WTO, TRIPS and BIOPIRACY

E ORGANISATION – TRIPS – BIOPIRACY 

 WTO is the World Trade Organization, in which India has become a member in January, 1995. Among the different agreements that India signed, TRIPS, the Trade Related Issues of Intellectual Property Rights system  is a very important one and it is also something that generated a lot of controversy. In simple terms, it makes it obligatory on the part of all WTO member countries to protect intellectual properties rights, i.e. “inventions” through granting patents or a suo-generies system.

 Bio-piracy is the illegal appropriation of biological resources or traditional knowledge which often has been handed down through generations.

Bio-piracy is being facilitated through TRIPS. In 1995 two US based Indians were granted U.S. patent 5,401,504 on use of turmeric in wound healing. But fortunately for us the Indian Government challenged it in WTO, Dispute settlement body (32 references were located) and the patent was revoked.

Patents are granted under national patent laws and have territorial application only. The TRIPS agreement provides minimum standards of protection for intellectual property rights including patents, while WTO members are free to grant a higher level of protection under their national laws. Thus India is free to deny patents on life forms, except on microorganisms and micro-biological and non biological processes, as per the provisions of TRIPS. At the same time, if another country, for example USA chooses to grant patents on plants or other life forms, Indian cannot object. But such patents will have force only in USA and cannot be enforced in India.    

Many international Biotechnology companies and universities are exploiting this situation and are doing Bio-prospecting and committing Bio-piracy, i.e. they are stealing the plants or microorganisms of countries with rich biodiversity, they are doing research on them, and they are coming out with wonderful products, patenting them and are minting millions. For example a company called Procter and gamble along with professors from Liecester university of UK went Bio-prospecting to Kenya; they collected water samples from different hot springs in Kenya called Geysers. One sample collected from hot geysers, contained microorganisms known as “extremophiles”. The presence of these microorganisms and their properties are known by Kenyan scientists. Procter and Gamble with the help of a scientific Biotechnology laboratory isolated these microorganisms which were metabolizing an enzyme which can be used as a surfactant in a detergent. They started cloning these organisms and using them in their TIDE detergent, after taking a patent on the variety of microorganism. They started making millions on it.  Kenya has gone to fight with WTO asking for a fair share of the benefits but the company is not willing to share its profits with the communities of Kenya, though Kenya is the original source of these organisms.

 A company known as Rice tech has tried to patent India's Basmati Rice. India fought and got it cancelled. India's Haldi (Turmeric), Neem, Bitter guard, Bringal-patenting was attempted on all these- but India could get these patents cancelled-but this is a costly process. One important thing that we should be able to prove is that the item is not novel, that there is no innovativeness in its use. We should be able to establish that it is already well known, and is a part of our traditional knowledge. Neem and Haldi could be saved because there are research papers published on them. Documentation is important.

India presented a paper to WTO where in it pleaded for a system to (a) prevent bio-piracy, (b) to compel a patentee to obtain prior consent from the parent country and to  (c) share benefits of the patent with   the parent country. 

  In these views India leads an alliance of 12 countries which together possess about 70% of Worlds bio-diversity. Many countries such as Japan, Canada and Switzerland recognized the depth and correctness in India’s attitude and promised to ponder over its paper was welcomed as real world paper. But USA adamantly refused to consider the issue in the paper. It does not recognize the there is a phenomenon called bio-piracy.

 India in its Patent Act kept some safeguards to ensure that there is no biopiracy from its lands.  In Chapter II , Section 3, in which Inventions not patentable are defined , subpart (j) says:

Plants and animals in whole or any part thereof other than microorganisms but including seeds, varieties and species and essentially biological processes for production or propagation of plants and animals

And subpart (p) says

An invention which in effect, is traditional knowledge or which is an aggregation or duplication of known properties of traditionally known component or components.

            So the Government’s hands need to be strengthened by (1) Non-Governmental Organizations, (2) Lawyers Organizations, (3) Scientists Organizations and (4) Publishers of Scientific Journals. Work related to traditional knowledge should receive favor in publication.

Bio-piracy is a dangerous game being played by ambitious bio-technology and pharmaceutical companies. It should be challenged and restrained and that requires the attention of layers, governments, NGO’s and most importantly from scientists of disciplines like Botany, Zoology, Microbiology, Bio-technology, Pharmaceutical sciences and Medicine.