Journal of Intellectual Property Rights Vol 5 March 2000 pp 80-86

India and Other Asian Countries Losing on Biodiversity

P KVasudeva

Business School, Panjab University, Chandigarh 160014

Bio-piracy is an epidemic. First, it was the patent on neem and its several uses, then came haldi (turmeric), followed by basmati, karela (bitter gourd), kalajeera (black cumb) seeds, and brinjal. Most of these have been an integral part of traditional system of medicine in India. Paper describes how the recently- passed Geographical Indica­tions Bill will help in protecting the Indian biodiversity [rom piracy. As so far these were not properly documented, papers mentions a few effOlis initiated in this direction in the country, and need for the electronic form of records is stressed. A detailed list of bio-pirated plants are given. Description of the patenting of some Indian herbs is presented. A few suggestions for solving the biD-piracy problems are given.

Most ofthe business organizations have wel­comed the passage of the Trademarks, Geo­graphic Indications and Copyrights Bills in the winter session of the Parliament. Out of all the Bills the Geographic Indication of Goods Act, 1999 is the most cruciallegisla­tion that will protectIndian biodiversity from patenting by the foreigners, provided India is able to make an inventory and document its geographic origin products and get them registered und er the Act.

Now that the geographic appellations of the TRIPS Agreement have come into force, it will be able to save the Indian biodiversity from the piracy by other countries. How­ever, it is also essential that Biodiversity and

Plant Varieties Bills are passed to safeguard the biodiversity. India produces innumer­able special varieties of grains, fruits, plants, etc. which have enormous potential for ex­ports.

Geographic Indications

Another point that goes in India's favour in the TRIPS Agreement is the clause of 'geo­graphi c indications' . The issue of geo­graphic indications came to the fore last year after an American agricultural firm Ricetec granted a patent named texmati in the US on a variety of rice called basmati. This caused a furore in India and provoked a demand to fight against the American Patents Office

VASUDEVA: INDIA AND OTHER ASIAN COUNTRIES LOSING 81

move. However, the CSIR, which wanted to contest this patent in US, found it difficult to refute the patent, because the geographic indications were not registered in India. Well-known instances are Champagne and Scotch whisky, which cannot be patented by any country, because their geographic ori­gin lies in their respective countries.

Articles 22-24 of the TRIPS Agreement have virtually become globally accepted regime and provide the rules for the protection of geographic indications or preventing its mis­use. Apart from basmati rice, India has many goods with specific geographic origin: Dar­jeeling tea, Bikaneri bhujia, Maneri laddoo, Agra petha, Mathura pedas, Punjabi lassi, sarson sag, makki roti, idly, dosa, many plant names such as Kasuri methi, Nagori asgandh and so on. None of these has the protection of geographic indication because India had no legislation which allowed the registration of geographic indications.

Biodiversity

India has one of the richest biodiversity in the world . It has been recorded that out of 81,000 species of fauna and 47,000 species of flora , 15,000 are unique to India. The Indian subcontinent contains about 25,000 species of vascular plants, out of which 7,500 are used by folk and other traditional systems of medicine. Many plants are common to all the traditional systems. Several are used either alone or in combination with other plants. The current regulation states that if these drugs are prepared in exactly the same way as laid down in ancient literature and if they are preserved as detailed by the texts, such drugs do not require approval of registra­tion. The drug will however be treated as 'new' whenever a different method of prepa­ration is used.

The subcontinent occupies a unique posi­tion in the world, capable of cultivating most of the medicinal plants used both in modern as well as traditional systems of medicine. Indian community uses 60 per cent of biodi­versity for timber, food, and medicines. The export value of crude drugs from India in the international market has increased 2.76 times between 1985-86 and 1994-95, and now stands at 53.2 million. A systematic survey of all medicinal floras is the need of the hour.

