Patent rule change to aid biodiversity protection

Patent rule change to aid biodiversity protection

Mumbai: An October proposal at the Council of Trade-Related aspects of Intellectual Property Rights, or TRIPS, of the World Trade Organization (WTO) that suggested compulsory declaration by patent applicants worldwide of the source of origin of any data related to natural resources is expected to substantially help India to protect its vast biodiversity and traditional knowledge from being exploited by private organizations that don’t share the benefits with local communities where the products originated.

The proposal, mooted by Peru and supported by several countries, including India, Brazil and Tanzania, has now led to an amendment to the TRIPS rule. A deadline for the amendment has also been extended to end-2009 as it requires the ratification of about 100 countries.

Aysha Shoukat, a patent lawyer and an intellectual property rights activist in Chennai, says: “Though India has been vigilant in legislating for the patent protection of traditional knowledge and biological related inventions, many herbs and formulations that constitute the country’s traditional medicine were appropriated by the Western pharma and nutraceutical industry without adequate compensation to the communities, which originally discovered them."

She points to the Naga Jolokia pepper, which originates from the Naga tribal community, as one such example. “Since it has been found valuable for its medicinal properties, a genetic testing was conducted on it to isolate the responsible gene by a foreign institute," she claims. “However, no news thereafter of follow up or benefit and compensation to the Naga tribal community has been discussed yet."

Jeevani, an energy drink developed from a green plant grown in the Agastyar hills of Kerala, is also another case in point, she added. “In this case, despite the granting of a patent for the product to the Tropical Botanical Garden and Research Institute at Thiruvananthapuram, there are loopholes in the system that allow circumvention and misappropriation of the traditional knowledge pertaining to this patent by others."

The traditional knowledge of Jeevani belongs to a tribal community. New York-based Nutrisciences Innovations LLC holds a trademark for this product, which is commercially very successful in the US and Europe.

Similarly, several products, which have their quality or designs associated with geographical origins in India, had also been used by commercial organizations elsewhere without sharing the benefits with the communities who developed them originally.

Shamnad Basheer, an associate at Oxford University’s IP Research Centre, notes: “Though India has built in this provision for disclosures into its patent regime as far back as 2002, unfortunately, there are no provisions in the rules telling us as to what level of ‘disclosure’ would be sufficient in this regard."

“I’m not sure how many patent applicants comply with this provision," he says. “To the best of my knowledge, no patent application has been opposed or revoked on the ground that it doesn’t disclose ‘biological material’ or ‘traditional knowledge’. Therefore, one is not sure at this stage whether or not this provision is being complied with by patentees. One is also not sure if the patent office in India is really enforcing this provision and checking that every application claiming biological material is disclosing the source and origin."

Several community and trade lobbies in India have come forward to secure such rights. The Andhra Pradesh Technology Development and Promotion Centre, for instance, is proposing to secure geographical indication coverage for native art, bearing antecedent of origin to the state.

The other popular traditional knowledge and innovations for which geographical recognition has been sought by the centre includes Nirmal paintings and furniture, and leather puppetry known as Tholu Bommalaata of Nimmalakunta in Andhra Pradesh, Anab-e-Shahi grapes, Venkatagiri and Gadwal sarees.

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