VANDANA SHIVA | 31 MAY, 2016
NEW DELHI: The National IPR policy has clearly been made under US pressure. It was US corporations which introduced IPRs into trade treaties, and it is US corporations that are trying to undo India’s laws and policies. Laws and policies that protect the public interest and the national interest.
India has evolved her patent and IPR laws through democracy. US laws are shaped by corporations. It is the US laws and policies that need to change, not India’s. It is US corporate pressure which created the need for an IPR policy (even though we have implemented TRIPS consistent legislation in India after the US initiated a TRIPS dispute in the WTO).
On 30 September 2014, the US & India issued a Joint Statement on the occasion of Prime Minister Modi’s meeting with President Obama,in the US.
(a)greeing on the need to foster innovation in a manner that promotes economic growth and job creation...committed to establish an annual high-level Intellectual Property (IP) Working Group with appropriate decision-making and technical-level meetings as part of the Trade Policy Forum.
Quite clearly the IPR policy is guided less by the national imperative, and more by US corporate pressure.
“India has cleared its stance on the intellectual property rights policy framework well in time for the upcoming US visit of Prime Minister Narendra Modi,” commerce and industry minister Nirmala Sitharaman said.
But the corporations are not happy - they want more.
“17 US Business groups, including BIO, the Biotechnology lobby group ,and PhRMA have sent a letter to Obama and to Congress on India saying that the IPR policy “falls far short of industry expectations” and that “longstanding challenges” on IP are among the issues that “ensure India remains a challenging place for US companies to do business” they say the Modi’s visit is a great chance to discuss many of these issues that are “limiting India’s own trade engagement and growth”
We would like to inform Bio and Monsanto that people of India do not want their toxic products, their false claims about GMOs , and their attempt to own our biodiversity and seeds. In 1998 we had said “Monsanto, quit India”— Millions of farmers came together to send a clear message that India’s biodiversity belongs in the commons. We continue to say it and act so we are free of GMOs and patents and IPRs on seeds. Now, even the Government has agreed.
Indian policies and laws should be written in India, by Indians, for Indians; not by the US business interests, in US, for the US and US corporations.
While the corporate pressure has been on India since the 1990’s, we have stood firm as a sovereign nation. It would be against India’s national interest and sovereignty to undo our gains in the IPR area through an IPR policy written under US corporate direction.
There can be no safeguards if what is not allowed, under Indian law, becomes permissible through a backdoor policy.
The most dangerous aspect of the policy is that it subtly suggests changes in India’s IPR and Biodiversity laws. Laws that protect our biodiversity, the order public, and the rights of people to their knowledge and resources, to seeds and medicines.
The vision of the IP policy is based on the false assumption that knowledge owned is transformed into knowledge shared.
The opposite is true.
Once knowledge is owned, it cannot be shared. Intellectual Property Rights are defined as property in the “products of the mind”, including patents. Patents are granted for inventions, and give the patent holder the right to exclude everyone from the use or marketing of a patented product or process. Over the last 2 decades, patent laws have taken a perverse direction under the influence of corporations who want to own life , and establish monopolies over seed and medicine. Such monopolies are violative of article 21 of the Indian constitution which guarantees all citizens the right to life.
Biopiracy is another example of false claims to inventions.
When the policy opens up India’s Biodiversity and Traditional knowledge to extraction, the Bio-Pirates will have the right to prevent Indians from using our own knowledge and biodiversity.
We have fought against cases of Biopiracy, and won.
Over the past decade, through new property rights and new technologies, corporations have hijacked the diversity of life on earth, and people’s indigenous innovation.
Patents on life are a hijack of biodiversity and indigenous knowledge; they are instruments of monopoly control over life itself. Patents on living resources and indigenous knowledge are an enclosure of the biological and intellectual commons. Life forms have been redefined as “manufacture”, and “machines”, robbing life of its integrity and self-organisation. Traditional knowledge is being pirated and patented unleashing a new epidemic of “bio piracy”.
To end this new epidemic and to save the sovereignty rights of our farmers it is required that our legal system recognises the rights of communities, their collective and cumulative innovation in breeding diversity, and not merely the rights of corporations. It is the need of the hour to evolve categories of community intellectual rights (CIRs) related to biodiversity to balance and set limits along with boundary conditions for protection. The Intellectual Property Rights as evolved are in effect, a denial of the collective innovation of our people and the seed sovereignty or seed rights of our farmers.
