Patent Progress

The revocation by the US Patent and Trademark Office of the patent granted to two Mississippi-based non-resident Indians on the wound healing properties of turmeric (haldi) marks yet another victory in the protracted combat against bio-piracy. The other similar recent verdict was the annulment by the European Patent Commission of the patent granted to the US department of agriculture and W R Grace for a fungicide derived from the seeds of the neem tree. However, many more such battles are still to be won as the list of the traditional Indian remedies, plants and other commercially important bio-material that have already been patented abroad is said to be fairly long. It includes not only the much talked-about basmati rice patent won by the US firm RiceTech, but also items as common as karela, jamun and brinjal. These developments are a pointer to two realities. One, the international intellectual property rights regime is still in its evolutionary stage and needs a thorough review. Two, the national patenting systems even in the developed countries need to be modified to avoid such mistakes.

 

On the positive side, these events strengthen India's plea before the World Trade Organisation (WTO) to exclude patents on all life forms, those based on traditional or indigenous knowledge, and products and processes which are essentially derived from such knowledge. Pending the emergence of a broad consensus on this issue, the WTO should at least insist on disclosure of the country of origin of the biological resource and associated knowledge and obtain the consent of the country concerned.

India, being one the world's 12 recognised mega biodiversity centres, has much at stake on these issues. This is so also because India possesses an equally rich traditional and indigenous knowledge base on the gainful uses of most of these products. Regrettably, only a part of this knowledge is coded, the rest being informal and hence vulnerable to piracy. A good deal of valuable genetic resources has already found its way out and is being commercially exploited in other countries without any sharing of the benefits arising out of such use.

India's vulnerability on this count is partly due to its woeful lack of preparedness. It is a signatory to the Convention on Biological Diversity of 1992, which gives sovereign rights to states on their own biological resources. It also explicitly provides for conservation of biological diversity; the sustainable use of its components; and fair and equitable sharing of benefits arising out of the utilisation of genetic resources. However, the country is unable to fully exploit some of these provisions for want of the necessary domestic legal framework. The statutory measures needed for this purpose include geographical indications law, biodiversity law and plant variety and farmers' rights protection law. Of these, only the geographical indications law has been passed. The biodiversity bill, the draft of which has been reviewed and vetted by several bodies, could be introduced in the Lok Sabha only yesterday. And the plant variety protection bill, which has also gone through several amendments even at the draft stage, is nowhere in sight. Unless a sense of urgency is displayed on this count, it is premature to rejoice over the revocation of the odd patent on an Indian resource.