide by a patent system that allow a few giant companies monopoly

control over the world’s genetic resources?

2. Should farmers need a license to grow crops?

3. Should body parts be patented?

4. Should Western scientists get ownership rights over indigenous peoples’ and

rural communities’ traditional knowledge, crops and medicines?

5. Should these peoples’ countries be forced to acknowledge such ownership?

6. Are living being no more than strings of DNA with potential industrial

applications?”50

The patent system in biological materials and biotechnology fostered by

developed countries was perceived as the mechanism of biopiracy by developing

countries. The nature of the issue of patenting in biological inventions is

somewhat controversial, but worth studying. Below is a review of reasons from

both the proponents and opponents of patenting in the biological materials.

50 Genetic Resources Action International, Patents and Pirates. �ed. Barcelona: GRAIN,2000.

35

Most proponents for the patenting of biotechnological inventions and materials

comprise of biotechnologists, biotechnology companies, lawyers such as R.S.

Crespi, and governments of developed countries such as the US, UK, Japan, etc.

The most important argument of the proponents is that the patenting biological

resources encourage inventiveness in the biotechnology. Secondly, patenting of

biological inventions induce the needed investments to develop and

commercialize the invention. They also argue that if the material was left

untouched, there will be no invention at all. Thirdly, basic requirement of

sufficient description and disclosure for patenting of biomaterial will guarantee

exposure of related information. In addition, Inventors have their right to protect

personal possessions and property and inventors have the right to protect their

ideas from being exploited by others. New processes and products also provide

material benefits and enhance the quality of human life. It is also meritorious to

produce them more effectively by means of improved and patentable strains of

microorganism. For instance, OncoMouse is genetically programmed to be more

sensitive to carcinogens; hence, it is superior to previously used types of

laboratory mouse. This may mean that scientists may use fewer mice than

before.51 Furthermore, the parties involved, namely the donor country and the

receiving countries have to abide by the mutually benefit agreement as provided in

Article 15 of the CBD52 such as the one between Biotics Ltd and West African,

51 R. Stephen Crespi, “Part Five: The Case For and Against the Patenting of Biotechnological

Inventions,” in Sigrid Sterckx ed. Biotechnology, Patents and Morality. �nd edition. Aldershot: Ashgate Publishing Ltd., 2000. pp. 277-96.

52 CBD art 15 (1) ..in return for providing access to its genetic resources, a donor country should benefit through any of the three mechanism: participation in research art 15 (6), sharing the result of research and proceeds of commercial exploitation art 15 (7) and access to and transfer of derived technology. Art 16 (1). Art 16 (1,2,3,4,5). IPRs in donor countries will provide an orderly method of achieving such transfer and controlling unlicensed and unfair competitive activity, it will offer a strong inducement to the whole process of investment in research and development of the genetic resource and in the subsequent exploitation of the derived technology. loc. cit

36

South East Asian, and Australian source countries in Nov-Dec 1988 to promote

the phytochemical screening of these countries’ flora.53 And finally they believe

that through the process of research and development the source may receive aid

to technology transfer.

On the other hand, most proponents of the patenting of biological inventions

comprises of pro-South individuals, governments of developing countries such as

Thailand and non-governmental organizations such as the GRAIN and the

Etc.Group. Most of them argue on economic equity and ethical basis. In response

first to the inventive theory, they argue that it is not evident that if there is no

patent, there will not be scientific research. The economic return of Biotechnology

invention is high in itself; hence, a patent is not the only incentive for

biotechnological research. Secondly, according to the Human Development

Project Report of the United Nations Development Programme (UNDP) in 1999,

tighter intellectual property rights did not encourage multinationals companies to

carry out research and development in developing countries as R&D in developing

countries has dropped from six per cent in the mid-1980s to four per cent in the

mid 1990s.54 The number of public sector patents in biotechnology sold under

exclusive license to the private sector has also risen from just six per cent in 1981

to more that 40 per cent in 1990.55 This has rebuts the argument frequently

promoted for a uniform worldwide intellectual protection system promoting

investment research and technology transfer in developing countries.

53 loc. cit.

54 Vandana Shiva, 2001. p. 27. 55loc. cit.

37

Thirdly, intellectual property system also encourages private monopolies. In 1998,

giant life sciences corporation---pharmaceuticals, food, chemical cosmetics

energy and seed industries dominated 32 per cent of the 23$ billion seed industry,

35 per cent of the $ 297 billion pharmaceutical industry, 60 per cent of the $ 17

billion veterinary medicine industry, and 85 per cent of the $31 billion pesticide

industry.56 Moreover, industrial countries hold up to 97 per cent of all patents

worldwide. 57 Corporate sponsored research can create biased research,

inordinately favouring corporate sponsors and undermining the public interest.

The environment for the R&D in crop improvement is changing rapidly, both in

public and private sectors. Public- private sector relationship is also changing,

from the traditionally free distribution of public germplasm to the private sector,

to more restricted releases, including licensing agreements. Public institutions are

exploring opportunities to recover costs of R&D and to generate income for

student training through patenting of processes, plant genes and gene systems, and

varieties. 58 Furthermore, the traditional subject matter of IPRs has not been

designed for rewarding informal systems of innovation, creativity and knowledge

dissemination such as those practiced by collective groups such as farmers or

indigenous peoples.59 Finally, the concept of life would be viewed as a mere

56loc. cit. 57loc. cit. 58Calvin O.Qualset, Edward C.A. Runge and John J. Mortvedt, “Foreword,” Intellectual

Property Rights Associated with Plants. ASA Special Publication number 52, ����. p. vii.

59 Frahana Yamin, <http://www.gapresearch.org/governenca/FYIPRsfinal.pdf > accessed on 5 May, 2003.

38

collection of chemical substances that happen to be able to reproduce and can be

manipulated and owned.60

In summary, different countries or individuals have different perspectives in

patenting of biological material depending on their position and interest. Most

developed countries favour the IPRs system in biological materials as they and

their companies can enjoy exclusive rights in that material. On the other hand,

most of the less developed, developing countries and pro-South individuals

oppose the concept of patenting of these materials because of the fear of being

monopolized by developed countries. Since it is a controversial issue, there is no

absolute right and wrong. The cost of R&D in biological technology is high;

hence, inventors deserve to receive some special reward for their invention.

However, if the materials are from another country or belong to a certain

individual, there should be appropriate compensation to the sources owner(s) as

well. Furthermore, the owner(s) of the resource should have the right to be

informed about the utilization of the materials. If this is met, there should be no

more biopiracy.

60 Luc Vankrunkelsven, “Part Five: The Case For and Against the Patenting of

Biotechnological Inventions,” in Sigrid Sterckx ed.Biotechnology, Patents and Morality. �nd edition. Aldershot: Ashgate Publishing Ltd., ����. ��-�.

39

Chapter 4

International Agreements and Biopiracy

In the past century, there have been many international initiatives in creating a

universal management system of biological resources sharing. Conventions and

agreements were drafted and signed by nations; however, most of them are

focused in the protection of proprietary rights of individuals over biological

resources. As a result, these agreements did not successfully achieve their goal in

creating a fair management system in governing matters such as biological

material. Furthermore, they did not help stem the fear of biopiracy. On the

contrary, some of them; for instance, the TRIPs agreement, even facilitated what

many viewed as biopirating. Therefore, it is important for us to study these

agreements.

��� International treaties The first agreement is the International (Paris) Convention for Protection of

Industrial Property signed on March 20, 1883, and entered into force on July 7,

1884. This convention, known also as the Paris Convention, establishes certain

basic rights for protection of property. World Intellectual Property Organization

was established to administer the treaty. It is concerned with a wide variety of

industrial patents. The importance of protecting biological inventions was

recognized in this Convention. The concept of protected industrial property was

also meant to include agricultural products such as wines, grain, fruit, cattle, etc.

The Act of London of June 2, 1934, of the Convention expanded the scope of

industrial property. Article I (3) specified that

40

“industrial property shall be understood in the broadest sense and

likewise to agricultural and extractive and to all manufactured or

natural products; for example, wines, grains, tobacco leaf, fruit,

cattle, minerals water, beer, flowers, and flour.” 61

The second agreement is the International Union for the Protection of New

Varieties of Plants 1961 or the UPOV. It is designed to achieve a high degree of

uniformity of national legislation on plant variety protection but flexible enough

to accommodate differences required for particular reasons in member countries.

Plant Breeders Rights (PBRs) have been recognized and practiced in the

Industrialized countries for many years. The most significant stipulations of

UPOV (1961) were as follow:

1. “The new variety must be clearly distinct from any other commonly known

variety,

2. The new variety must be homogeneous and stable,

3. The new variety was not previously offered for sale,

4. The new variety can be protected either by a patent or by a special title of

protection,

5. The new variety must be given a suitable varietal denomination,

61 World Intellectual Property Organization (WIPO), Paris Convention for Protection of

Industrial Property <http://www.wipo.org/clea/docs/en/wo/wo020en.htm> accessed on 5 May, ����. n.p.

41

6. The term of protection may not be less than 15 years, and for some species

(such as fruit trees, vines, forest tress and ornamental trees) the minimum period

of protection is 18 years.” 62

The Convention was revised at least three times up to 1991. It was useful in

providing protected varieties to plant breeders and farmers. However, to meet

breeders’ and farmers’ changing needs, the UPOV convention underwent a

significant change in 1991. It eliminated the breeder’s exemption from a variety

(called essentially derived variety that is predominantly derived from another

variety but retains the essential genetic content of the original variety) and also

removed farmers’ rights from this agreement.63

62 The International Union for the Protection of New Varieties of Plants (UPOV)

<http://www.upov.int/en/publications/conventions/index.html> accessed on 5 May., 2003. �?=�����@8<��"���� �� �A1(���71�&��)�7�B�&��2���%���'�C����'�:�6��D7�

"�#�$�1(�����"2�.��(��"��E�����3� ������ �!� �6�'��(��,-.-0�[Jakkrit K., International Law Related to Copyrights, Patent and Trademarks. �rd ed. Bangkok: Nititham Publishing, 2002.]

42

Table 2 Comparison of PBR under the UPOV Convention and Patent Law

Provisions UPOV 1978 UPOV 1991 Patent Law Protection Coverage

Plant varieties of nationally defined species

Plant varieties of all genera and species

Inventions

Requirements Distinctness Uniformity Stability

Novelty Distinctness Uniformity Stability

Novelty Inventiveness Non-obviousness Industrial application, usefulness

Protection term Min. 15 Yrs. Min. 20 Yrs. �-�� Yrs. (OECD)

Protection Scope Commercial use of reproductive material of the variety

Commercial use of all material of the variety

Commercial use of protected matter

Breeders’ exemption

Breeders free to use protected variety to develop a new one

Allowed at the option of the member country within reasonable limits and subject to safeguarding the legitimate interests of the right holder.

No

Farmers’ privilege

In practice: yes. Up to National laws

No

Prohibition of double protection

Any species eligible for PBR protection cannot be patented

- -

National treatment

Limit national treatment and scope of protection to those members which also protect the genera and species chosen for protection (although TRIPs makes this obligatory for all WTO members).

National Treatment without exception

National Treatment without exception (TRIPs)

Sources: Jayashree Watal IPRs in the WTO and Developing Countries. The Hague: Kluwer Law International, 2001. ���-�.