Pharmaceuticals are. among the most lucra­tive areas for the international bio-piracies. Twenty five per cent of US prescriptions are filled with drugs, which have active ingredi­ents from Indian plants. The sale of these drugs amounted to $4.2 billion in 1980 and $15.5 billion in 1990. in EU, Australia, Can­ada and the US market value for both pre­scription and over-the-counter drugs based on Indian plants amount to $ 70 billion. The transnational companies are busy in locating Indian plants and herbs in Himalayas and other tami regions (fertile foothill areas) through their Indian agents.

Inventory and Documentation

The Department of Indian Systems and Ho­meopathy, Govt of India, has come out with an inventory of 2000 medicinal plants and brought out a series of volumes on identifi­cation of medicinal plants. The Department of Biotechnology, Govt of India, has done work in collection, documentation, inven­torization and characterization of medicinal plants. A good amount of documentation on India plants is available in the Wealth o/India (Raw Materials Series) and Glossary 0/ In­dian Medicinal Plants.

A lot more needs to be done about protecting of country's biodiversity. The industry sources are of the view that the most impor-

82 J INTELLEC PROP RIGHTS, MARCH 2000

tant step required is to computerize the pat­ent offices and to document and publicize the traditional medicinal plants and the knowledge of these plants in the country. Maintaining a record of the traditional knowledge of the country on the Internet and then registering them under the Act would ensure that it could not be patented by anyone as it is knowledge in public do­main.

Bio-piracy

Bio-piracy and patenting of indigenous knowledge is a double theft. First, it allows theft of creativity and innovation. Secondly, the exclusive rights established by patents on stolen knowledge and steal economic op­tions of everyday survival based on our in­digenous biodiversity and indigenous knowledge. Over a period, the patents can be used to create monopolies and make eve­lyday product highly priced, says Vandana Shiva Director, Research Foundation for Sci­ence Technology and Ecology.

According to a Patent Alert Service, there were eight patents containing the word Ayurveda or Sidha or Unan i filed in the US patent office in 26 March 1998. While all chemicals, pharmaceutical or agriculture patents containing the word herbal num­bered 1,173, there were only 66 plant and animal derivative patents contain ing the word India. It is only in the recent times that Indian industry has taken serious interest in filing patents, even then it is filing less than 1,000 patents in India and fewer than 100 in the US as compared to the leading Japanese companies which individually secure more than 1,000 US patents annually.

India will have to be much more serious to fight for the protection of bio-piracy because its indigenous wisdom and wealth is being

taken away. Basmati is one such example, but if timely action is not taken, India may lose a substantial part of its ancestral bio­diversity treasure.

The Council of Scientific & Industrial Re­search (CSIR) had very successfully chal­lenged the patent on wound-healing properties of turmeric in 1997 and the dis­pute over neem patent is almost upheld in India's favour. If we continue contesting pat­ents in US Court it will be a very expensive proposition, with the cost running into crores of rupees. The worst is that India has no idea as to how much of its natural wealth has been burgled nor has it erected any legal bulwarks to keep the thieves at bay. The following are few details of the Indian bio-pi­racy:

a) Adarak (Zinger o/ficinale) -The Ayur­vedic usage of this product is for the cure of asthma, constipation, cough, stomach- ache, inflammation, respira­tory diseases, arthritis, nausea and ear pain. There are four companies that have obtained US patents, two on snor­ing and one on its anti-inflammatory properties.

b) Angoor (Vitis vini/era) - Its Ayurvedic uses are for anaemia, constipation, general weakness, jaundice, asthma, gout, alcoholism, fever and cough. The US has patented nine of these and at least four of them have been patented on properties systematically studied in Ayurveda.

c) Bhu Amla (Phyllanthus nirurt) - It is used in Ayurveda for the cure of cough, asthma, inflammation, fever, wounds, urinary infection, jaundice, ul­cers, and sores. Four companies have patented this product, two by Fox

VASUDEVA: INDIA AND OTHER ASIAN COUNTRIES LOSING 83

Chase Cancer Centre, USA. One of them is for treating jaundice.

d) Haldi (Curcuma longa) - Ayurvedic usage has been for the improvement of complexion, relieving of etching, cure of anaemia and dyspepsia. Six compa­nies have patented this product for similar properties. One of them had patented it for wound healing, which was revoked last year when chal­lenged by CSIR in US patents office.

e) Indian Mustard (Brassica campestris) - The Ayurvedic usage has been for the cure of impetigo, haemorrhage, mental disorder, rheumatism, stiff neck and influenza. There have been 14 companies like Calgene (US) and Rhone-Poulenc (France) patenting this product.

