From: The Hindi daily, Dainik Hindustan, New Delhi; Aug 27, 2001
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Patently Wrong on Plant Resources
By Devinder Sharma
Once again India has been caught napping. While the political and intellectual debate over whether the August 14 ruling of the United States Patent and Trademark Office (USPTOÃs) to uphold the American company Rice TecÃs claim for a patent on basmati rice lines is a ëvictoryà or a ëlossÃ, the country appears to be in no urgency to draw up a strategy to protect the national resources. While the debate rages on, developed countries are silently and steadily picking up on the traditional knowledge and patenting anything and everything that is worth seeking intellectual property control. In fact, many Indian companies and civil society groups are helping these companies speed up the process of collection of traditional knowledge and the plant resources that are needed !
It is well recognised that with the entire food supply system patented by a few multi-national companies, IndiaÃs food security will depend upon the profits that these companies can garner. Since India offers a unique diversity and richness in food products, there is a scramble to scout India for its genetic wealth. From microbes to animals, from chutneys to parboiled rice, and from idlis to vegetable pulao, food pirates are searching for anything that is worth intellectual property protection. So much so that a drug multinational has drawn a patent on the commonly used Oral Rehydration Therapy (ORT) by health workers.
There was this shocking news of an American company obtaining a process patent on piperine, a by-product of black pepper, a major forex spinner. The US-based Sabinsca Corporation had served a legal notice on a Kerala firm claiming that it has a 1996 patent for a formula using peperine. While the patent over peperine had shaken the Spice Board, George Williamson Ltd., of England has filed for a patent on the entire manufacturing process of tea, from the plucking of leaves to its final packaging in chests, prompting the Tea Board to launch an offensive to counter the monopoly control over a process that has been in vogue throughout the country. Multinational Nestle already has a European patent on vegetable pulao and parboiled rice. Innumerable applications are pending before the Indian Patents Office to grant exclusive marketing rights for patented products that range from chutneys, jam spreads, ice-cream contents, to ‘nutritional meals’.
In the case of medicinal plants ? an area where India enjoys a privileged position -- all India is doing is to examine and contest some patents obtained by United States firms for herbal anti-diabetic remedies like the one granted on the healing properties of turmeric and the other based on brinjal, bitter gourd and "jamun". Meanwhile, it has been found that a large number of patents have either been drawn or are pending vefore the USPTO, The European Patent Office and the Japan Patent Office on the medicinal and cosmetic properties of Amla. At least five patents have been granted in the US, and four patents are pending before the Japan Patent Office. And most of these patents are over chemical composition of something that was traditionally known in India. Similarly, numerous other patents have been granted on known properties of some of the well-known medicinal plants.
Much of the blame, however, rests with the failure of Indian government to enact adequate protection laws. Take the case of the proposed biodiversity law. It took more than four years for the Ministry of Environment & Forests to reach an agreement on the contentious issue. It has framed a biodiversity bill, which remains pending before Parliament. Under one pretext of the other, Parliamentarians look for opportunities to stall the proceedings of the House while the nation loses on time in enacting laws. The result; the bill still remains pending before Parliament.
Failure to e protection of geographical indications of a particular product is costing the country dearly. India has failed to take advantage of the Article 22-24 of the Trade-Related Intellectual Property Rights (TRIPs) that provides rules for geographical indicators. Such a legislation in place would have made it difficult for other countries to patent products like basmati rice, Darjeeling tea and Bikaneri bhujia (snack), unique to the country. But then, a bill for geographical indications became an Act in 1999 and it till Aug 2001, the norms, rules and regulations of the Act have not been specified. If only India had brought basmati under the geographical indications provisions, which provides a legal sanctity for prohibiting other countries from marketing the same product, basmati rice would have remained an Indian product.