43

The third agreement is the Convention on the Unification of Certain Points of

Substantive Law on Patents for Invention or also known as Strasbourg

Convention. Signed in November 1963, the agreement expresses the basic and

now common requirement for the patentability of an invention, namely, that it

must be susceptible of industrial application, must be new, and must involve an

inventive step. Many other features of this convention have been incorporated into

the European Patent Convention, notably the definition of the state of the art

against which the degree of novelty and inventiveness of the subject matter of a

patent application must be judged. The exclusion of plant and animal varieties

from patent protection also stems from this Convention.64

The Patent Co-operation Treaty (PCT) came into force in 1978. It is open to

membership by any member of the Paris Convention. The main objective is to

simplify the foreign filing of patent applications and reduce the cost by avoiding a

duplication of multiple filings. After completing an international search, each

search report and a copy of the application are distributed to the patent office in

each member country by the World Intellectual Property Organization (WIPO) in

Geneva.

The Budapest Treaty on the International Recognition of the Deposit of Micro-

organisms for the Purpose of Patent Procedure became effective on August ��,

����. It is open to membership for member countries of the Paris Convention. Its

major aim is to provide recognition, for the purpose of their own patents, by the

member states of a deposit of the microorganism strain which is made in another

64WIPO. The Patent Co-operation Treaty (PCT) <http://www.wipo.org/pct/en/> accessed on 5 May, 2003.

44

country of the Treaty. Its provisions include a series of International Depository

Authorities (IDA) which are depository institutions located in a member state and

are recognized by the appropriate national or international organization that the

institution guarantees compliance with a number of regulations as required by the

Treaty. Provisions cover viability tests, secrecy, availability of samples to third

parties, and recognition by all member countries, etc.65

The International Undertaking on Genetic Resources for Food and Agriculture is

an international agreement under the auspice of the Food and Agriculture

Organisation (UN). The FAO Conference adopted it in 1983, as an instrument to

promote international harmony in matters regarding access to plant genetic

resources for food and agriculture. This agreement accepted the principle that

plant genetic resources are a heritage of mankind and therefore should be

available without restriction(Article 1).66 The ultimate aim of the agreement is to

ensure that plant genetic resources of economic and social interest, particularly for

agriculture, will be explored, preserved, evaluated and made available for plant

breeding and scientific purposes. It accepted the principle that plant genetic

resources are a heritage of mankind and consequently should be available without

restriction. It is monitored by the Commission on Genetic Resources for Food and

Agriculture (CGRFA). It touches on the same issues as the CBD, but specifically

on agricultural biodiversity and farming communities. The Undertaking set out

65WIPO. The Budapest Treaty on the International Recognition of the Deposit of Micro-

organisms for the Purpose of Patent Procedure <http://www.wipo.org/treaties/notifications /budapest/0141.html> accessed on 5 May, 2003.

66 Resources for Food and Agriculture, The International Undertaking on Plant Genetic

Resources The Commission on Genetic <ftp://ext-ftp.fao.org/ag/cgrfa/iu/iutextE.pdf> accessed on 5 May, 2003.

45

conditions for free access and benefit sharing as well as farmers’ rights. It is now

under review by the FAO to make it consistent with the Convention of Biological

Diversity.67

The Convention on Biological Diversity (CBD) was negotiated before the United

Nations Conference on Environment and Development (UNCED) was held in Rio

de Janeiro in 1992. It became effective on 29 December 1993. The agreed text of

the CBD was adopted by governments in Nairobi in May 1992 and signed by ��

governments and European Union in June that year. The objectives of the

Convention are conservation of biological diversity, the sustainable use of its

components and fair and equitable sharing of benefits arising out of the utilization

of genetic resources, including by appropriate access to genetic resources and by

appropriate transfer of relevant technologies. 68 The CBD became effective on

December 29, 1993. It emphasizes that states, in accordance with the Charter of

United Nations and the principle of international law, have the sovereign right to

exploit their own resources in a sustainable manner. Another important provision

of the convention is the Article 8 (j) which provides that, subject to national

legislation, the knowledge, innovations and practices, in other word, knowledge

and technologies of indigenous and local communities shall be respected,

preserved and maintained, and that access to these knowledge and technologies

shall be obtained only with the prior informed consent and involvement of the

communities. It seems that the CBD has become and international forum for

67 Ibid. 68 Secretariat of the Convention on Biological Diversity 2002, Convention of Biological

Diversity. <http://www.biodiv.org/convention/articles.asp> accessed on 2 Aug., 2002.

46

developing countries to bargain for their interest in terms of biological resources

sharing and to counter the TRIPs Agreement.

The last agreement is the Agreement on Trade-Related Aspects of Intellectual

Property Rights (TRIPs). It provides minimum standards for member countries in

most forms of intellectual property.69 Under the TRIPs agreement, all member

countries must treat nationals of other member countries as they treat their own,

without any discrimination. TRIPs also obliges members to either provide

protection for plant varieties either through patents or through an effective sui

generis law or any combination of the two. It further requires the patenting of

microorganisms and microbiological and non-biological processes for the

production of plants and animals. Nonetheless, it allows the exclusion from

patents of plants and animals and essentially biological processes for their

production. The Agreement, in addition, mandates a minimum level of protection

of commercial marks such as trademarks and geographical indications. TRIPs

became not only the most influential forum in trade bargaining, but it has gone

further in setting norms for the patenting in biological materials and technologies.

69 There are seven categories of intellectual property or property in the products of the mind

that are covered by the TRIPs agreement. These include:

1. Patents 2. Industrial design 3. Trademarks 4. Geographical Indications or Appellations of Origin 5. Layout designs (topographies) of integrated circuits 6. Undisclosed information or trade secrets 7. Copyrights, covering literary, artistic, musical, photographic and audio visual works. World Trade Organization. Agreement on Trade-related Aspects of Intellectual Property Rights.

< http://www.wto.org/english/docs_e/legal_e/27-trips_04_e.htm> accessed on 18 Jan., 2002.

47

According to the transition arrangement, developing countries were expected to

implement TRIPs by 1 Jan 2000. Least Developed Countries can implement

TRIPs by 1 Jan 2005 (now changed to 2016). Developing countries also have up

to 1 Jan 2005 to introduce patents in areas of technology which were not protected

by product patents, such as drugs and pharmaceuticals in India under the 1970

Patent Act.70

��� Biopiracy through trade

As seen in the above examples, international initiatives such as the UPOV,

Budapest Treaty, International Undertaking, and the CBD are directly attributing

to create a fair management system for intellectual property and biological

resources; nevertheless, they differ in details and even in objective. The CBD

seems provide the most efficient management system for biological resources but

it is override by the Paris Convention which deals mainly with industrial

properties and the TRIPs Agreements which focus on trade issues. The TRIPs

Agreement has also been seen by developing countries as instrument for

biopirating as it provide the basis for the patenting of biological materials without

addressing the appropriation of benefit derived from the materials for the source

donor and the compensation for damages caused by such IPRs. However, there

were break through in the review of the TRIPs agreement in 1999 and the Doha

WTO Ministerial Convention in 2001 on the issue for it was the first time that

developing countries have been able to articulate the agenda. After the reviews,

TRIPs has to be in harmony with the CBD.

70 Vandana Shiva, 2001.pp.113-133.

48

A series of trade liberalization have been fostered by the GATT and WTO after

the Second World War. The liberalization of international trade intensified in the

1980s since the development of the General Agreement on Trade and Tariff

(GATT). This trend has further increased after the establishment of the World

Trade Organization. Under the WTO, member countries are required to abide by

the free trade regime, that is to minimize their trade barriers and treat other

nationals as equal to their own nationals (national treatment). It also obliged

members to adopt a neo-liberal approach in economic management. Neo-

liberalists believe that close economic contact between developed countries with

the developing periphery is the best way to accelerate the transfer of technology

which is the crucial condition for making poor economies rich. And all barriers to

international trade should be eliminated. Furthermore, they advocate that

governments, in general, lack the capacity to run large industrial and commercial

enterprises. Hence, except for core missions of income distribution, public-good

infrastructure, administration of justice, and a few others, governments should

shrink and privatize. Neo-liberalism is often identified with a number of global

organizations, including the WTO, the World Bank and the IMF, which are

influential, and play important roles in funding developing countries.

However, imposing trade liberalization in developing countries implies that these

countries can no longer rely on protection mechanisms such as trade barriers to

protect their own economy. Foreign companies can enjoy the national treatment

and tax exception from these countries, while exploiting their existing resources.

Developed countries also demand others to respect their intellectual property

49

rights, a concept which has been conceptualized into the Agreement on Trade-

Related Aspects of Intellectual Property Rights (TRIPs). According to TRIPs, it is

obligatory for member countries to recognize that we need a multilateral

framework of principles, rules and disciplines dealing with international trade in

counterfeit goods and, furthermore, they have to recognize that intellectual

property rights are private rights. To secure their benefits, developed countries

extend their intellectual law to cover biotechnology. As many biotechnology

companies have to recover the cost of their research and development of new

inventions and their administrative cost, patents guarantee that they will be able to

hold exclusive rights to utilize their inventions for a period of time. It seems that

the developing countries are on a level playing field; they need to conform to

obligations set by developed countries which might not favour their interest.

TRIPs became not only the most influential forum in trade bargaining, but it has

gone further in setting norms for the patenting in biological materials and

technologies.

Article 27 of TRIPs requires that patents be made available, for both processes

and products, in all fields of technology. 71 Under Article 27.3 (b), plants and

animals, and essentially biological processes for their production may be excluded

from patentability. However, microorganisms and microbiological or non-

71 In Article 27 (�) of the TRIPs Agreement clearly stated that: “…, patent shall be available for any inventions, whether products or processes, in all fields of technology, provided that they new, involve an inventive step and are capable of industrial application.”

Inventions in all fields are patentable except Article 27 (3): “(a) Diagnostic, therapeutic and surgical methods for the treatment of humans or animals; (b) Plants and animals other than microorganisms, and essentially biological processes for the production of plants or animals other than non-biological and microbiological processes. However, members shall provide for the protection of plant varieties either by patents or by an effective sui generis system or by any combination thereof” World Trade Organization. Agreement on Trade-related Aspects of Intellectual Property Rights. <http://www.wto.org/english/docs_e/legal_e/27-trips_04 _e. htm> accessed on 18 Jan., 2002.

50

biological processes must be protected. While there is uncertainty as to the

definitions of certain terms such as ‘non-biological’ or ‘essentially biological’,

clearly, microorganisms and microbiological processes are not excluded from

patent protection despite resistance from some developing countries during the

TRIPs negotiations. But countries may also exclude from patents on inventions

whose exploitation that is necessary to prevent: provided such exploitation would

injure public order or morality; or human, animal, or plant life; or seriously

damage the environment. However, excluding inventions from patenting because

rights over them are considered immoral is not provided for.

Since under the Agreement members are bound to provide for the protection of

plants varieties, either by patents or by an effective sui generis system or by any

combination thereof, countries which at present do not protect plant varieties have

to develop their own systems of sui generis protection (literally means unique or

of its own kinds, but this is widely interpreted as an alternative forms of protection

to patent).72 Nevertheless, the term effective sui generis system is not very clear.

Developed countries are encouraging other countries to adopt the UPOV 1991 as

the option for the sui generis.