1. Patenting of Neem
The patenting of the fungicidal properties of Neem was a blatant example of biopiracy and indigenous knowledge. But on 10th May, the European Patent Office (EPO) revoked the patent (0436257 B1) granted to the United States Department of Agriculture and the multinational corporation W. R. Grace for a method of controlling fungi on plants by the aid of an extract of seeds from the Neem tree. The challenge to the patent ofNeem was made at the Munich Office of the EPO by 3 groups : The European Parliament’s Green Party, Dr. Vandana Shiva of RFSTE, and the International Federation of Organic Agriculture and challenged it on the grounds of “lack of novelty and inventive step”. They demanded the invalidation of the patent among others on the ground that the fungicide qualities of the Neem and its use has been known in India for over 2000 years, and for use to make insect repellents, soaps, cosmetics and contraceptives and the neem patent was finally revoked.
2. Biopiracy of Basmati
On 8th July 1994, Rice Tec Inc, a Texas based company, filed a generic patent (Patent No. 5663484) on basmati rice lines and grains in the United States Patent and Trademark Office (USPTO) with 20 broad claims designed to create a complete rice monopoly patent which included planting, harvesting collecting and even cooking. Though Rice Tec claimed to have “invented” the Basmati rice, yet they accepted the fact that it has been derived from several rice accessions from India. Rice Tec had claimed a patent for inventing novel Basmati lines and grains.
After our protests, and our case in the SC of India, the U.S. Patent and Trademark Office struck down most sections of the Basmati patent. The basmati victory was our second Biopiracy victory.
3. Syngenta’s Attempt at Biopiracy of India’s rice diversity
Syngenta, the biotech giant, tried to grab the precious collections of 22,972 varieties of paddy, India’s rice diversity, from Chattisgarh in India. It had signed a MoU with the Indira Gandhi Agricultural University (IGAU) for access to Dr. Richharia’s priceless collection of rice diversity which he had looked after as if the rice varieties were his own children. The mass agitation by the peoples’ organization, farmers’ unions and civil liberty groups, women’s groups, students’ groups and biodiversity conservation movements against Syngenta and IGAU bore result and Syngenta called off the deal.
4. Monsanto’s Biopiracy of Indian Wheat
The next major victory against biopiracy for Navdanya came in 2004 when the European Patent Office in Munich revoked Monsanto’s patent on the Indian wheat variety, Nap Hal. Monsanto, the biggest seed corporation was assigned the patent (No. EP 0445929 B1) on wheat on May 21st, 2003 by the EPO under the simple title, “plants”. On January 27th, 2004 The Research Foundation for Science, Technology and Ecology along with Greenpeace and Bharat Krishak Samaha filed a petition at the EPO challenging the patent rights given to Monsanto, leading to the patent being revoked.
5. ConAgra’s Biopiracy claim on Atta (Wheat flour)
Atta, a staple food and ingredient within India, is currently under threat from the corporation ConAgra who filed a “novel” patent (patent no 6,098,905) claiming the rights to an atta processing method, and was granted the patent on August 8th, 2000. The method that ConAgra is claiming to be novel has been used throughout South Asia by thousands of atta chakkis, and so cannot justly be claimed as a novel patent.
6. Monsanto’s Biopiracy of Indian Melons
In May 2011, the US company Monsanto was awarded a European patent on conventionally bred melons (EP 1 962 578). These melons which originally stem from India have a natural resistance to certain plant viruses. Using conventional breeding methods, this type of resistance was introduced to other melons and is now patented as a Monsanto “invention”. The actual plant disease, Cucurbit yellow stunting disorder virus (CYSDV), has been spreading through North America, Europe and North Africa for several years. The Indian melon, which confers resistance to this virus, is registered in international seed banks as PI 313970. With the new patent, Monsanto can now block access to all breeding material inheriting the resistance derived from the Indian melon. The patent might discourage future breeding efforts and the development of new melon varieties. Melon breeders and farmers could be severely restricted by the patent. At the same time, it is already known that further breeding will be necessary to produce melons that are actually protected against the plant virus. DeRuiter, a well known seed company in the Netherlands, originally developed the melons. DeRuiter used plants designated PI 313970 – a non-sweet melon from India. Monsanto acquired DeRuiter in 2008, and now owns the patent. The patent was opposed by several organisations in 2012.
At the Milan Expo 2015, during the Women’s conference organised by Emma Bonino, Italy’s former foreign Minister, I was invited to give a keynote address. In a panel following my address, a representative of the Gates Foundation talked of how the Foundation was financing the innovation and invention of climate resilient crops through new technologies. When I asked him which farmers varieties they were using, he was silent.