1) KalaJeera (Cumimum cymimum) -The Ayurvedic usage of this product is as appetizer and digestive, and for di­arrhoea, vomiting, analgesic and uri­nary infections. Two patents have received in US by Rajko Medenica of US for its immunity enhancing proper­ties.

g) Karela (Momordica charantia) - The Ayurvedic usages include cure of con­stipation, worms, urinary infection, vomiting, acidity, arthritis, migrain e, burning sores and psoriasis. Two com­panies have patented this product, one of them being New York University for the treatment of tumours and HIV in­fections.

h) Kathal (Artocarpus integrifolia) - The Ayurvedic usage of this fruit has been for inflammation, wound healing, con­stipation, urticaria, and skin diseases. There have been three US patents of this product. Medical College of Ohio

i)

j)

based on properties known to Ayur­veda has patented two properties.

N eem (Azadirachta indica) -Th e ayurvedic uses are for cure of diar-rhoea, fever, inflammation, jaundice, wounds, snakebite and piles. So far, 65 companies have patented neem includ­ing American, Japanese and European firms. India has taken up the matter in US Courts.

Sharifa (Annona squamosa) -The Ayurvedic usages of this fruit are for cure of inflammation, constipation, uri­nary infection, and infertility. Two companies have patented this product. Bayer of Germany and Perdue Re­search Foundation of USA are using this product for the treatment of infer­tility.

The other bio-piracies that have come to the notice of the Indian government are:

a) Amaltas (Cassia fistula)-Three pat­ents

b) Arand (ricinus communis)-Seven patents

d) Black Nightshade (Solanum nigrum) -Three patents

e) Brahmi (Centella asiatica)-Five pat­ents

1) Choulai (Amaranthus spinosus) -One patent

g) Gaden Balsam (Impatiens blsamina)-One patent

h) Harad (Terminalia chebula)-One patent

i) Isabgol (Plantago ovata)-Two pat­ents

j) Jangli Arand (Jatropha curcas)­Two patents

k) Kali Mirch (Piper nigrum)-One pat­ent

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1) Ku mari (Aloe barbadensis)-Three patents

m) Musali (Curculio orchiodes)-Two patents

Source: Research Foundation for Science Technology and Ecology (RFSTE) .

Patenting of Indian Herbs

Bio-piracy is an epidemic. Earlier, neem, haldi, pepper, harad, bahera, amla, mustard, basmati, ginger, castor, jaramla, amaltas, isabgol, and now karela andjamun have been patented under the US IPR systems.

A patent number 5,900,240 was granted re­cently to Cromak Research Inc based in New Jersey, on edible herbal compositions. It comprised mixtures of at least two Indian herbs selected from a group consisting of Syzygium jambolanum cumini, popularly known asjamun; Momordica charantia (bit­ter gourd or karela); Solanum melongena (brinjal or egg plant) and Gymaema sylvestre (gurmar) as anti-diabetic agents for their proposed use in reducing sugar. Patents had been granted on 4 May 1999 in th e US on edible herbal composition comprising mix­tures of herbs selected from the group con­sisting of jamun, gurmur, karela and brinjal useful as hypoglycemic agents. The inves­tors include two non-resid e nt Indians, Onkar S. Tomar and Kirpanath Borah, along with their American colleague Peter Glom­ski. The patenting of these an ti- diabetic plants has again highlighted the problem of bio-piracy of rich Indian herbal wealth.