Lack of success in WIPO in negotiating for a tighter intellectual propriety rights

led to negotiations being shifted to the GATT and WTO, which was not a UN

organization and so was governed by quite different principles. This allows IPRs

72 South Centre, “Annexe: Implementation of the TRIPs Agreement in Developing Countries,”

The TRIPs Agreement: A Guide for the South. Geneva: South Centre, 1997.

51

to be linked to trade issues, despite objections for the South that IPRs is not trade

issue at all.73

Table 3 International Institutions and Their Current Activities

Institutions Current Activities WTO/TRIPs TRIPs implementation; Doha issues:

IPR/public health and geographical indicators, traditional knowledge IPR interface

WIPO Technical assistance for TRIPs, managing other IPRs treaties, IPR searches

UPOV Implementation of treaties dealing with plant breeders rights

FAO/ Commission on Genetic Resources for Food and Agriculture

Plant Genetic Resources Treaty; management of ex situ collections.

UNCTAD Technical assistance; policy analysis; educational material on IPR/ developmental issues

UNDP Capacity-building on IPR/ developmental issues

UN Sub. Commission on the promotion and Protection of Human Rights

IPR/ human rights linkages

Convention on Biological Diversity CBD

Traditional Knowledge; access to genetic resources/ IPR linkages

World Bank Nexus between development and knowledge- based economies

European Patent Office Assessing patent claims EU Implementation of EU Biotechnology

directive; establishment of community patent system

Organization for African Unity/ African Union

Model law on protection of rights of local communities, farmers, traditional breeders

Council of Europe Moral, ethical dimension of biotechnology/ IPRs

National Patent Offices: e.g. US, Canada, South Africa

Assessment of patent claims

Source: Frahana Yamin, 2003.

The US and the EU differed in their approaches to the patenting of biological

inventions at the negotiation process of the formalization of the TRIPs Agreement.

73 Frahana Yamin, Foundation of International Environmental Law and Development

(FIELD). Globalisation and the International Governance of Modern Biotechnology: IPRs, Biotechnology and Food Security. <http://www.gapresearch.org/governenca/FYIPRsfinal.pdf > accessed on 5 May, ����.

52

While the US believed that anything under the sun made by man, except human

beings, was patentable. On the other hand, the EU was struggling with strong

internal resistance to patents on living organisms. Since the debate had not yet

been settled in Europe, WTO members agreed to a minimal agreement while

committing to revisit this provision within four years from the entry into force of

TRIPs by 1999 especially for Article ��� (b).

As required by the TRIPS Agreement, the review of Article ���(b) began in

1999. The topics raised in the TRIPS Council’s discussions include:

�� “How to apply the existing TRIPS provisions on whether or not to patent

plants and animals, and whether they need to be modified

�� The meaning of effective protection for new plant varieties (i.e. alternatives to

patenting such as the ��� and 1991 versions of UPOV). This includes the

question of allowing traditional farmers to continue to save and exchange seeds

that they have harvested, and preventing anti-competitive practices which threaten

developing countries’ food sovereignty

�� How to handle moral and ethical issues, e.g. to what extent invented life forms

should be eligible for protection

�� How to deal with traditional knowledge and genetic material, and the rights of

the communities where these originate (including disclosing the source of genetic

material, and benefit sharing when inventors in one country have rights to

inventions based on material obtained from another country

53

�� Whether there is a conflict between the TRIPS Agreement and the UN

Convention on Biological Diversity (CBD)”74

The Doha Declaration says that work in the TRIPS Council on the reviews or any

other implementation issue should also look at: the relationship between the

TRIPS Agreement and the UN Convention on Biodiversity; the protection of

traditional knowledge and folklore; and other relevant new developments that

member governments raise in the review of the TRIPS Agreement. It adds that the

TRIPS Council’s work on these topics is to be guided by the TRIPS Agreement’s

objectives (Article 7) and principles (Article 8), and must take development fully

into account.75

In summary, there are many initiatives to create a universal system for biological

resource management. However, they have all been overridden by the TRIPs

Agreement or other bilateral agreements. The political and economical power

wielded by patents on life forms means that countries all over the world, and

particularly the biodiversity rich countries of the South, are coming under intense

pressure to adopt intellectual property rights laws through the harmonization of

world trade rules. This comes under the TRIPs agreement of the WTO, and would

force all member countries to acknowledge patents on life forms. Ultimately,

what these patents ensure are market monopolies and guaranteed profits from

food, drugs, and technology sales for a handful of individuals and not the source

74World Trade Organization, “The Review of the TRIPs Agreement,” <http://www.wto/trips

review.htm.> accessed on 5 May, 2003. 75Jayashree Watal, Intellectual Property Rights in the WTO and Developing Countries. The

Hague: Kluwer Law International, 2001. pp. ���-���.

54

communities.76 It is necessary to have a counter agreement that can help balance

this process. So far the CBD prove to be (is proven to be) a practical mechanism

in this respect. The CBD recognizes the right of the state and the indigenous

people while advocates for an equitable sharing of benefits derived from

biological resources.

76 GRAIN, Patents and Pirates. ����.

55

Chapter 5

Biopiracy in India India is one of the countries with most diverse biological resources in the world.

And because of this, it attracts foreign companies to explore these abundant

resources. India, like many other developing countries, is also facing the problem

of biopiracy. Some of India’s biological materials have been exported and

patented elsewhere. The reaction of the people in India to the threat of biopiracy is

strong since it could severely affect the livelihood of most of the Indian people

who are still living in the rural area and depending very much on agriculture and

indigenous knowledge. This chapter explores the problem of biopiracy in India

and the country’s reaction and counter measures for the problem.

5.1 Biopiracy cases in India Neem case

There are increasing “public awareness of the side effects of hazardous drugs and

the rise of strains resistant to antibiotics, the Western pharmaceutical industry is

increasingly turning to the plant-based systems of Indian and Chinese

medicine.”77 The Indian Ayurvedic texts refer to 1,400 plants, Unani texts to 342,

and the Siddha system to 328. Homeopathy uses 570, of which approximately 100

are Indian plants.78

77 Vandana Shiva, 2001. pp. 49-68.

78 loc. cit.

56

The Neem tree case is the prime example of Indian medicinal plant being pirated.

Azadirachtin is one of many active compounds present in bark, leaves, flowers

and seeds of the Neem tree or Azadirachta indica.79 The remarkable properties of

this compound have been utilized in India from ancient times in the form of

extracts of various kinds produced by Indian farmers and small industrial firms in

medicine and agriculture. Neem is mentioned in Indian texts written over 2,000

years ago as an air purifier and as a cure for almost all types of human and animal

diseases because of its insect- and pest-repellant properties.80 It is used on every

farm, in every house, almost every day in India. Research has shown that neem

extracts can influence nearly 200 species of insects, many of which are resistant to

pesticides. 81

A number of neem-based commercial products including pesticides, medicines

and cosmetics, have come into the Indian market in recent years, some of the

products are made by small-scale sectors; others, medium-size laboratories.

However, there has been no attempt by the local people to acquire proprietary

ownership for formulae because the 1970 Patent Act of India had, until very

recently, excluded agricultural and medicinal products from patent.

A US timber importer studied the curing properties of neem and began importing

neem seed to his company headquarter in Wisconsin since 1971. He successfully

extracted a pesticidal agent from neem extract called Margosan-O. In 1985, the

bio-pesticide derived from neem tree received clearance for the product from the

79loc. cit. 80 loc. cit. 81 Ibid., pp. 49-68.

57

US Environmental Protection Agency (EPA). The patent for the product was sold

to the multinational chemical corporation, W.R. Grace three years later. Since

then, many US and Japanese firms gained patents on formulae for stable neem-

based solutions and emulsions and other products. The W.R.Grace approached

several Indian manufacturers and offered to purchase their technology. The

company also convinced these companies to stop producing value-added products

and instead supply the company with raw material. The company, finally,

managed to position a joint venture with a firm called PJ Margo Pvt. Ltd to set up

a plant in India. The plant processes up to 20 tonnes of seed a day and also

established a network of neem seed suppliers in order to guarantee a constant

supply of the seeds at a cheap price. 82 In May 2000, a coalition of groups

successfully overturned the patent held by the US company, WR Grace and the

US Department of Agriculture over the Indian neem tree.83

Basmati rice

Basmati is produced largely in Punjab, Western India and in Pakistan. Basmati

rice has been one of the fastest growing export items from India in recent years.

The main importers of Indian Basmati are the Middle East (account for as much as

65 per cent), Europe (approximately 20 per cent) and USA (approximately 10-15

per cent).84 For India, the earnings from Basmati export have also been substantial.

82Loc. cit. 83 Genetic Resources Action International (GRAIN), “Patents on Life: the Final Assault on the

Commons” Patents and Pirates. 3rd ed. Barcelona: GRAIN, 2000. 84 Vandana Shiva, 2001. pp. 49-68.

58

In the year 2000-2001, India exported 850,000 tonnes of basmati and earned Rs.

21.42 billion (1 USD= 45 Rs. on 3 Sept. 2003).85 India accounts for about 70

percent of the world's Basmati production of 1.25 million metric tonnes. 86

It is evident that Basmati has been grown for centuries in the subcontinent. It has

evolved over centuries of observation, experimentation and selection by farmers

who have developed numerous varieties of the rice to meet various ecological

conditions, cooking needs and taste. Informal breeding and innovation have

resulted in the superior qualities of this rice and must therefore be recognized as

the contribution of the local farmers. Ironically, on 2 September 1997, Texas-

based RiceTec Inc. was granted patent number 5663484 for a new plant variety

that is a cross between American long-grain rice and Basmati rice. RiceTec has

claimed that the new varieties have the same or better characteristics as the

original Basmati rice and can be successfully grown in specified geographical

areas in North America. The patent of this invention is exceptionally broad and

includes twenty claims within it. 87 The patent covers the genetic lines of the

basmati and includes genes form the varieties developed by farmers. RiceTec has

already been trading rice under brand names such as Kasmati, Texmati and

Jasmati. RiceTec’s strain possesses the same qualities, long grain, distinct aroma,

85Oryza, Can we really patent heritage and cultural icon of an old civilization? Discussion on Basmati & its cloned Versions <http://www.oryza/biopiracy.htm> accessed on 25 Sept., 2003.

86Lal Quila, Lal Quila Basmati Rice. <http://www.lalqilla-rice.com/global2.htm> accessed on

25 Sept., 2003. 87 Vandana Shiva, 2001.pp. 49-68.

59

high yielding and semi-dwarf in stature same as the Indian traditional varieties of

Basmati.88

The government of India is particularly concerned about the patenting of Basmati

rice after a patent was granted on the use of a type of turmeric as a wound-healing

agent. The patent on turmeric was subsequently revoked after the Indian

government successfully challenged the patenting on the ground that the healing

properties of turmeric had been common knowledge in India for centuries.

An important question raised by this case is whether Basmati rice is a

geographical indication89 according to Article 22 of the TRIPs. ‘Basmati’ is a

long-grain aromatic rice originating in the sub-Himalayan region of the Indian

sub-continent. India and Pakistan. While focusing their attention on disputing the

patent claims, it has also alleged that Basmati rice is a geographical indication. At

stake are exports of Basmati rice worth $ 350 million from India and another $

250 million from Pakistan which may be affected if the American version

establishes itself through advertising in third country markets.90

88Ibid. pp. 49-68. 89 According to the Article 22 of the TRIPs Agreement, geographical indications are

“indications which identify a good as originating in a territory of a Member, or a region or locality in that territory, where a given quality, reputation or other characteristic of the good is essentially attributable to its geographical origin.”

