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
1
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.

2
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.


1
Plant 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 Organizations
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.

3
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




2
Genetic Resources Action International (GRAIN). Biopiracy, TRIPs and the Patenting of
Asias Rice Bowl. May 1998. <http://www.grain.org/publications/rice-en-p.htm> accessed on 9 Jan.
2002.
4
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 clich 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--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. 3
rd
ed. Barcelona:
GRAIN, 2000. p. 2.

5
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 146member states (as of 4 April 2003) 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 anothers 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

4
Erich Kaufer, The Economics of the Patent System. Chur: Harwood Academic Publishers,
1989. pp. 41-53.

6
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
7
concept of common heritage of mankind, but also the violation of a states
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
8
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.

9
Chapter 2

The concept of biopiracy


What is biopiracy?

The word biopiracy was originated in the 1980s. 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
1m:u iauu(:n 1:aant1n(n,"The Research Programme on Bio-piracy in Thailand
n:uivn: in:at(uavsnuLnn(1vu, 25+1. vu( 5-12. |Witoon 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 peoples control over genetic resources and local knowledge, with a special emphasis on developing
countries.

10
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.

10
loc. cit.

11
loc. cit.
11
example, in 120 active compounds currently isolated from higher plants and
widely used in modern medicine, 75 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 14
th
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.

13
Genetic Resources Action International (GRAIN). Biopiracy, TRIPs and the Patenting of
Asias Rice Bowl. May 1998. <http://www.grain.org/publications/rice-en-p.htm> accessed on 9 Jan.
2002.
12
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 PTOs 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.

14
Intellectual 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
13
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 mouses 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 1980s 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 GATTs successor World Trade Organization (WTO).

This
will be discussed in detail in Chapter four.
14
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 2001
15

Country Production of Soybeans
(000 MT)
Global 176.639
US 78.668
Brazil 37.675
Argentina 26.737
China 15.450
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.
15
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 Agracetuss 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 2.000 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 industryto
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

17
Vijaya 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.
17
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 countrys indigenous biodiversity has been stolen as well.




Turmeric

18
United Nations Childrens 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

19
Vandana Shiva, 2002. pp. 49-68.

20
GRAIN, Patents and Pirates, 2000. 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 Moores 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 3 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 100.1994. <http://www.ifpri.org/pubs/abstract/
abstr100.htm> accessed on 17 Sept., 2003.
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 1975 stated that no one could patent whole plant
varieties.

26
Medhi, 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.

28
GRAIN, Patents and Pirates, 2000. 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 states 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


35
Anthony 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 breeders 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
nunn( :jLnu, n(:nun:aun(:L::nujv(uivn1u1aut1n(nn(uln::LL avsLn:.
1vu(unusL:nn(1v,n(aun:nuv(1vu(au, 2538. [Pinadda Rattapat, Patent Protection of
Biotechnological Inventions, ML Diss. , Chulalongkorn University, 1995.]

39
Harold C Wegner, Patent Law in Biotechnology, Chemicals, and Pharmaceuticals. 2 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.

41
loc. 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 15 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 ones 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. 5-16.

43
nunn( :jLnu, 2538. |Pinadda 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.


48
Ibid. 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 worlds 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. 3ed. 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 CBD
52
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. 2
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.

55
loc. 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


56
loc. cit.

57
loc. cit.

58
Calvin O.Qualset, Edward C.A. Runge and John J. Mortvedt, Foreword, Intellectual
Property Rights Associated with Plants. ASA Special Publication number 52, 1989. 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. 2
nd
edition.
Aldershot: Ashgate Publishing Ltd., 2000. 274-6.

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, 2003.
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 breeders 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.

63
nnnun n1:nu, nnvu(u::v1(uL::ivn1(n1uatavs avsLn: ua:
in:auvu(un(:n(.nunn:uv 3 n:uivn : uns::u, 25+5. [Jakkrit K., International Law Related to
Copyrights, Patent and Trademarks. 3
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. 17-20 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. 142-3.


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 19,
1980. 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


64
WIPO. 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

65
WIPO. 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 159
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 (1) 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, 2003.
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 27.3 (b).
As required by the TRIPS Agreement, the review of Article 27.3(b) began in
1999. The topics raised in the TRIPS Councils 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 1978 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 Councils work on these topics is to be guided by the TRIPS Agreements
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

74
World Trade Organization, The Review of the TRIPs Agreement, <http://www.wto/trips
review.htm.> accessed on 5 May, 2003.

75
Jayashree Watal, Intellectual Property Rights in the WTO and Developing Countries. The
Hague: Kluwer Law International, 2001. pp. 128-184.
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. 2000.
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 Indias 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 countrys 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

79
loc. 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.

