Can India Protect its Plant Varieties?

By Utkarsh Ghate

This article was written in May 2001

Adaptability

The success of much celebrated Indian culture that blends diversity into unity greatly depends on its flexibility. It is this quality that has absorbed waves of aggression and evolved them as a strain of Indian culture. The success of harbingers of the culture also lies in their efficient use of resources to overcome exacting situations. This is seen from the advanced water management techniques while colonising the Rajasthan deserts or intelligent use of inhospitable hills of Western Ghats by King Shivaji in fighting the mighty enemy accustomed to wars in the plains. It is these techniques of absorbing new cultures and turning apparent weaknesses into strengths that would help the country to not only survive but even flourish in the new regimes of globalisation.

TRIPS Obligations

India today faces an uphill task of holding its ground, given the trade barriers favourable to industrialised countries. These countries have forced developing countries like India to agree to GATT (General Agreement on Trade and Tariff, 1994) convention. TRIPS (Trade Related Intellectual Property Rights) are an important component of GATT. It obliges member countries of GATT to provide patent or similar protection to innovations from all areas of technology. This includes pharmaceutical and agricultural sectors, traditionally kept outside the preview of full or partial IPR protection by most of the developing countries like India.

IPRs must be provided to domestic and foreign innovations alike. Thus, importing a patented product and its sale will be gradually allowed, though the Indian law today mandates that patented innovation must only be manufactured domestically. The emerging IPR regime may not cost Indian industry all its markets soon but it may later be edged out in the area of new, value-added products, which will be patented and placed outside the competitive marketing domain.

IPR bills in the Parliament

The United States had complained to World Trade Organization (WTO), an overriding multilateral body to implement the GATT that India has not updated its IPR legislations as per its TRIPS obligations. India sought time till 2005 A.D. for this purpose, but the WTO ruling did not allow time beyond 2000 A.D. If India fails to comply with this deadline, the threat of multilateral sanctions loom large, which will be disastrous to Indian industry and economy. Indian government has therefore tabled a number of amended or fresh bills for the approval of the Parliament.

Importantly, these include the Patent (second amendment) and Plant Variety Protection and Farmer's Rights Bill. Our strategy for the impinging intellectual war should be like that of Shivaji, to attack enemy in areas and with the ammunition most suited to us. In the biological realm, our advantage clearly lies in the vast store of information we have in the form of traditional knowledge, both public and private. Our success will depend upon its efficient organization and application.

An example of such a strategy can be found in the infamous Turmeric patent case. Here, two American scientists of Indian origin had sought a US patent on the use of Turmeric powder for wound healing, something considered novel in the US. But when the Indian Government produced extensive evidence to prove that such knowledge is common in India since ages and hence not novel, the US court revoked the patent. The US patent office wrote to the government of India that availability of a computerized database of traditional knowledge could help in better scrutiny of the novelty claim of the patents and rejection of the frivolous claims. The legal expenses of the Indian government were reimbursed by the convicted party.

This was an exceptionally easy case to win, but the case of the US patent on Basmati rice grown in the US will not be as easy to resolve. It would prevent Indian farmers to sell their Basmati in the US. Later, due to Patent Cooperation Treaty (PCT) the patent may even knock Indian Basmati off the European market, its traditional stronghold. Currently European traders have unilaterally prohibited sale of Basmati other than from the Indian subcontinent under that name or even as Texmati or Kasmati, as attempted by some US based companies. The Indian government is busy collecting evidence that would question the novelty and inventiveness claims of the US patent holders - the RiceTec Corporation. The lack of organized information about the morphometric and other qualities of even a rice variety as famous as Basmati impair Indian efforts!

Patent Amendment Bill

The Indian Patent Act was passed in 1970. It was amended first in 1999, to provide for the Exclusive Marketing Rights (EMRs) and mailbox facility for patent applications in the area of pharmaceuticals and agrochemicals. Now the second amendments bill has been sent to the parliament for approval. The bill drafted by the commerce ministry contains two important provisions to protect indigenous knowledge and biological diversity.

Firstly, no patent will be available to any invention akin to traditional knowledge, whether oral or documented. So cases like the Turmeric patent can be avoided in India. Secondly, each patent application must disclose the source of the basic biological material say a farm or a lab. Besides, it must also specify the country/ies of origin of that biological material say a crop or a bacterium. Lastly, the application must disclose the prior knowledge, including oral, about the invention.

These disclosures can be linked to the access and benefit sharing provisions of the international Convention on Biological Diversity (CBD), 1992 of which India is a member. The convention offers benefits to the countries of origin of biological diversity and communities having knowledge that is put to commercial use. Applications with frivolous claims or disclosures will be rejected. The disclosures will be scrutinized by the patent office first and the later by the public, during the opposition period of six months.

Plant Variety Protection and Farmer's Rights (PVPFR) Bill

The TRIPS obliges us to protect new plant varieties through patents or any other effective system, probably UPOV (International Union for Protection of Plant Varieties, 1978, 1991) or any independent i.e. sui generis system. The PVPFR Bill, 1999 intends to protect the IPRs of the breeder to the new seed but not at the cost of the farmer's rights to any of their cultivars that may have been used in breeding the new variety. Thus, the PVPFR act facilitates farmers to stake their claim in case they feel that their traditional, local varieties are used in the evolution of the new, protected variety. Upon verification, the government will compel the breeder to share the royalty with the farmers. Besides, there will be a gene fund sourced from the tax on the sale of the protected seeds. The gene fund will be used to reward farmers for on-farm conservation of agro-biodiversity.

Challenges Ahead

To fully tap the benefits of these progressive legislations, we must first put in place computerised databases of our biodiversity such as folk varieties and the traditional knowledge. Secondly, both the legislations must be further amended to seek prior informed consent (PIC) of the donor community. This will necessitate submission of information or material transfer agreement (ITA/ MTA) along with the patent application. This is mandated by the CBD for any effective benefit sharing to occur.

Utkarsh Ghate is a trustee with the Pune-based organisation, The Research and Action in Natural Wealth Administration (RANWA) and is involved in proactive nature documentation at Pune city (See: http://www.ranwa.org/punealive). He is also the resident consultant ecologist at the Foundation for Revitalisation of Local Health Traditions (FRLHT), and works on the distribution & threat assessment of medicinal plants and related IPR issues.

He may be contacted at:
The Foundation for Revitalisation of Local Health Traditions (FRLHT),
50, M S H Layout, Anand Nagar, Banglaore - 560 024, INDIA
Ph : 91-080-333 6909, 333 0348, 343 4465
Fax: 91-080-333 4167
Email: g.utkarsh@frlht-india.org