World Trade Organization, Agreement on Trade-related Aspects of Intellectual Property Rights. <http://www.wto.org> accessed on 18 Jan., 2002. .

90Lal Quila, Lal Quila Basmati Rice. <http://www.lalqilla-rice.com/global2.htm> accessed on 25 Sept., 2003.

60

RiceTec claimed that Basmati is a variety of rice. This term, it is claimed, has

been used for decades in a generic way91 describing this variety from other sources

such as American Basmati, Uruguayan Basmati and Thai Basmati. Also,

according to TRIPs, Basmati is not the name of a geographical area because this

rice is now grown quite extensively in the Indian subcontinent and now even

outside the original sub-Himalayan region. Even so, we cannot deny that the

product’s reputation is inextricably linked to its region of origin, South Asia.

On the question of consumer deception, RiceTec clearly labels its product as

‘American type Basmati rice’, a practice prohibited under TRIPs only for

geographical indications relating to wines and spirits. The only way to resolve this

dispute is by taking the case to a court in the US on the allegedly deceptive use of

the name ‘Basmati’ or similar sounding trademarks by RiceTec. However, the

five-year limitation allowed under TRIPs Article 24.7 would apply on any request

to cancel or invalidate existing trademarks registered in good faith. No case has

been filed in the US so far by any interested party from the Indian subcontinent.92

By mid 2000, however, the Indian government decided to challenge some of the

claims of the RiceTec patent.93

91 Generic name cannot be patented according to the international norm of IPRs in biological

materials World Intellectual Property Orgainzation. Patentability. <http://www.wipo.patent.htm>

accessed on 25 Sept., 2003. 92 Jayashree Watal, “India,” Intellectual Property Rights in Agriculture: the World Bank’s role

in Assisting Borrower and Member Countries. Uma Lele, William Lesser and Gesa Horstkotte-Wesseler, eds. Washington, D.C.: The World Bank, 1999. p. 52-60.

93 Jayashree Watal, “Future Issues Related to IPRs in the WTO,” Intellectual Property Rights in the WTO and Developing Countries. London: Kluwer Law International, 2001. pp. 363-404.

61

Fortunately, world's largest importer of Basmati rice, Saudi Arabia and the UK,

recognize that Basmati rice is unique to Northern India and Pakistan. Furthermore,

the Agricultural and Processed Food Export Development Authority and Trade

Mark Watch Agency of India have managed to win the Basmati patent case in at

least 15 countries (including UK, Australia, France, Spain, Chile and the UAE)

out of the 25 or more countries.94

Both cases constitute biopiracy since both involve the patenting of biological

resources that, although having been modified, contains the similar properties of

the original. The curing properties of neem have been known for centuries in

India. The claiming of patents and exclusive rights of these properties for financial

benefits is proved to be unfair to the Indian people. In the Basmati case, RiceTec’s

action would really become a threat to the sales of Basmati rice from India,

affecting rice farmers in that country.

5.2 Indian Patent Law

Patent laws were first introduced in India in the 1856 as part of colonial rule. In

1911, the first Patent Act was enacted. The 1911 Act was the law in force at the

time of independence. It was amended in 1930 and 1945. In 1970, a new Patent

Act was enacted, shaped by 22 years of debate, discussion and review. The central

debates at the time of independence and after fifty years of independence remain

94 Ibid., 363-404.

62

the same, that is, the question of monopolies societal creativity and indigenous

production.

The most significant contribution of the 1970 Act is to have prevented monopolies

in the vital areas of health and nutrition by excluding food and medicine from

product patents. 95 Only process patents on methods of production of

pharmaceutical have been allowed. The Indian Patent Act, 1970, has excluded

large areas from patentability, including all methods of agriculture and

horticulture. In addition, the exclusion of product patents in the area of

agrochemicals was also ensured through Section 5a. This Act is in harmony with

public religious and moral sentiments in India, which view living things as god’s

creation; hence, should not be patentable.

However, by December 1999, the government of India amended the Patent Act of

1970 in accordance with the TRIPs Agreement. A series of Intellectual Property

Right (IPR) related legislation were enacted before the implementation of TRIPs

in 1 Jan 2000. These IPR legislations include: the Protection of Plant Varieties and

Farmers’ Rights Bill, 1999; the Trade Marks Bill, 1999; the Copyrights Bill, 1999;

the Geographical Indications and Marks (Legislation and Protection) Bill, 1999;

and the Design Act, 1999.96

95Section 3 (h) and (i) of the Patent Act 1970 expressly exclude from patenting “method of

agriculture or horticulture; or any process for the medicinal, surgical, curative, prophylactic or other treatment of animals or plants to render human beings or any process for a similar treatment of animals or plants to render them…” The Patent Office of India, The Patents Act, 1970 (39 of 1970) [As Amended By the Patents (Amendment) Act, 1999.] (As effective from the 1st January, 1995). <http://www.patentoffice.nic.in/ipr/patent/patAct1970-3-99.html> accessed on 8 May, 2003.

96 Vandana Shiva, “Democracy or Dictatorship?,” Protect or Plunder? : Understanding

Intellectual Property Rights. London: Zed Books, 2001.pp. 94-112.

63

The main objective of the Patent (Amendment) Act, 1999 is to remove the

exclusion of product patents in the areas of food, medicine and drugs. According

to the government, this has been necessitated by India’s obligations as a signatory

to the WTO. However, the Patent Amendment Act merely introduces new clauses

for exclusive marketing rights associated with product patent applications in the

area of pharmaceuticals and agrochemicals as required by the TRIPs treaty

without introducing new clauses for exclusion. The Patent (Amendment) Act,

1999, since it does not articulate new demarcation criteria for exclusions, it allows

the patenting of plants, plant products, plant characteristics, their genes,

biopesticides, biofertilizers, etc. The Act also gives Exclusive Market Rights

(EMRs) merely on the basis of foreign patents obtained on the basis of impact on

public health, public morality, or the public interest. The totally unrestricted scope

of patenting in agriculture under the 1999 Act will undermine Indian agriculture,

threaten Indian farmers and reduce food security.97

India’s pre-TRIPS IPR legislation, with its wide range of exemptions for the

agriculture, horticulture and pharmaceutical sectors, combined with India’s large

domestic market and its ability to export products in these areas, make India one

of the targets of US global efforts to tighten IPRs. The United States, has won a

WTO panel judgment against India in September 1997, claiming that India’s law

were not amended properly to allow this (lacking transparency, failing to amend

the Patent Act itself, etc.).98

97Loc. cit.

98 GRAIN “The International Context of the Sui Generis Rights Debate” in GRAIN eds. Signposts to Sui Generis Rights: Background Discussing Papers for the international Seminar on Sui Generis Rights. Bangkok: BIOTHAI, 1997. pp. 6-22.

64

In summary, Article 27.1 of TRIPs has undone the 1970 safeguard to prevent

monopolies by stating that patent right shall be enjoyable without discrimination

as to the place of invention, the field of technology and whether products are

imported or locally produced.

5.3 India’s reaction to biopiracy

India’s economy is largely dependent on agriculture since more than half of active

population (59.6 per cent) 99 is in the agricultural sector and agriculture

contributed 24.9 per cent of the country's GDP in 2001. 100 Once the economic

situation of farmers is threatened, the whole economy is endangered. In addition,

non-government organizations and the public views IPRs on biological materials

as threat to the food security and their indigenous knowledge.

Nonetheless, there are differences of opinions regarding the issue of biological

resources legislation. A number of state level agencies have prioritized

biotechnology as an industry of future. As a result, they advocate stronger IPR

standards. It is evident that in the case of 1999 Amendment Act favours the

inclusion of biological materials in IPRs. But on the whole, Indian government is

trying to find a balance between national interest and international obligations.

99 FAO, FAO Production Yearbook. Vol. 55-2001 p. 26. 100 World Bank, India at a Glance. <www.worldbank.org/data/countrydata/aag/ind_aag.pdf>

accessed on 28 Aug., 2003.

65

India has established a sui generis system for plant varieties, excluding plant

varieties and a wide range or related subject matter, such as seeds, from

patentability. The Plant Variety Protection and Farmers’ Rights Act ensures that

farmers are able to save, use re-sow, exchange, share as well as selling farm saved

seeds from protected varieties to neighbours in accordance with traditional

practice. India’s Ministry of Agriculture has drafted a Plant Varieties Protection

and Farmers’ Rights Act modeled on the 1978 version of the UPOV as a basis for

its legislation on plant varieties protection, and contains elements of UPOV 1991

(essentially derived varieties). 101 Apart from this significant farmer-friendly

provision, the Act allows establishing a system of registration by a wide range of

groups of existing (as opposed to new) farmers’ varieties thus making it possible

for farmers’ to gain compensation (through the establishment of a National Gene

Fund) when existing farmers varieties are used for making new varieties.102 The

Act also requires for full disclosure of the parentage of the new variety and giving

farmer access to such documentation free of change. Liability provisions are

included to protect farmers from harvest failures caused by supply of defective

seeds. Furthermore, farmers are also given some protection against breeders when

farmers, without knowing, use seeds protected by plant variety rights.

In terms of fostering community rights, the government enacted in December

1996 the new Provisions of the Panchayats (Extension to the Scheduled Areas)

101 GRAIN. “Resources Section,” in GRAIN eds. Signpost to Sui Generis Rights: Background

Discussion Papers for the International Seminar on Sui Generis Rights. Bangkok: BIOTHAI, 1997. pp. 74-123.

102 Loc. cit.

66

Act. This law forms amendment 73 to India’s State Constitution. The law provides

legal recognition to village communities (gram sabha) as the basic unit of self-

governing systems in India. Communities are now the basic political entities in

India and have specific powers bestowed upon them. These powers include

management of community resources, resolution of disputes, approval of plans

and programmes and mandatory consultation prior to acquisition of lands.

Communities also have mandatory powers regarding ownership of minor forest

produce, restoration of unlawfully alienated lands, and control over marketing.

Communities are also recognized as competent to safeguard and preserve the

traditions and customs of the people, their cultural identity, community resources

and the customary mode of dispute settlement. Villages are already using the

provisions to establish local biodiversity registered to prevent monopolization of

their resources under any IPR regime in India in accord with Article 8 (j)103 of the

CBD.

In the international community, India plays a very strong role in advocating

Farmers’ rights. Also, India is on record as the only country that speaks up about

Farmers’ Rights in the WTO’s TRIPs Council. Indian NGOs are actively working

to construct a policy and legislative framework for farmers’ rights independent of

intellectual property. In particular, the climate of decentralization introduced

through the Panchayat Act and Amendment 73 of the Indian Constitution is

favourable to freestanding legal recognition of Farmers’ Rights in India.

103 Article 8 (j) states “subject to its national legislation, respect, preserve and maintain knowledge,

innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for the for the conservation and sustainable use of biological diversity and promote their wider application with the approval and involvement of the holders of such knowledge, innovations and practices, and encourage the equitable sharing of the benefits arising form from the utilization of such knowledge, innovations and practices;…” WTO, TRIPs Agreement.

67

In 1996, India demanded an amendment to Article 29104 of TRIPs in the WTO

Committee on Trade and Environment to incorporate adequate disclosure of

country of origin of the biological resources or traditional knowledge. In recent

discussions, India extended its demand to obtaining prior informed consent (PIC)

for the concerned country of origin before patent application are filed. They argue

that TRIPs has no legal basis for benefit sharing. Furthermore, without access to

the knowledge of patent applications filed, no opposition proceedings can be

planned or contracts negotiated on mutual agreed terms.

