Harish Mehta, Business Times 7 Feb 08;
Scholars and lawyers believe biopiracy has thrived because of vagueness in US patent law
UNTIL recently, only a small group of developing countries were engaged in fighting the battle against biopiracy. Now a large group of the Least Developed Countries (LDCs) have thrown in their support, finally waking up to the need to protect their own resources from biopirates from rich nations.
Battle-lines were drawn some time ago between the rich industrialised nations on the one hand, and the developing countries on the other over the contested issue of revising the Trips (Trade Related Intellectual Property) agreement of the World Trade Organization (WTO) as it relates to biological resources.
This is despite the Trips agreement which requires a review of Article 27.3(b) which deals with patentability or non-patentability of plant and animal inventions, and the protection of plant varieties. As a WTO website says: 'Paragraph 19 of the 2001 Doha Declaration has broadened the discussion. It says the Trips council should also look at the relationship between the Trips agreement and the UN Convention on Biological Diversity, the protection of traditional knowledge and folklore.'
It adds that the Trips council's work on these topics is to be guided by the Trips Agreement's objectives (Article 7) and principles (Article 8), and must take development issues fully into account.
The developing countries have long argued that it is necessary to put in place safeguards in the agreement in order to stop Western firms from stealing their traditional knowledge.
Efforts of the developing countries to revise Trips has been strengthened with the support of the LDCs, which include 50 countries including Afghanistan, Cambodia, Lesotho, Maldives, Nepal, Somalia, Sudan, Uganda, Yemen and Zambia. They have all decided that they need to ensure their own biological resources are protected in future. The bargaining power of the developing countries within the WTO has thus been strengthened with the support of the LDCs.
Developing countries such as India, Brazil, China, Pakistan, Colombia, Cuba, Thailand and Tanzania had requested the WTO that the Trips agreement should include a clause making it necessary for patent applications to disclose the origin of the biological resource being patented. They also wanted the patent applicant to share the financial benefits with the country of origin.
In December a group of LDCs led by Lesotho has asked the Trips council to add their group to the list of supporters of the proposal to revise the Trips agreement.
With the support of the LDCs, developing countries' attempts at framing new multilateral rules to check biopiracy has been strengthened because the support base has widened. Without strong multilateral rules, the developing countries and LDCs remain at risk from biopiracy.
Developed countries such as the United States, members of the European Union, Japan, Switzerland and Australia reject any attempt to revise Trips. They have made the counter-proposal that countries should create national laws to deal with biopiracy.
Recent history shows just how unfair the position of the developed world is. At the heart of the effort to protect biological resources is the Convention on Biological Diversity, which was written in 1993. This document, in theory, gave countries the rights over their biological resources, and warned biopirates that they could no longer simply grab whatever was there for the taking.
But it remains only a warning because there is nothing to prevent an individual or company from taking a patent on traditional knowledge or any biological resource of developing countries.
As a result, any nation with any claim to traditional knowledge in anything faces the danger of having its biological resources stolen.
Many scholars, environmentalists and lawyers believe that biopiracy has thrived because of vagueness in the United States patent law, especially as it relates to traditional knowledge held by indigenous people and developing countries. Scholars argue the US patent law allows US companies and individuals to take what does not belong to them.
Because US law does not recognise or protect the 'prior art' of other countries, biopiracy has been given carte blanche. Developing countries such as India and Thailand have suffered because Western firms managed to patent basmati and jasmine rice, neem and turmeric. The US government subsequently revoked patents on certain uses of neem and turmeric only when India challenged the issuance of those patents, a long and costly process for poor countries.
Scholars argue that Article 102 of the US Patent Law rejects technologies and methods used in other countries as 'prior art'. Evidence of ancient and traditional knowledge owned by indigenous peoples and nations is always routinely rejected.
Therefore, a review and amendment of Trips should start with rigorous scrutiny of the weaknesses of the US intellectual property rights system. There is far too much at stake for the developing countries and the LDCs to do anything less.
Indeed, a report prepared for the United Nations Development Programme in 1994 said that if developing countries were compensated a mere 2 per cent in royalties for global seed industry sales of US$15 billion, and 20 per cent for pharmaceutical products derived from developing countries' plants, they would be owed an estimated US$5.4 billion by the developed countries. It is anyone's guess what the royalties would be currently. Clearly, it would be far more.
Thus a revision of the Trips regime is of utmost importance because an estimated 90 per cent of the earth's biological resources is located in Africa, Asia and South America. Indigenous communities that have developed and nurtured such crops and plants for food and medicine are not being compensated for the material and knowledge that is taken from them.
It must be hoped that the combined influence of the developing countries and the LDCs may succeed in effecting much needed reform to colonial-era attitudes among the rich nations.