Climate resilience is a complex trait, and cannot be “engineered” through the crude tools of transferring single gene traits from one organism to another.
What corporations and the Gates foundation are doing is taking farmers varieties with known climate resilient traits from public gene banks, mapping their genome, and taking patents on the basis of guesswork and speculation, about which part of the genome contributes to the known trait.
Like Columbus — setting out for India, getting lost and arriving in the Americas, “discovered” “America” — Gates and Monsanto are “discovering” climate resilience.
Today Biopiracy is carried out through the convergence of information technology and biotechnology. It is done through taking patents by mapping genomes and genome sequences. While living seeds need to evolve in situ, patents on genomes can be taken through access to seed ex situ. This is where the Svalbard seed bank, also called the Doomsday vault comes into the picture. Bill Gates and the Rockefeller Foundation are investing heavily in collecting seeds from across the world and storing them in this facility in the Arctic .
Diversity Seek (DivSeek) is a global project launched in 2015 to map the genetic data in the peasant diversity of seeds held in gene banks. It is funded by Bill Gates. It robs the peasant of their seeds and knowledge, it robs the seed of its integrity and diversity, its evolutionary history, its link to the soil, and reduces it to “information” and “data”. It is an extractive project to “mine” the data in the seed. SEVEN MILLION CROP ACCESSIONS are in public seed banks. DivSeek could allow 5 corporations to own this diversity.
The IPR policy of a a strong, sovereign India and a biodiversity and knowledge rich civilisation needs to prevent its take over by foreign interest.
India needs to remind the US — at this fragile moment of human history — that we have evolved the deepest knowledge of Ayurveda, and the richest Biodiversity in Agriculture, not through privatisation and IPRs but through the philosophy Vasudhaiva Kutumbhakam, the Earth family.
Our ancestors did not put their names on the texts they wrote. They contributed to a collective, cumulative process of innovation, creativity, wisdom — not the philosophy behind IPRs, of privatisation of knowledge for profits and rent collection. They evolved knowledge for the “Common Good” — Sarve Bhavantu Sukhna — not private greed which promotes “Sarve Bhavantu Dukhina”.
Farmers committing suicide because of seed monopolies, as has happened with Bt cotton in India, patients dying due to lack of access to affordable medicine because of patent monopolies, pollinators and soil organisms dying because patented RoundUp and other herbicides are being pushed in Agriculture through the promotion of Roundup Ready GMOs, farmers in Sri Lanka dying because of Kidney Failure because of the spread of Roundup, are all signs of Sarve Bhavaintu Dukhina.
Patents on life violate the “Ordre Public” or moral order embodied in the philosophy of Vasudhaiv Kutumbhakam, that all beings on earth are family. IP laws need to be subjected to ethical criteria, criteria of justice, and on a clear definition of invention.
Life-forms, plants and seeds are all evolving, self-organised, sovereign beings. They have intrinsic worth, value and standing. Owning life by claiming it to be a corporate invention is ethically and legally wrong. Patents on seeds are legally wrong because seeds are not an invention. Patents on seeds are ethically wrong because seeds are life forms, they are our kin members of our earth family.
On criteria of rights of nature (Vasudhaiv Kutumbhakam) and people’s rights, India’s laws are strong, US laws are weak.
When the US talks of strong patent laws, it is restricting itself to the corporate interest. On criteria of corporate rights at the cost of nature and people, US laws are strong. On grounds of ethical considerations and social and ecological justice, they are weak. Instead of India being bullied to destroy her civilisational legacy of Vasudhaiv Kutumbhakam, her carefully and democratically evolved laws related to Biodiversity, the Rights of Mother Earth, and rights of people to their collective intellectual and cultural heritage, it is time for the US government to stop being an instrument of the ethically, scientifically and legally perverse construction of global corporations to define life as their invention and property.
It is time to revisit our IPR policies in the context of our civilisational imperative and our constitution, in terms of the public interest and the national interest. Let it not be recorded in history that in 2016 India was recolonised through an IPR policy that gave away our rich biodiversity and knowledge, our freedom and sovereignty.
(These are extracts from a note written by Dr Vandana Shiva made available to The Citizen. Dr Shiva is an Indian scholar, environmental activist and anti-globalization author. Shiva, currently based in Delhi, has authored more than twenty books.)