Legislations like the Patent (Amendment) Act 1999 have been enacted under pressure from the WTO. Equally important legal mechanisms that provides for sovereign control over the indigenous plants and traditional knowledge in light of the UN Convention on Biological Diversity, have remained pending under one pretext or the other before Parliament. As a result, private companies and institutes from America, Europe, Japan and Australia are known to be scouting the countryside for valuable plant species and micro-organisms. Several multinational pharmaceutical giants have entered into research collaboration with Indian companies ostensibly to collect and transfer plant and animal species.
At a time when the herbal market has moved towards the west, India remains busy setting up working groups to revitalize the traditional systems of medicine and Homeopathy, making as usual numerous recommendations for the ninth Plan. While the policy makers and planners remain glued to budgetary provisions, international patents are being indiscriminately drawn on medicinal plants. In 1996, China had topped the list with 46 per cent of the global patents on medicinal plants, with Japan accounting for 20 per cent, followed closely by Russia and the European Union with 12 per cent each. Not to be left behind, the United States and Australia too had a sizeable share in the pie, each staking claim to ten per cent of the total patents taken out on medicinal plants.
Strange that India should lose out in the global race for intellectual proprietary control in an area where it still holds supremacy. In the eighties, for instance, India was the biggest player in the global market, with annual exports to the European Union alone exceeding 10,000 tonnes of plants and 14 tonnes of vegetable alkaloids and other derivatives. Studies subsequently showed that India continued to supply at least 22 of the 74 known species of the most sought after medicinal plants in 1992. Germany alone has been importing 40,000 tonnes of plant drug material from India every year during the past five years. The market for Indian medicinal plants, both legal and illegal, in any case is known to have grown by three to four times.
While it has been widely accepted that the estimates of trade in medicinal plants reflects only a fragment of the volume that actually crosses national boundaries, the fact remains that India is amongst the most important resource collection centers for plant material as well as traditional knowledge of well-documented and standardised systems of medicines including Ayurveda, Siddha, Unani and Amchi. An estimated 460,000 practitioners of the traditional systems of medicines, of which 271,000 are registered, reach over 500 million people in the country. Such has been the growth over the years that there exist 7843 licensed manufacturers of traditional drugs in India.
Internationally, there is a visible spurt in the use and application of plant-based medicines. In 1990, more than 2000 European companies were marketing herbal medicines. And some 223 major pharmaceutical companies were engaged in screening plants for new drug leads, all getting into the act within the decade. Since the Convention on Biological Diversity, signed at the Rio Summit in 1992, only reaffirmed the sovereign rights of the governments over their plant genetic resources but remained silent on the more contentious issue of proprietary control over the products developed from these resources, the multinational drug industry is using the long arm of the World Trade Organisation (WTO) to maintain its global monopoly.
In addition to patent rights, the multinational drug industry is using other provisions of the WTO to tighten its control over the market. For India, such initiatives will lead to a sure jeopardisation of the existing health care system. The Drug Controller General of India predicts that the reduction in tariff barriers to the agreed ceiling of 25 per cent by the year 2000 will trigger a collapse of the allopathic industry. Most bulk drugs produced in India will actually be priced out of the markets by cheaper imports. The comparative advantage and potential of the Indian systems of medicine in such a derelict situation, which could have served as an easy and affordable alternative, no longer appears to be possible.
A pro-active approach on the issue of intellectual property control and also over medicinal plants could have protected the national interests as well as provide an economic handle to dictate the global market. It is true that a dilemma prevails about how to provide patents to formulations and products, which have been developed over hundreds of years. At the same time, it remains a fact that hundreds of patents are being taken out on traditional medicines the worldover. The difference being that while India continues to debate and discuss the issue, other countries are using scientific explanations for the traditional knowledge and applying for patents. And in the bargain, India is losing control over its existing wealth of knowledge. #
(Devinder Sharma is a food and trade policy analyst. Among his recent works includes two books "GATT to WTO: Seeds of Despair" and "In the Famine Trap". He can be contacted at: This email address is being protected from spambots. You need JavaScript enabled to view it.)