Developed countries argue that disclosure or origin is already required by most

patent offices but then it is difficult to obtain PIC at the initial stage of patent

application, when the commercial value is not clearly known. In addition, there

are problems in correctly identifying the country of origin, particularly in the area

of plant genetic resources. Lastly, this is a cumbersome way of obtaining fair and

equitable sharing of benefits as this can be done directly through contracts

between the interested parties.

Internationally India has raised concerns about the excessive broad scope of patent

protection. Although it has argued that it would be preferable to exclude all life

forms from patentability until there is a substantive review of Article 27.3 of the

TRIPs Agreement, its domestic implementation has undercut its international

104 Article 29 Conditions on Patent Applications 1. Members shall require that an application for a patent shall disclose the invention in a manner

sufficiently clear and complete for the invention to be carry out by a person skilled in the art and may require the applicant to indicate the best mode for carrying out the invention known to the inventor at the filing date or, where priority is claimed, at the priority date of the application.

2. Members may require an application for a patent to provide information concerning the applicant’s corresponding foreign applications and grants. Loc cit.

68

position by allowing for such patent as it is mandatory under TRIPs, India has to

introduce patents for microorganisms and also for microbiological processes.

However, India believes it should be left to national policy to decide what

microorganisms are patentable.

Indian traditional knowledge has been the subject of NGO and governmental

challenges to IPRs; the Neem Tree case and Basmati Rice cases are good

examples. India’s new patent law’s merit is that it provides exclusion to any

invention which constitutes traditional knowledge or derives from traditional

knowledge from patentability. These provisions give legal substance to India’s

positions on traditional knowledge at the WTO and the CBD and also backs up the

provisions introduced in its Biodiversity Act, which regulates access to India’s

genetic resources. The Biodiversity Act provides that inventors making use of

Indian biodiversity must seek the prior approval (PIC) of the National

Biodiversity Authority for any applications for IPRs inside or outside India. The

Authority can oppose grant of IPRs outside India on any biological resources

obtained from India. It is one of the few examples where a developing country has

tried to create a framework for benefits sharing with linkages with its patent

system.105

105Frahana Yamin, Globalisation and the International Governance of Modern Biotechnology:

IPRs, Biotechnology and Food Security Foundation of International Environmental Law and Development (FIELD). <http://www.gapresearch.org/governenca/FYIPRsfinal.pdf> accessed on 5 May., 2003.

69

Chapter 6

Biopiracy in Thailand

The biodiversity of Thailand is considerable, although it is not as enormous as that

in India. It is one of the world’s largest exporters of food and agricultural products

and produces one of the finest rices in the world, the fragrant rice. However,

Thailand, like India, also faces the problem of biopiracy. As most of Thailand's

population is located in the countryside and the agriculture population accounts

for 55.7 per cent of the total economic active population in the country in 2001106,

biopiracy has been proven to be a threat to the Thai economy and the livelihood of

its people. This chapter explores the problem of biopiracy in Thailand and the

reaction of the country toward this crisis.

6.1 Biopiracy cases in Thailand

Plao-noi

The most prominent biopiracy case of medicinal plant in Thailand is the plao-noi

case. Plao-noi or what it is called Croton sublyratus, is a plant that was used for

generations in curing many diseases. It was recorded in the “Samut khoi” or the

book made of palm leaves that inscribed many of the Thai indigenous medicines

similar to the Ayurvedic texts from India as medicine curing many diseases. The

106FAO. “Rice Production,” FAO Production Yearbook. Vol. 55-2001. p. 27.

70

properties of plao-noi derive from different parts of the plant, i.e. its flower was

used in de-worming and its skin is used to help digestion, etc.107

Between 1970-1974, plao-noi was listed in the report done by the cooperation

project between Japan and Thailand’s Ministry of Health. And this triggered the

interest of the Sankyo Company in studying the usefulness of plao-noi.

The search for the source of the plao-noi began in the end of 1973 after Mr. Anan

Laowpanich F$ � 6��1&��� ����G��the Thai representative of the Sankyo Company,

sent a sample of the plant to Japan for examination and later found that the extract

from the plant is useful in curing ulcers. Led by Dr. Okiso, a team of Japanese

researchers went to Thailand in search for the plant. They failed to find any supply

of the plant from local pharmacies so they had to expand the search to all regions

until it was later found planted in the Prachin Buri Province and Prachuap Khiri

Khan Province. They collected several samples from both provinces for further

study. It was evident that the most useful parts of the plant are its branches, root,

and stem. In addition, the plant form the Prachuap Khiri Khan was more

concentrated than the other one from the Prachin Buri. Finally, the extract was

named CS 684 which is effective in curing stomach and intestinal ulcers.

In 1983, Japan registered the plao-noi extracts with the World Health

Organization (WHO) under the name of Plaunotol and started to produce the

medicine.108�In the same year Mr. Anan and the company established the Thai

107 Larry Lohmann, “Who defends Biological Diversity?: Conservation Strategies and the

Case of Thailand,” Biodiversity: Social And Ecological Perspectives. Vandana Shiva, Patrick Anderson, Heffa Sch cking, et al eds. London: Zed Books Ltd., 1991. pp. 77-104.

71

Sankyo Company, and two years later, it granted the rights to produce the

medicine from the plao-noi extract under the name Kelnac for curing ulcers.

In 1986, the company constructed a plant for processing the leaves from Plao-noi

tree in Prachuap Khiri Khan province which had been handling 1700 tonnes of

leaves annually from the (7,000 rai) 1,120 hectare plantation. Now, the plantation

processes and exports extract from plao-noi to Japan. Ironically, Sankyo’s Kelnac

is sold exclusively in Japan market and has prohibited the sale of the medicine in

Thailand.109

It is clear from this case that the exclusive rights that Japan gained from the plant

is far greater than what Thailand derived from the company’s research,

development and investment. The company cultivates more than 1,000 hectare of

Plao-noi and markets the medicine derived using the name Kelnac. An estimate in

1987 of Sankyo’s annual earning from selling the drug is approximately USD 40

million.110 Thailand earns only a fraction from being the producer of the plao-noi

extract and salaries of the workers working in the plao-noi plant. Thailand would

gain nothing if the Company decided to shut down its plant in Thailand and move

to other countries with lower wages.�Moreover, It is evident that Plaunotol can

only benefit the developed counties or the rich as one tablet of this medicine cost

nearly one USD.��

108����������� ����������������������������� !�"�#$%&�����'���(�)*���+����,-./0�1 2��

-3/,0�4Witoon Lianchamroon, “Biopiracy,” The Research Program on Bio-piracy in Thailand. Bangkok: The Thai Network on Community Rights and Biodiversity, 1998. pp. 5-12.]

109 Ibid. pp. 5-12.] 110 GRAIN, Biopiracy, TRIPs and the Patenting of Asia’s Rice Bowl, May 1998.

<www.grain.org/publications/rice-en-p.htm> accessed on 9 Jan, 2002.

72

Jasmati

Another landmark case of biopiracy in Thailand is the Jasmati case. Jasmine rice

(Khao hom mali) is one of the most well known rice in Thailand. It earns Thailand

millions of dollars each year being exported to many places, especially to America

and the Far East countries such as Hong Kong, Taiwan, China. Jasmine rice

contributes to 20-25 per cent of the total rice export of Thailand.111 The US is

Thailand's biggest market for jasmine rice. Only the demand in the US market for

Jasmine rice from Thailand accounts for approximately 200,000 tonnes each

year.112

The first official record of the Jasmine rice was in 1945.113 It was collected from

Chon Buri Province and planted in Chachoengsao Province. After the Second

World War studies were conducted for the registration and rice improvement and

the sample no. 105 was recorded to be of best quality and gives desirable

fragrance.114 In 1959, the government started to distribute this variety to farmers

and encourage them to plan the 105-fragrant rice.

111 Department of Foreign Trade, Ministry of Commerce. 2002 <http://www.dft.moc.go.th/

document/grain> accessed on 24 Nov. 2002.

112Ibid. 113 $����6��%���$�����"��(1��1��������������� '���#���9 �$����6��%���$���$�((���

���(��(��$:������7 �"��:�0�"��(1��1��%$��� '���#��������!��H�:� ������#�$������I �)�7�B+����,-=>01 2��=3/J0�4Apichart Khaosaard��“Plant Biodiversity,” �Plant Biodiversity. Apichart Khaosaard��Ammarn Siamwala and Kobkul Rayanakorn. eds. Research Monograph No. 14.�Bangkok: Institute for Research and Development, 1995. pp. 3-10.]�

�114 ��������� �����������<�������������������"�����1 2��=,3-K0�[Witoon Lianchamroon��

�Important Biopiracy Cases”, 1998. p. 32-57.]

73

After the establishment of the International Rice Research Institute (IRRI) in the

Philippines in 1960, Thailand sent samples of rice varieties to the Institute and the

Jasmine 105 was known as sample no. 850.115 The institute made an agreement

with the FAO that it would protect the Thai rice variety when FAO encouraged

Thailand to send Jasmine 105 to IRRI for research.116 Samples of Thai varieties

were distributed to many other research institutes without the consent from

Thailand. 117 Thailand did not question the professionalism of the IRRI in

distribution of deposited varieties and Thailand was not prepared for the adoption

of IPRs on biological resources.

In September 1997, RiceTec Inc. won a trademark over a brand of rice called

Jasmati, described as a copy of the aromatic Thai Jasmine rice, a hybrid of

American grain and Thai jasmine rice from the IRRI in the Philippines. The

product’s package says it is the “Texas-grown copy of Jasmine rice from

Thailand.” 118 However, according to the DNA sequence of the Jasmati, no

common genetic similarities were found between the two varieties. Fortunately,

while RiceTec had obtained a patent for breeding Basmati, it did not have similar

rights over Jasmine rice. So far, its trademark covers the Jasmati brand but is not a

patent on the germplasm of Jasmine rice.

115Ibid., p. 41.

116Ibid., p. 41. 117Ibid., p. 41. 118Prangtip Daorueng, U.S. “Patent” on Thai Jasmati rice! Bangkok, May 13. <http://users.

westnet.gr/~cgian.htm> accessed on 17 Jul., 2002. .

74

The Jasmati case had provoked a wave of anger among the Thai people. The Thai

government came out and reacted to this case by condemning these movements.

Furthermore, HM King Phumibol Adulayadej of Thailand wrote to the committee

of the IRRI expressing concern about the patenting of rice variety and the

adopting of the trademark, Jasmati. Thai NGOs also stressed that if it is true that

IRRI gave access to the Thai rice variety to the US Company, IRRI have to take

responsibility for allowing the original Thai strain to be exported to the US

because the Institute made an agreement with the FAO that it would protect the

Thai rice variety when FAO encouraged Thailand to send khao-hom-mali 105 to

IRRI for research. Anyone who requests germplasm from the IRRI must sign a

Materials Transfer Agreement (MTA) which compels researchers to inform,

consult and negotiate with the country where the seeds originated.119

The damage from the patenting of Jasmati is high. It took about fifteen years, and

further selection work, for Jasmine rice to develop a stronghold in the Isaan areas

of Thailand, particularly Thung-Kula-Rong-Hai, literally means the Weeping

Prairies of Kula.120 By now, the breeding efforts of Thai farmers and scientist have

resulted in more than 200 different lines of jasmine in the country. As much as

five million farmers in the Northeast provinces cultivate Jasmine rice and most of

them are resource-poor family, whose monthly per capita income does not exceed

119Noel Rajesh, And now, Thai Jasmine rice. <http://www.indiatogether.org/agriculture

/articles/noel_jasmine.htm.> accessed on 5 May, 2003. 120 BIOTHAI, “Thai People’s Movement Mobilized to Protect Jasmine Rice,” Thai

Development Newsletter: Community Collective Rights VS. Intellectual Property Rights. Thai Development Support Committee (TDSC). No. 34, January-June 1998. pp. 2-5.