82
Loc. cit.

83
Genetic Resources Action International (GRAIN), Patents on Life: the Final Assault on the
Commons Patents and Pirates. 3
rd
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. RiceTecs strain possesses the same qualities, long grain, distinct aroma,


85
Oryza, 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.

86
Lal 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 indication
89
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




88
Ibid. 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.
.
90
Lal 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 way
91
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
products 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 Banks 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, RiceTecs
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 gods
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



95
Section 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 1
st
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 Indias 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


Indias pre-TRIPS IPR legislation, with its wide range of exemptions for the
agriculture, horticulture and pharmaceutical sectors, combined with Indias 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 Indias law
were not amended properly to allow this (lacking transparency, failing to amend
the Patent Act itself, etc.).
98



97
Loc. 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 Indias reaction to biopiracy


Indias 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. Indias 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 Indias 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 WTOs 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 29
104
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
applicants 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. Indias new patent laws 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 Indias
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 Indias
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



105
Frahana 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 worlds 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 2001
106
,
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

106
FAO. 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 Thailands 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 (au un iva(n(utu), 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 Schcking, 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, Sankyos 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 companys 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 Sankyos 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
1m:u iauu(:n 1:aant1n(n," n:uivn: in:at(uavsnuLnn(1vu, 25+1. vu(
5-12. |Witoon 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 Asias 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.

112
Ibid.

113
ant(n t(1aa(n, n1(uva(nva(uv(uv:nu(n:nusnt" lu ant(n t(1aa(n auu(:
au(u1(au naLna :(u:u(n: Ln. n1(uva(nva(utaunusnt n:uivn: an(Lu1uinan(:
nou(L::ivn1vu, 2538.vu( 3-10. |Apichart 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
1m: iauu(:n, n:n1:aant1n(nva(nn," vu( 32-5/. [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
products 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.

115
Ibid., p. 41.

116
Ibid., p. 41.

117
Ibid., p. 41.

118
Prangtip 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

119
Noel Rajesh, And now, Thai Jasmine rice. <http://www.indiatogether.org/agriculture
/articles/noel_jasmine.htm.> accessed on 5 May, 2003.

120
BIOTHAI, Thai Peoples 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
1m:u iauu(:n ua: nn:, Luvunan::vLnav:nu(n:t1n(nua:
nuLnn(vaunu" :(uu(u1uaLLauL:n1n:un(:avstutuua:avs inun:n:luv:nu(n: t1n(n
ua: nuLnn(vaunu. n:uivn: a(unu(unauvu aLuauun(:1u, 25++. [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
nunn( :jLnu. n(:nun:aun(:L::nujv(uivn1u1aut1n(nn(uln::LL
avsLn:. 1vu(unusL:nn(1v,n(aun:nuv(1vu(au, 2538. [Pinadda Rattapat. Patent Protection
of Biotechnological Inventions, Master of Law Diss., Chulalongkorn University, 1995.]


124
nnn 1vuauL:n. 1in:(:vua:iL:uLivuL11ou(n(:tau::LLn(:nun:au
nt. 1vu(unusL:nn(1v,n(aun:nuv(1vu(au, 2536. [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 Thailands 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 situ
125
germplasm but it is heavily criticized since it is not an organic
law and cannot be applied to foreign private entities.

Thailands Plant Act of 1985 and 1992 regulates the import and export of
germplasm under the Cabinet, but it is used mainly to protect Thailands 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
nnn 1vuauL:n. 1in:(:vua:iL:uLivuL11ou(n(:tau::LLn(:nun:au
nt. 1vu(unusL:nn(1v,n(aun:nuv(1vu(au. [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.
Thailands multi-sectored Network on Community Rights and Biodiversity has
also inserted relevant provisions in Thailands 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 Thailands 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 GSP
127
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 (a(u nu(unn:n::un(:
n(:1uuvut(n ) founded the Subcommittee in Coordinating of Genetic Resources
of Thailand (nn:au n::un(:L::a(uu(uuva un us n::uv(un ttauL::ivn1vu 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
ant(n t(1aa(n, 2538.vu( 3-10. |Apichart Khaosaard, 1995. pp. 3-10.]

129
Ibid., pp. 3-10.


130
i:n nun:n(n, uu1v(unnvu(ulun(:au:nu n(:lt ua:n(:nou(n1(u
va(nva(uv(ut1n(ntauL::ivn1vu. n(n1t(unn(an: n(aun:nuv(1vu(au, 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



131
Department 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.

84
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 WTOs 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
85
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 nations economic
interest is a part of its national security interest, thus threats to the nations
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 Indias 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


132
Office 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.


133
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.
86
pharmaceutical products, according to Article. 70.8
134
of the TRIPs Agreement.
Furthermore, when Indias 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.

137
Loc. cit.

138
loc. cit.
87
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.
88

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.

144
FAO, 2001. p. 26.

145
Ankur 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 `folk 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
RiceTecs 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 Indias and 10 per cent of Thailands Gross
Domestic Product (GDP) relies on agricultural products.


146
Ibid.


147
1m:u iauu(:n ua: nn:, 25++. vu( 38-69. [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 Indias Economy (per cent of GDP)
0
10
20
30
40
50
60
1982 1992 2001 2002
Agriculture
Industry
Services

Source: World Bank, 2003.
149



Figure 2 Structure of Thailands Economy (per cent of GDP)

0
10
20
30
40
50
60
1981 1991 2000 2001
Agriculture
Industry
Services
Source: World Bank, 2003
150


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.

150
Ibid.

91
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
92
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
locals 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.
93
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.
94
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.
95
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
SAARCs 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.


96
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.
97
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
WTOs 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
98
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,
99
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.
100
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.