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Abstract

Across the cultures, knowledge about use of medicinal plants exists in the
form of local folklore available with families, tribes and cultures, handed down
from generation to generation. Some of this knowledge also exists in written
form as well, but is difficult to interpret due to the local script used.

Due to this improper and unstandardized documentation of traditional


knowledge, patents are often granted to parties who are traditionally not the
owners of this knowledge, thereby, leading to conflict in trade interests of the
parties involved. Moreover, a part of the profits made by the patent holders
also does not flow back to the holders of traditional knowledge, thus leading
to discontent amongst the latter.

In addition to this, responsibility for conservation of these medicinal plants


also remains undefined between patent holders and holders of traditional
knowledge. As a result, sustainable management of the resources suffers,
large-scale exploitation of these resources occurs due to profit maximization
by patentee, thereby leading to the extinction of many species with medicinal
value and many more becoming endangered.

This paper tries to trace the history of traditional knowledge about the use of
biodiversity over the centuries, examines existing arrangements for
international trade in medicinal plants and, thereafter, proposes strategies to
be followed by developing countries in negotiations on intellectual property
rights (IPRs).
1.0 Introduction

Since ancient times, medicinal herbs were considered as a gift from gods. In
early cultures of the world, herbal healing usually involved purification rites
and prayers by the priest or priestess who built the foundations of herbal
history and passed on their knowledge through song, chant and story to the
next generation. There is no record of the earliest herbal healings except a
Sumerian tablet from around 2500 BC, which lists popular herbs of the era.
Chinese emperor, Shen Nung, discovered medicinal herbs and composed Pents'ao Ching or The Classic Herbal in 2700 BC (Keville, 1991). Rigveda very

briefly records between 3500-1800 BC, medicinal herbs in Suktas. More


detailed account is in Atharva Veda. Later about 1500 drugs of plant origin
were recorded in native medicine list due to the extensive works of Charak
and Susruta (1).

With onset of many incurable diseases, medicinal plants provide us with a


new hope. Traditional knowledge about wide application of medicinal herbs in
various communities has even led to discovery and development of drugs
that are now used as therapeutic agents. Some prominent ones are digitalis,
morphine, cochicine, artemisinin, podopyllotoxin, salicin, etc.
2.0 Utilization of Biodiversity

It has been estimated that the biodiversity of India amounts to approximately


12.53% of the global biodiversity. The immense biotic wealth of India has
approximately 7000 species reportedly used for the medicinal purposes
mostly for the extraction of rare drugs. Utilization extent shows that there are
about over 0.36 millions ayurveda practioners, 29.7 thousand Unani and 11.6
thousand Siddha specialists in India. Village based health traditions are still
carried on by housewives, birth attendants and vaid-hakeems (herbal
healers), making it 70% of the health care needs of India which is dependent
on the medicinal plants. Such biodiversity rich regions or `hotspots' are found
in various continents across the globe and harbor flora of immense medicinal
importance(2).

The international drug market demand has affected these species of


paramount importance in a drastic manner. The global market of herbal
medicines was estimated at $16.5 billion in 1997, which rose to $22 billion in
2000. Europe dominates international market, with $ 7.2 billion sales in 1997,
followed by Asia with $5.5 billion including markets of Japan of $2.5 billion
(Gruenwald, 1998, 1999). The fastest growing markets for botanical
medicines is found in USA, with 1997 retail sales of $3.6 billion and of $3.87
billion in 1998 (NBJ, 1998). Annual mass- market growth in USA is more that
100% (Brevoort, 1998) (3).

The medicinal plants are ruthlessly exploited in an unsystematic manner


leading to most of the species making an entry into the Red Data Book list
published by IUCN. This list also includes species, which had been a part of
the indigenous traditions and sustainable use since the time immemorial.

Most people in these regions even today live utilizing the benefits from the
herbal plants. Local communities consider the biodiversity of these areas as a
part of their culture and understand need to conserve this for all times to
come (4).
3.0 Traditional Knowledge Systems and Biopiracy

There are about 7000 spp. of medicinal plants and over 15,000 medicines
based on herbal formulations in different systems (5). Further, the traditional
knowledge is drawing global attention as well as patronization due to
awareness regarding the side effects of allopathy. This has not only made the
traditional knowledge systems popular but has also made the indigenous
system prone to `biopiracy' and `patenting' both within the country of origin
as well as outside. One estimate shows that the current value of global
market for the medicinal plants due to traditional knowledge to be alarmingly
at $43 billion! Further this has led to 400% increased efficiency in screening
of medicinal plants (Shiva, 2001) (6). This can be exemplified by grant of
patents on use of products of Neem and Phyllanthus niruri, which had been a
part of the traditional health systems since time immemorial. Although
derived from the indigenous knowledge, the use of products of Neem and
Phyllanthus niruri, WR Grace Company who bagged the patents justifies it to
be novel, as it claims that modernized extraction `processes' constitutes
genuine innovation. So the `product' even though is same as had been used
in Indian traditional systems since time immemorial, the `new process' makes
the same thing novel enough for patenting. This not only implies `wrongful
ownership' of someone else's property but also exploits the rightful owner
without recognizing or protecting the indigenous knowledge. This can be
further confirmed since the patents though can be obtained on slight
modification of the indigenous way of processing for the product, it cannot be
given for indigenous knowledge directly since these are age old practices and
do not meet the three basic criteria for patentability i.e., novelty, nonobviousness and industrial applications.

This false claim on novelty and use of indigenous knowledge for commercial
benefits needs to be checked. It is essential to preserve not only the
traditional and indigenous knowledge but also to preserve the biodiversity of
a locality and culture of the indigenous people from `small time advantages'
in the area of patents, IPRs etc.

Table - I shows some indigenous plants forming a part of the Indian traditional

knowledge over centuries, which have been claimed as novel and patented.

Table - I: List of indigenous plants of India which were patented in other co