75

the poverty line of 200 USD per year. 121 Their livelihoods depend totally on the

Jasmine rice.

However, the Thai government did not challenge RiceTec in adopting the

trademark of Jasmati because they said that it is too expensive. According to the

Thai government, Thailand would challenge the RiceTec patent on the ground that

the patent of the name Jasmati may create confusion and misunderstanding.

Both cases happened in Thailand is regarded as biopiracy cases because they

involved the patenting of biological material that has been used by the Thai people

for centuries without proper acknowledgement and compensation. Although the

Thai authority had approved the process of prospecting and researching in plao-

noi, it did not intend to give exclusive rights to foreigners in the curing properties

of the plant. For Jasmati, Thailand did not expect that the IRRI would sell their

deposited variety to private companies. These biopiracy contributed to potential

damages to the Thai economy. For example, by using the name Jasmati, RiceTec

deliberately misled consumers to understand that it is Jasmine Rice of Thailand.

And through this mean, MNCs can incrementally monopolized Thai Jasmine rice

market. 122

121 Ibid. p. 2.

122 ����������� �������D7�"<7���)*�������(�L��7�:6&$��������������D7���(�)*����2$�H�� ������� �����M:�:�(:��<��"��������'���(� D7���'���86���9 ����������������D7���(�)*����2$�H�� 0������� !���� ���� �$��� ��:� � � ����������,-..0��[Witoon Lianchamroon et al, “Factors effecting biological resources and indigenous knowledge,” Project for the Community Rights and Farmers’ Rights in biological resources and indigenous knowledge. Bangkok: The Thailand Research Fund, 2001. pp. 38-69.]

76

6.2 Thailand patent law As in India, the Thai community did not allow for the patenting of biological

resources. Thai people and governments in the past recognized biological

resources as common good and it is free for everyone to plant or research on the

plant. However, the IPRs concept of the industrialized countries undermined the

concept of common heritage of mankind and public domain. Biological diversity

and indigenous knowledge are becoming commodity of proprietary rights.

Patent Laws in Thailand are taken care by the Patent Office, a division of the

Department of Intellectual Property of the Ministry of Commerce. There are two

patent laws in Thailand, the Patents Act B.E. 2522 of 1979 and the amended

version, Patents Act No. 2 B.E. 2535 of 1992. A basic provision about

patentability is that naturally existing microorganisms and their components;

animals, plants or extracts from animals and plants; inventions contrary to public

order, morality, health and welfare are excluded from patentability.

Thailand had been pressured from the US to omit the exemption in the B.E. 2522

Patent Act, which in the Article 9(3) states that animal plants and process in

producing animals or plants are not patentable.

77

“The following inventions are not patentable in this Act:

1. process of producing animal and plant

2. products derived form animal, plant, microorganism

3. microorganisms and parts of microorganisms which cannot be found in nature

4. process for producing microorganisms and process which uses

microorganisms processing”123

Finally, in April 1992 the Patents Act B.E. 2522 of 1979 was amended. Some

changes had been made to the Article 9. In this version of the Patent Act the

following have been excluded from patentability:

“1. Microorganisms and part(s) of microorganisms found in the nature. Animals,

plants, or extract from animals or plants.

2. Animal, plants or process of producing animal or plant…” 124

It is clear that Article 9 (3) of the former Patent Act gave exemption to animal and

plants or biological process in producing animal and plants, while according to

Article 9 (1) the new version adopted in 30 September 2535 microorganism and

parts of organism found in nature animal plant and extraction from animal or

123 �� �������5)*6��0����"�2("�$����)�7��85�����"� ������������962�7::��

���'�:�6�0������ �� '�)����������;����<�(1����������,-=>0�[Pinadda Rattapat. Patent Protection of Biotechnological Inventions, Master of Law Diss., Chulalongkorn University, 1995.]

124 ��66��+���(:��<�0���"��71�D7)���:���:����I ����%$��7::���"�2("�$���

�#�0������ �� '�)����������;����<�(1����������,-=?0 [Kitti Thaisomboon. Analysis and Comparison of Development of Legal Protection System of Plants. Master of Law Diss. Chulalongkorn University, 1993.]

78

plants are excluded from patenability…(deleted the process clause). So does this

imply that the biological processes in the products related to animal and plant are

patentable?

6.3 Thailand’s reaction to biopiracy

Thailand brought about some changes to conform to the TRIPs Agreement. The

Thai government enacted a Plant Variety Protection Act to comply with Article.

27.3 (b) and commenced drafting of a PVP Act in early 1997 and was ratified in

1999. The drafting committee has representatives from NGOs representing

farmers’ interests. However, the provision of this PVP Act is similar to the UPOV

1978. Generally, it protects new varieties developed by companies and breeders

but exclude indigenous varieties that the local community had developed and

preserved from patentability.

Thailand has not ratified the CBD partly because of the fact that it does not have national legislation in place to govern access to genetic resources. Enforceable mechanisms to assert national sovereignty over biodiversity are considered a prerequisite to ratification of CBD, not the other way round.

Since, 1995, a working group under the Ministry of Health is drafting a bill on

Traditional Medicine and this was passed in November 1999. This Act laid down

conditions on access to traditional knowledge in the case of commercial use

(benefit sharing). This Act also promotes the use of traditional medicines to

substitute for the import of foreign medication. Moreover, the Ministry of Science

and Technology has also drafted a regulation or administrative order on access to

79

in situ and ex situ125 germplasm but it is heavily criticized since it is not an organic

law and cannot be applied to foreign private entities.

Thailand’s Plant Act of 1985 and 1992 regulates the import and export of

germplasm under the Cabinet, but it is used mainly to protect Thailand’s market

interests and is not a full-fledged law on access to genetic resources. It protects the

trade in plant varieties and seeds plus the production from seeds, sexually

produced plants and genetic engineering. This is different from the Plant Variety

Rights (PVR) and Plant Breeders Rights (PBRs) system in principle and objective.

PBRs emphasizes the proprietary rights in the plants produced and prohibit others

from utilizing selling importing exporting and producing them. But for the Thai

Plants Protection Act emphasizes more on the trade of plant varieties and the

quality of seeds.126

In addition to this, the Department of Science and Technology prepared a

regulation on access to biodiversity. The regulation would create a new

autonomous government body under the National Science and Technology

Development Agency with an Executive Board chaired by the Deputy Prime

Minister. Access contracts would be issued upon the prior informed consent (PIC)

of the agency, irrespective of ownership. Details have been worked out regarding

125(on-site and off-site) This refers to genetic resources inside and outside of their natural

habitat. The Crucible Group, “Glossary,” in People, Plants, and Patents: the Impact of Intellectual, Property on Biodiversity, Conservation, Trade, and Rural Society. Ottawa: International Development Research Centre, 1994. pp. 109-110.

126 ��66��+���(:��<�0���"��71�D7)���:���:����I ����%$��7::���"�2("�$���

�#�0������ �� '�)����������;����<�(1��������0 [Kitti Thaisomboon. Analysis and Comparison of Development of Legal Protection System of Plants. Master of Law Diss. Chulalongkorn University. (1993).]

80

how samples should be collected, fees, benefit sharing and participation of Thai

nationals in research. Many groups and agencies in Thailand, however, have

criticized this regulation, for not having an effective legal basis. A law on access

will be drawn up instead.

Elements of farmers’ rights are incorporated into the Plant Varieties Protection

bill. Elements incorporated in the bill to protect and promote farmers’ rights

covering the following:

1. Rights to access information related to bio-safety and research on plants

2. Benefit sharing for individuals and communities from access to genetic

resources

3. Participation in the board of the Committee for Plants Varieties Protection

4. Rights to be consulted (prior informed consent) on access to genetic resources

5. Rights to be plaintiffs in prosecution of misallocated IPR

6. Rights to reproduce protected plant varieties on the farm for non-commercial

purposes.

The Traditional Medicine bill and the draft of the Community Forestry bill are the

first bills institutionalizing community rights related to biodiversity in Thailand.

Thailand’s multi-sectored Network on Community Rights and Biodiversity has

also inserted relevant provisions in Thailand’s new Constitution adopted in 1997.

The Traditional Medicine bill establishes the rights of healers and local

communities to retain control over their medicinal plants and knowledge through

a public registry and rights to benefits from any commercial use by outsiders. The

81

Community Forestry Bill recognizes the legal status of communities living in and

around Thailand’s National Reserve Forests to use and protect them. They also

propose the establishment of community forests by rural communities to manage

forest areas in corporation with the Royal Forestry Department. The community

rights instituted through the bill do not touch on granting of land rights or

conversion to agricultural land, but the use, management and protection of their

forests.

Between 1985-1991 the US had pressured Thailand to amend the drug Patent Act

to include product patent and the exclusion of food, agricultural related machines

and seeds. At the end Thai government had to surrender and changed the laws on

23 February 1991 in exchange for GSP127 in some of the export items to the US.��

The International Board on Plant Genetic Resources under the FAO cooperated

with the National Office of Research and Development F��� ���� "<7���(����

��������D1&���6�G�founded the Nubcommittee in Coordinating of Genetic Resources

of Thailand ("<7$ ����(���)�7�� �� D1&��� '�����(����#�%$�)�7�B+��� in 1979.

This subcommittee works in coordination with the Agricultural Department and

Universities in Thailand in gathering genetic resources from all over the country.

However, many plant varieties had been lost before the establishment of the

National Gene Bank of Thailand in 1984. More than 13,849 of the plant varieties

127 The Generalized System of Preferences (GSP) is a system whereby developed countries grant preferential treatment to eligible products imported from developed countries so that export of developing countries would be competitive in the developed countries markets. The preference-giving country is also known as the donor country and the preference-receiving country as the beneficiary country. The preferential treatment is in the form of reduced import duty, and granted without reciprocal obligation on the part of the developing countries. FedEx Trade Network, 1998-2000. Trade Reference <http://www.traderef.com/TNR_Glossary.asp> accessed on 5 Sept., 2003.

82

had been collected and exported within 10 years of IBPGR operation in

Thailand.128 But Thailand only imported 914 varieties and the most benefited form

such export was the US that received more than 3,600 varieties or 27.49% of all.129

All these varieties had been transferred to gene banks in many developed

countries. From 127 gene banks all over the world, 81 are situated in developed

countries, 29 are in the International Agriculture Research Centers and only 17 in

developing countries. 130

Thailand did not join many international conventions concerning intellectual

property or the management of biological resources. Firstly, it is because the

concept of intellectual property is a new concept for Thailand. And secondly, the

management of the biological resources remains a big issue, involving the

livelihood of many Thais. Thailand did not ratify the CBD because by doing so

many Thais were afraid that this would decrease the sovereign rights and

eventually be dominated by foreigners. So what they did not observe is that even

if Thailand did not sign the CBD, they needed to accept the propriety rights of

individuals or corporations in many fields including the biotechnology and in

some biological resources as a prerequisite to enter the WTO.