A patent issued in the US does not affect us dramatically, says Director General, CSIR, Dr R.A Mashelkar. "It does not mean that one cannot use similar mixture in India for anti-diabetic treatment. Yes, it may affectthe possibility of our exporting such a mixture to US," says Mashelkar. India should be

more active in filing the patents. "Since 1994 when the TRIPS came into force , the US in the following four years had granted 1,890 herbal patents. Most of these have been from China. India's contribution has been meagre," says Mashelkar.

Jamun, which belongs to the guava family, originated in India and now naturalized throughout the far east countries, is a fruit tree of considerable economic value, says K V Peter, Director, Indian Institute of Spice Research, Kozhikode. Extracts of its stems, leaves, buds and flowers possess moderate antibiotic activity against Micrococcus pyo­genous, and aureus. Experiments conducted at the Central Drug Research Institute, Lucknow, show that oral adminis.tration of dried alcoholic extracts of seeds of jam un to diabetic patients reduces the blood sugar level.

The Government of India is yet to take a decision on contesting patents obtained by US firm for karela, jamun, brinjal and gur­mar, because it is still examining and ana lyz­ing the whole issue. While the fruit, leaves and roots of pitter gourd have lr 'lg been used in India as a folk remedy for diabetes mellitus, the leaves of gurmar are useful in the management of maturity onset diabetes. It is an important ingredient in Ayurvedic formulation for diabetes. Their use in the treatment of diabetes is documented in the authoritative treatises such as Wealth 0/ In­dia, Compendium 0/ Indian Medicinal Plants and the Treatise on Indian Medicinal Plants. The patent document has not mention ed the above findings under the 'prior art: states the Intellectual Property Rights (lPR), a bul­letin published by Technology Information Forecasting and Assessment Council (fI­FAC) , DST, GovtofIndia.

With 70 per cent of country's population de­pending on non- allopathic medicines, the

VASUDEVA : INDIA AND OTHER ASIAN COUNTRIES LOSING 85

potential of traditional medication is large. This increases the importance of ensuring that the traditional knowledge base of the country is protected and that the multina­tional companies are not allowed to patent traditional medicines, says the former Con­troller General Patents, Designs and Trade­marks, K V Swaminathan.

Conclusion

The problem of bio-piracy is a result of west­ern style of IPRsystems, and not the absence of such IPR system in India. Therefore, the implementation of Trade-Related Intellec­tual Property Rights ([RIPS) Agreement, which is based on the US style of patent regime, must immediately be stopped. Pi­rac'y is not an aberration in the US patent law. it is intrinsic to it. Article 102 ofthe US Patent Law, which defines 'prior art', does not rec­ognize technologies and methods in use in other countries as 'prior art'. If knowledge is new for the US, it is novel, even if it is a part of an ancient tradition of other culture or cou ntry. This was categorically stated in the Connecticut Patent Law who treated conven­tion , as "bringing the supplY of goods from foreign posts" that is not yet of use among us. Prior art and 'prior use' in other countries were, therefore, systematically ignored in the US laws on monopolies granted on the basis of claims to. invention.

Article 27.2 of TRIPS Agreement offers a way out, i.e. signatories of the Treaty may disal­low patents in those cases where prevention of commercial exploitation is necessary in order to protect human, animal or plant life. We need to use our sovereign powers to reject legally anti-farmer and anti- biodiver­sity technologies. We can always use Arti­cles 7 and 8 of TRIPS to rejec t patent application, which attempts to patent our

indigenous knowledge either directly or in­directly or with trivial modifications.

India has yet to introduce Biodiversity Act, and Protection of Plant Varieties Act. In or­der to protect our bio-wealth, it should be legislated at the earliest, but definitely be­fore the next review of TRIPS Agreement, which is due in 2000. Ministerial meeting at Seattle in November/December 1999 failed and drew a disssension.

India should highlight at the next WTO Min­isterial conference that the TRIPS Agree­ment is modelled on the American patent system, which encourages piracy. The IPR should also be linked with the Convention on the Biodiversity, which seeks to protect the biodiversity resources of the countries.

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