Biopiracy exploits IP laws, endorsing extraction of indigenous resources, wiping out food security and access in source countries

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. Between 25-50 % of current prescription pharmaceuticals come from plants, either directly or through modifications by biochemical methods, and the value of drugs to the U.S. pharmaceutical industry coming from plant species is estimated at over 30 billion USD per year.2 A multinational company or individual who wishes to develop a new product often makes use of the traditional knowledge of local people in deciding upon a plant, animal or other biological source to study.

After the successful production of commercially useful products from those organisms, the company applies for a patent in its own name on those products. In most cases, the inventor not even acknowledges in his patent application that his product was derived from information provided by a local community. Biopiracy therefore can be described as the unjustified extraction of the environmental heritage and traditional knowledge from various regions of the earth for economic exploitation and industrial monopolization.7

Daniel F. Robinson distinguished between three different categories of biopiracy:

“Patent-based biopiracy: The patenting of (often spurious) inventions based on biological resources and/or traditional knowledge that are extracted without adequate authorization and benefit-sharing from other (usually developing) countries, indigenous or local communities.

Non-patent biopiracy: Other intellectual property control (through plant-variety protection or deceptive trademarks) based on biological resources and/or traditional knowledge that have been extracted without adequate authorization and benefit-sharing from other (usually developing) countries, indigenous or local communities.

Misappropriation: The unauthorized extraction of biological resources and/or traditional knowledge from other (usually developing) countries, indigenous or local communities, without adequate benefit-sharing.” 8

2. 1. Global emergence of Biopiracy

A recent report of United Nations Development Programme (UNDP) mentioned that “if unpaid to developing countries and indigenous peoples for the plant varieties and local knowledge used by multinational food and drug companies, those providers would earn approximately 5.4 billion USD per year”.2 Examples of countries not receiving their full share of these royalties include Tibet, India, Sri Lanka, South Africa, Samoa, Madagascar, Ecuador, Mexico and the Philippines. 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.

2. 2. Biopiracy in India: few examples

In the recent past, there have been several cases of biopiracy of traditional knowledge from India. First it was the patent on wound healing properties of haldi (turmeric).9 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 one of the major components of Ayurvedic medicine. In 1995, two US scientists from the University of Mississippi were granted US patent 5,401,504 on the use of turmeric. The scientists claimed that turmeric could heal wounds and claiming this to be novel. They have mentioned in their patent application that turmeric has long been used in India as a traditional medicine for treatment of various sprains and inflammatory conditions. But they claimed that there was no research on the use of turmeric as a healing agent for external wounds. The Indian government vigorously challenged the patent and provided numerous 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.10

The Neem tree case is another significant example of biopiracy of Indian medicinal plant. Azadirachtin is one of many active compounds present in bark, leaves, flowers and seeds of the Neem tree or Azadirachta indica. 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. Use of neem had been described in ancient Indian texts written over 2,000 years ago as an air purifier and effective medicine for almost all types of human and animal diseases because of its insect and pest repellant properties.9,10 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 US Environmental Protection Agency (EPA). The patent for the product was sold to the multinational chemical corporation, W.R. Grace after 3 years. 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 industries to purchase their technology. The company ultimately managed to start a joint venture with a firm called P.J. 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. 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.10

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 times. It is evident that Basmati has been grown for centuries in the subcontinent. After centuries of observation, experimentation and selection, the Indian farmers have developed numerous varieties of the rice to meet various ecological conditions, cooking needs and taste.9 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 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 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 and characteristics of the Indian traditional varieties of Basmati. On the question of consumer deception, RiceTec clearly labels its product as ‘American type Basmati rice’.10 No case has been filed in the US so far by any interested party from the Indian subcontinent regarding this serious issue. By mid 2000, however, the Indian government decided to challenge some of the claims of the RiceTec patent. World’s largest importer of Basmati rice, Saudi Arabia and the UK, recognized 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). In the Basmati case, RiceTec’s action would really become a threat to the sales of Basmati rice from India, and could affect the economic conditions of the rice farmers in India.

Karela (bitter gourd), Jamun (blackberry), Gumar and Brinjal, for instance, are commonly known in India for their anti diabetic characteristics. Their usees are so common in India that there is no novelty involved while using them for curbing diabetes. A patent was, however, obtained in the U.S. by three NRIs for their utilization as a cure for diabetes.11

North East India is very rich in flora especially in cultivation of medicinal plants by the tribes. Resource-rich Nagaland is plagued by bio-piracy with rare medicinal herbs, orchids and other endangered species being smuggled out of the state. These plants are being borne off by pharmaceutical companies for commercial benefits. Ginseng, taxus baccata and cephallu taxus and paris cordifolia have medicinal properties and are often smuggled to Myanmar.12

Some cases have been highlighted with a success story, but there are also numerous stories of deprivation in the context of biopiracy. Corporate patents usually do not recognize or compensate the indigenous people who are the main conservators of those resources. Indigenous communities, over the centuries, have identified and classified plants native to their lands and found their beneficial characteristics. But, the tribes do not have access to legal information that would protect their plants and cultural knowledge nor do they have the finances to obtain them.9 The profit incentive companies often overexploit the beneficial plant resources for commercial use, which ultimately result in the loss of forests and genetic material, crisis of land, plants and cultural knowledge of the indigenous communities.

2. 3. Biopiracy and food security

The stealing of biological resources and indigenous knowledge would affect food security, livelihood of indigenous people, and consumers’ choice. More than 70 % of our food supply is dependent on a small number of edible plant resources, mainly wheat, maize, rice, and potato, which are fundamental to food security. Patenting of these plants varieties will definitely pose threat to the consumers. The patenting of biological technology will encourage monopoly control of plant material by Western transnational corporations. Farmers will become dependent of on corporations for their input in agriculture, i.e. seeds, fertilizers, pesticides and herbicides. It has particularly troubling implications for the developing world as the farmers cannot afford to buy seed each year and traditionally set aside a portion of their harvest to plant in the next growing season. Moreover, with the introduction of the genetically modified crops and high yielding varieties, the local crop varieties are being lost and outcompeted.13 The farmer’s rights to choose the desired crops have become difficult to implement. The technology can execute a devastating effect on the economy and food security of the farmers in developing world and can eventually destroy the locally adapted, inexpensive traditional crop varieties.14 The entire process will eventually lead to the monopolization of trade, which is ultimately against the principle of free trade fostered by the World Trade Organization (WTO).

India’s agriculture being rich in bio-diversity has been always been an easy prey for big corporations engaging in agribusiness for the purpose of bio-piracy.15 Monsanto, for instance, tried to spread genetically modified brinjals in India in the form of Bt Brinjals in spite of the fact that India itself is a source of over 2500 different unique varieties of brinjals.16 Monsanto’s attempt of taking over the market was opposed by the public forcing the government to ban it for an indefinite period of time.16 But Monsanto is still stealing native crops, including brinjals, and quietly working on GM varieties of them in test fields, which is a clear violation of India's Biological Diversity Act 2002 (BDA). The farmer variety has been used by Monsanto in its breeding programs without taking prior permission from Indian farmers and without entering into any kind of benefit sharing agreement with them. This is not just grossly unethical; it is in violation of international agreements like the Convention on Biological Diversity (CBD) and the International Treaty on Plant Genetic Resources (ITPGR) which recognize the rights of the farming community over the genetic wealth used in agriculture.17