In addition, the Ministry of Commerce, through the Department of Foreign Trade,

has established a quality standard and a Quality Certification Mark for Thai

128 $����6��%���$����,-=>01 2��=3/J0�4Apichart Khaosaard� 1995. pp. 3-10.]� 129Ibid., pp. 3-10.

130 �����"�(��������D �����A1(��9 ���$ ����8�����9�2�D7�����I �"��(�1��1�����������%$�)�7�B+��0���"���� �6�B��6�����;����<�(1��������, 2537. [Jaroen Compeerapap, Legal Aspect of Conservation, Use and Development of Biological Diversity in Thailand. Master of Law Diss., Chulalongkorn University, 1994.]

83

Jasmine Rice, to ensure the authenticity of fragrant rice from Thailand which

conforms to the highest standards of quality control. The Department of Foreign

Trade has already registered the Certification Mark with the Department of

Copyrights and Intellectual Properties, as well as patent offices in all major-

importing countries of Thai Hom Mali Rice. 131

131Department of Foreign Trade, Ministry of Commerce, “Thai Hom Mali Rice Quality

Cetification Mark.” 2000. <http://www. hommalithai.com/mark.html> accessed on 25 Sept., 2003.

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Chapter 7

Analysis, Recommendation and Concluding Remarks 7.1 Comparative analysis of biopiracy in India and Thailand Many developing countries were shocked by the sudden change of the principle

governing the management of biological resources from common heritage of

mankind to proprietary rights. In fact, the concept of proprietary rights itself is a

novel idea to developing countries. It is also very disturbing to developing

countries that foreigners can gain the exclusive rights in biological inventions that

stem from their local resources and knowledge. This, together with the current

dissatisfaction of the developing countries of the liberalization of trade, has

aggravated anger in developing countries.

It is clear at this stage that biopiracy is an issue concerning the North-South

(developed countries-developing countries) equity. Developed and/or

industrialized countries are imposing international or unilateral control in trade

and the transfer of their technologies to developing countries. The typical example

of international control is the WTO’s TRIPs. This agreement obliges all member

countries to accept an unanimous set of regulation imposing proprietary rights in

intellectual property over biological resources in their territory, allowing

foreigners to register for a patent in biological inventions. This arouses concern

from developing countries because the idea of proprietary rights in biological

resources is a new regime originating from industrialized countries. For the South,

the process leads to situations where the collective knowledge of society normally

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used for common good is converted to proprietary knowledge for commercial

profit of a few people.

The classic example of unilateral control is the US Economic Espionage Act of

1996. The Act redefines intellectual property infringement as a crime as serious as

espionage in military domains. According to the Act, the nation’s economic

interest is a part of its national security interest, thus threats to the nation’s

economic interest are threats to the security of the nation. Transfer of technology

has, through the Act, been redefined as “economic industrial espionage”. 132

Defining intellectual property infringement as economic espionage is arbitrary and

biased, especially since intellectual property is being expanded into new areas.

Furthermore, developed countries have been imposing international mechanisms

to liberalize developing nations, disregarding the damage that this might cause to

the latter.133 For example, the US had questioned India’s compliance with the

TRIPs Agreement in the WTO not long after the agreement came into force.

According to Article 65 of the Agreement, developing countries have until 2000, a

grace period for transitional arrangement. India interpreted that it had until 2000, a

transitional period before allowing patents in pharmaceutical products to be filed.

However, a WTO Panel examining the case concluded in 1997 that India was

guilty of not providing enough protection for patent applications in

132Office of the National Counterintelligence Executive, US Economic Espionage Act of 1996. <http://www.ncix.gov/pubs/online/eea_96.htm> accessed on 25 Sept., 2003. 133GRAIN, “The International Context of the Sui Generis Rights Debate” in GRAIN eds. Signposts to Sui Generis Rights: Background Discussing Papers for the international Seminar on Sui Generis Rights. Bangkok: BIOTHAI, 1997. pp.6-22.

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pharmaceutical products, according to Article. 70.8134 of the TRIPs Agreement.

Furthermore, when India’s parliament denied amending the Indian Patent Act, the

US also used the Special 301 clauses of its Trade Act to force India to amend the

Act.

Another concern is that a global protectionist regime of intellectual property poses

threat to the economy of developing countries. A strong regime of IPRs is not

suitable for non-developed states that are still seeking to increase their base of

human capital.135 Developing countries, be it Switzerland, and the US in the last

century, have developed most quickly when their right to exploit human

knowledge is unrestricted by artificial monopoly. The historical experience shows

that many industrialized countries such as Holland, Germany, and Switzerland

benefited more from not having a patent law. This permitted them to benefit from

emulating the technologies already developed by foreign companies. 136 They then

introduced a national patent system after industrialization has progressed further

and technical skills had developed to a more advance level.137 China provides a

perfect example. According to the patent law in force since 1985 chemical

substances and processes are excluded from patentability. 138 The Chinese

government announced its willingness to make the excluded inventions patentable

134 Article 70.8 “Where a member does not make available as of the date of entry into force of the WTO Agreement patent protection for pharmaceutical and agricultural products commensurate with its obligations under Article 27, that Member shall: (a) not withstanding the provisions of part VI, provide as from the date of entry into force of the WTO Agreement a means by which applications for patents for such inventions can be filed;…”

135 Anthony J. Stenson and Tim S. Gray, “Proprietarian Intellectual Property Rights” in Tim S. Gray ed. The Politics of Genetic Resource Control. London: Macmillan Press, 1999. pp.30-73.

136 Erich Kaufer, 1989. pp. 41-54.

137Loc. cit.

138 loc. cit.

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as soon as it has established possible chemical and pharmaceutical industries.139 At

last, the question is how can developing countries advance with all the

asymmetrical restrictions and exploitation imposed on them by developed

countries.

In addition, according to the Human Development Project Report, 1999 of the

UNDP also shows that tighter intellectual property rights do not encourage

multinationals to carry out research and development in developing countries.140

Ironically, R&D in the South has dropped from six per cent in the mid-1980s to

four per cent in the mid 1990s. 141 Imposing an international IPRs system put

developing countries in a lose-lose situation.

Furthermore, the increase in the patent applications in developing countries does

not mean that this has become a common practice among the local people. On

contrary, most patent applications were filled by and granted to non-residents.

According to the WTO report, industrial countries hold as much as 97 per cent of

patents world wide, and more than 80 percent of patents in developing

countries.142

139 loc. cit.

140 Vandana Shiva, 2001. pp. 21-39.

141 Loc. cit.

142 World Trade Organization, Trade Liberalisation Statistics. <http://www.gatt.org./trastat

_e.html> accessed on 25 Jul., 2003.

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Table 4 Patent applications and patent granted in India and Thailand in 1998

Application for patent filled by Grant of patent to Country Residents Non-

residents Residents Non-

residents India 2,111 7,997 592 1,119 Thailand 477 4,594 43 680

Source: WIPO, 2003.143

For developing countries, biopiracy can cause economic damage. Firstly, as

mentioned in the above chapters, more than 50 per cent of the people in most

developing countries still rely very much on agriculture. For example, 59.2 and

55.7 per cent of the economically active population in India and Thai were still the

agricultural field in 2001.144 Governments of developing countries are afraid that

the changes brought by the introduction of IPRs in biotechnological inventions

would contribute to the loss of employment to their farmers.

There is also fear that the imposition of intellectual property rights would cause

the loss of national wealth to developing countries. In the neem case, the price of

neem increased from a mere INR 300 per kg. to the current level of INR 3000-

6000 making the neem seeds unaffordable for the poor local farmers.145 Indian

farmers are at the receiving end of the process. Furthermore, WR Grace have no

143 World Intellectual Property Organization. <www.wipo.org/ipstats/en/> accessed on 13 Jan,

2003.

144FAO, 2001. p. 26. 145Ankur Gupta, Biopiracy and (Mis)Appropriation of Traditional Knowledge, Jul 2003,

<http://www.cs.utexas.edu/users/ankur/paper.html> accessed on 17 Aug. 2003.

89

intention in compensating holders and developers of the neem plant's properties in

India as indigenous knowledge of the neem plant was simply f̀olk medicine'.146 In

the plao-noi case, Thai people do not benefit from the medicine developed on their

indigenous plants, plao-noi, because the medicine is sold exclusively to the

Japanese market. And even if it were sold in Thailand, many locals would not be

able to afford it at the price of 30 baht per tablet.147 Also, the Sankyo Ltd. can

move their plao noi plantation to another countries where labor costs are lower,

posing threat to the job security of thousands of workers in the plant.

In the Basmati case, RiceTec now has monopolized some varieties of Basmati in

the US market. This may cause serious damages to India and Pakistan because

India may lose the 45,000-ton US import market and the European market which

only UK alone accounted for more than 40, 000 tons of Basmati rice from India in

1992.148 RiceTec’s patent on the Jasmati trademark can mislead consumers that

Jasmati is derived from the Thai Jasmine rice. This could potentially pose threat to

the export market of Thai rice. It is evident that in India and Thailand the

patenting of biological material can also cause threat to the economy as, until

recently, more than 20 per cent of India’s and 10 per cent of Thailand’s Gross

Domestic Product (GDP) relies on agricultural products.

146 Ibid.

147 ����������� �������D7�"<7��,-..0�1 2��=>3?O0�[Witoon Lianchamroon et al, 2001. pp. 38-69.]

148 J. Faure and F. Mazaud, “Rice quality in the European Union,” in Agriculture et development, Dec. 1995. <http://www.riceweb.org/g_overeuro.htm.> accessed on 17 Aug., 2003.

90

Figure 1 Structure of India’s Economy (per cent of GDP)

0

10

20

30

40

50

60

1982 1992 2001 2002

AgricultureIndustryServices

Source: World Bank, 2003.149

Figure 2 Structure of Thailand’s Economy (per cent of GDP)

0

10

20

30

40

50

60

1981 1991 2000 2001

AgricultureIndustryServices

Source: World Bank, 2003150

Biopiracy is also condemned for causing loss of cultural heritage in developing

countries. The patenting of Basmati and Jasmati rice are examples of loss of

149 World Bank, 2003. <www.worldbank.org/data/countrydata/aag/ind_aag.pdf> accessed on

25 Jul., 2003.

150Ibid.

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cultural heritage. Basmati and Jasmine rice should be regarded as geographic

appellation that belongs to India, Pakistan and Thailand. It is the unique

combination of the particular plant varieties cultivated, the climatic and soil

conditions and the cultivation practices that make Basmati and Jasmine rice

special. They deserve similar Geographical Indication (GI) treatment similar to

the Scotch whisky of Scotland, Champagne of Champagne district in France, and

Havana cigars of Cuba. In the case of Basmati, India failed to secure GI protection

because it faced US opposition in the Doha trade round of World Trade

Organization.

It is necessary for developing countries to adopt protective strategies to protect

themselves from the damages that might cause by the global IPRs system. For

India, the government adopted an aggressive approach to participate in

international affairs regarding the biological resource management. For example,

India has been vocal in the issue of indigenous rights of local community in Prior

Inform Consent (PIC) in both WTO and CBD forums. In India there were also

initiatives in fostering the concept of benefit sharing between farmers’ and other

interest. It also joined many international agreements regarding the issue of

intellectual property rights. It is clear that India is trying to upgrade itself to meet

the international standard in term of IP protection.

For Thailand, the government adopts a more moderate route in adopting the

concept IPRs. The Thai government has amended the Patent Act and enacted

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many laws concerning biological resources management which provides more

opportunities for local people to participate. Thailand 1997 version of the Thai

Constitution also recognizes the concept of community rights and encourages

local’s participation in biological resource management. However, Thailand has

not yet ratified the CBD and did not join many international agreements for fear of

the national treatment clause which would oblige Thailand to give equal treatment

to locals and foreigners.

Table 5 India and Thailand Participation in International Agreements

International Convention India Thailand Paris Convention (WIPO) (1883)

Party (7-12-1998) -

PCT Party (7-12-1998) - EPO - - Strasbourg Convention (1963)

- -

UPOV (1961) - - International Undertaking (FAO)

Member Member

Budapest Treaty (1980) 17-12-2001 - CBD (1993) Signed (5-6-1992)

Party (18-2-1994) Signed (12-6-1992)

TRIPs (1994) Member Member 7.2 Recommendations on solutions for biopiracy problem in developing

countries

In the wake of the problems with patents in biological resources and biopiracy that

India and Thailand have experienced in recent years, they have now realized the

importance of enacting laws for conserving biodiversity and controlling piracy.

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However, there is still a lot to be done in terms of creating safeguard mechanisms

in preventing future disputes.

The TRIPs Agreement requires all member state to provide patent protection to

any inventions, whether product or processes in all fields of technology, including

micro-organisms, non-biological and microbiological process. Furthermore,

members shall provide protection of plant varieties either by patents or by

effective sui generis system or any combination of the two (TRIPs Article 27 (3)).

The concept of biological resources as free goods had been altered and substituted

by the concept of propriety rights over these resources. This situation is unfriendly

to developing countries. As a member of the WTO, India and Thailand need to

accept this provision. However, they should stand firm on the principle of national

interest. National governments and individual landowners have the legal right to

restrict access to organizations to prospect for genetic material on their territory.

In the past, countries have failed to adequately enforce such rights, partly because

of a lack of awareness of the potential value contained within their genetic

resources. 151 It is the best way to counter the commodification of biological

resources. The Convention on Biological Diversity also provides a firm support of

the principle of national sovereignty and indigenous rights of local communities

over their resources. Developing countries should fully utilize this provision.

A common proposal offered as a solution to biopiracy is that of bioprospecting

and benefit sharing. That means those who claim patents on indigenous

151 Ian Walden, “Preserving Biodiversity: the Role of Property Rights,” in Timothy Swanson

ed. Intellectual Property Rights and Biodiversity Conservation: an Interdisciplinary Analysis of the Values of Medicinal Plants. Cambridge: Cambridge University Press, 1995. pp. 176-98.

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knowledge should share benefits form the profits of their commercial monopolies

with the original innovators. Bioprospecting is being promoted as the model for

relationships between corporations who commercialize indigenous knowledge and

indigenous communities which have collectively innovated and evolved the

knowledge. However, this concept has troubling drawbacks. For example, there is

no standard of the most appropriate appropriation to indigenous communities and

there are many cases that the resources concerned are owned by several

communities. This would allow multinational companies to benefit from the

conflict between two communities. Setting up an international sui generis system

should be a better choice. This system should advocate community intellectual

property rights in traditional varieties and indigenous knowledge. It is difficult in

to inaugurate such a system, but if successfully implemented, it would ward off

fear and prevent the problem of biopiracy.

The concept of prior informed consent (PIC) has also been proposed by many

developing countries in solving the problem of biological resource management.

This means that companies or any individual that are utilizing biological materials

from other countries need to obtain the prior informed consent of all communities

and all members of each community who have used and contributed to collective

innovation in biodiversity related knowledge. In the past, developing countries

had welcomed foreign researchers and companies to collect and research on their

biological resources without much problem, but since the objective of

bioprospecting has changed into the extraction of resources for economic interest,

government of the source country should be legitimate in applying stricter

mechanism to protect its own interest.

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Ideally, in order to create a fair system of international resources management,

national governments must be free to make their own decision regarding patents

without external compulsion. A decision on patents must be based on national

needs and national innovation strategies that fit within the social and ethical

framework of that country. Furthermore, governments of developing countries

should be able to delay any patent law over life forms until the current ambiguities

and uncertainties are resolved. Patent related registration and prosecution will be

demanding and resource consuming. Countries adopting a patent system related to

living materials must be prepared to divert human and financial resources toward

the development of a patent office with specialist skills in biomaterials. Besides,

there should be research exemption that protects the right of scientific workers in

developing countries to use patented inventions without charges or prejudice for

noncommercial investigations.

Ultimately, developing countries should foster their research and development in

biotechnology. There are several mechanisms that help promote research and

development in this field. One of these mechanisms is offered by regional

cooperation. For instance, the South Asian Association for Regional Cooperation

(SAARC) Technical Committee on Science and Technology offered Action Plan

of cooperation in biotechnological research since 1999.152 SAARC’s Information

Centre (SAIC) in Dhaka also offers information related to biotechnology that is

152 The areas include, Plant Tissue Culture; Preparation of Inventory of Medicinal and

Aromatic Plants of the SAARC countries and Preparation of Various Herbal Medicines used in Traditional Systems of Medicines; Plant Biotechnology, including Therapeutic Products, Edible Vaccines, etc. Vaccines and Diagnostics for Humans and Animals; Aquaculture; and Human Resource Development in Biotechnology.

The South Asian Association for Regional Cooperation. SAARC Newsletter, Vol.X, Nos.3 & 4 March - April 1999. <www.saarc-sec.org/newslet/mar-apr99.htm> accessed on 20 Sept., 2003.

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useful in biotechnological research. The SAARC also promotes cooperation in

key areas such as (a) germplasm collection, evaluation for sustainable use and

documentation and joint explorations, (b) R&D projects, (c) training programmes,

(d) maintenance of database on horticulture commodities, (e) post-harvest

technology and marketing and (f) vegetable seed production that South Asian

Countries should utilize. The Association of Southeast Asian Nations (ASEAN)

also has strong interest in biotechnology as one of the main areas of cooperation in

science and technology. Its Sub-Committee on Biotechnology (SCB) is

responsible for the management, coordination, evaluation and implementation of

regional biotechnology projects in ASEAN. Several Action Plans to promote

regional cooperation in biotechnology have been under process, for instance; The

Hanoi Plan of Action (HPA), ASEAN Plan of Action on Science and Technology

(1994), Medium Term Programme (1996-2000), etc. 153 Developing countries

should be more proactive in initiating collaborative research among member

countries in these regional cooperations and with other developing countries.

7.3 Concluding Remarks Biopiracy is a phenomenon introduced through the imposition of intellectual

property rights of biotechnological inventions. However, this does not mean that

all patenting over biological resources or inventions contributes to biopiracy. It

should be clearly emphasized at this point that intellectual property rights have

their own merit, and only the patenting of biological resources or indigenous

knowledge of other community without paying an equitable compensation to that

153 Donald Tambunan, Priorities in Biotechnology Cooperation in ASEAN. <http://www.

aseansec.org/2828.htm> accessed on 25 Sept., 2003.

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community that contributes to biopiracy. It is not the purpose of this dissertation

to argue that there should not be intellectual property protection in the field of

biotechnology. This dissertation proposes that the attitude of industrialized

countries that favour for the imposition of a global proprietarianism without

taking any external social cost into account should be altered.

Biopiracy is a complicated issue. The concept is inextricably linked to the concept

of intellectual property rights on biological inventions, which is, by itself highly

controversial. It is further confusing when the patenting of biotechnology

inventions involves a lot of international agreements as mentioned in chapter four.

To complicate the issue more, there are several concepts that is concerned with

biopiracy, including the principle of proprietarian intellectual property rights,

community rights, national sovereignty, and the common heritage of mankind.

The problem of biopiracy has been raised in many forums. This is because the

issue has contributed to the North-South debate in economic equity. Developing

countries are questioning about the appropriateness of the liberalization of the

international economy. They have been forced to open up their economy, lower

their trade restrictions, and give national treatment to foreign entrepreneurs.

Developing nations are far behind in technological development, as a result, they

are on a level playing field against large MNCs or industrialized counterparts. The

WTO’s TRIPs Agreement has been viewed as tool for industrialized countries to

protect their interest while exploiting others. In terms of the imposition of a

global proprietary rights on biotechnologies, the developing countries would feel

that it is not fair to let any agents from developed countries in gaining exclusive

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rights from innovations that stem from biological resources and/or indigenous

knowledge of their own.

Thailand and India both are faced with the problem of biopiracy. In the case of

neem and plao-noi, the companies which gained the patent on the resources do not

pay any compensation to the source countries, and even worse, both companies

are monopolizing the supply of these resources. Given that Indian and Thai

people have been using neem and plao-noi for generations as medicinal herbs,

how can the curing properties of these plants be novel? In the case of Basmati

and Jasmati, the adoption of both names should not be allowed as both of them

could mislead consumers.

Both India and Thailand are members of the WTO. As a result of this,

governments ought to amend laws in accordance with the TRIPs Agreement

which provide the patenting of biological materials and inventions. The new

versions of the Indian and Thai Patent Acts allow for broader interpretations of

patentable inventions. As a counter measure, they also enacted laws that protect

farmers’ and community rights.

Policy recommendations to developing countries which are faced with the threat

of biopiracy is first to stand firm on the concept of national sovereignty and

impose stricter conditions. States posses the sovereign rights in their biological

resources. The collection or utilization of their natural resources by foreign agents

needs to be done through national formalities. In the past, the process of applying

permission in the collection of biological materials was straightforward. However,

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the situation has differed from the former time. Material collected by foreign

companies or individual might be patented for the exclusive rights in utilizing the

material. Furthermore, companies may gain the access of indigenous species from

international institutes such as the IRRI, which was donated, for research purposes

under only a broad material transfer agreement. As a result, states are legitimate in

the imposition of a more rigid control on biological material transfer. In addition,

developing countries should not limit their research and development in

biotechnology within the country, they should also utilize regional initiatives to

foster stronger cooperation in biotechnology research and fight against biopirate

collectively. The final recommendation would be to set up an international sui

generis system that recognizes the national sovereign right of state, the community

rights of the indigenous people, and farmers’ rights of local cultivators.

Nevertheless, there are some limitations in studying biopiracy. Firstly, the word

biopiracy itself is arbitrary. There is no legal framework saying that biopiracy is

an offence. On the other hand, the patenting of biological inventions, regardless of

the original source of the biological material, is recognized by national and

international laws. Furthermore, there is no factual report about the actual loss

caused by biopiracy. Even so, we cannot deny that biopiracy does exist and

represents the inequalities of the North and the South. There has not been any law

punishing biopiracy because biopiracy is a new kind of crime that has just been

realized not long after patenting of biological inventions started only two decades

ago. And another reason is that industrialized countries have dominated main

international conventions. Hence, many international agreements favour the North

more than the South.

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In the past few years, developing countries have become more vocal in the

international arena. They have begun to work cooperatively with each other and

form stumbling blocks to industrialized countries. This would help developing

countries in the political bargaining with developed countries and help to solve the

problem of biopiracy.