Are we ready to hand over on our life forms?
Mashelkar: Traditional patent systems dealt with industrial products. There has now been a sudden shift from inanimate objects to animate ones like humans and plants. The issue has assumed importance all of a sudden because multinational pharmaceutical companies began picking up leads and developing new products without giving any credit to the local communities who initially possessed the particular knowledge.
I would like to mention here that benefit-sharing with communities still figures low on the priority list of the ministry of environment and forests ( mef ). But we cannot build a wall around India. We also have to check whether every patent has to be challenged and antecedents verified.
The issue is also important because suddenly patents have been granted for plant material like bitter gourd, neem , turmeric, tulsi and basmati rice.The turmeric patent was trivial and should never have been granted. In the new strategy, corporates should fight the patents, like in the case of the turmeric patent.
It is also a question of access to information. When the turmeric issue came up, us patent examiners resorted to electronic and digital databases. We are trying to rectify things by taking steps like incorporating the traditional knowledge base as part of wiponet - an intellectual property digital library - which will connect 300 centres spread across 170 countries.
One idea is to introduce legislation to recognise rural or community knowledge. However, the notion that we should make the us ratify the Convention on Bio-Diversity ( cbd) and bring them around is preposterous. As a practical person, I know just how achievable this is.
We have to come out with specific suggestions on the fundamentals that need to be changed. Without that, it will not be possible. Awareness campaigns are going on and everybody is conscious now, let's suggest actions. For a start Indian intellectual property systems do not recognise oral knowledge. Maybe the country should have a legislation that recognises this.
Gautam: A relevant area in this discussion is that action has been initiated by the ministry of agriculture to have the Plant Variety Protection ( pvp ) and Farmers Right Act ( fra ) in position. Maximum energy and time was spent on aspects such as benefit-sharing and access to genetic resources, the relationship between Intellectual Property Rights ( ipr) , Trade Related Intellectual Property Rights ( trips), cbd and World Trade Organisation ( wto) . Fortunately, developing countries have a common strategy in this regard, but India is way behind schedule. If you want to protect your property, you need to have a proper inventory and authenticated information base and, finally, matching mechanisms for protection.
India is one country which has a 'single window' entry for the exchange of germplasms. The country has often been seen as a guiding force in the whole process. Many people in the country are not aware of what the government is up to or how the process is regulated. There are developed countries that do not have 'single window' entry points for the exchange of germplasm. As far as mechanisms are concerned, India is regarded as a developed country.
Access and benefit-sharing is a standing item even in cbd . National information is provided on the recommendation made at the international level. Some issues from India - like the Kani tribe - have also been raised. We now know for sure that there are traditional knowledges which are going to be adopted and used widely. The best thing at present for the country is to gear up to document that information and make it available to all patent searches. At this stage, that is the only way to protect community rights.
Ghosh: We have repeatedly stated at national and international fora that whenever there is an invention created from community knowledge the particular community will have to be given credit. But even when the cbd provision becomes a law in India, it will not solve things. The solution will come only when rules are framed and procedures of how things will happen are laid out. But we must insist that in the patent application, the source should be stated, especially in case the source is from community knowledge or from bio-diversity of a country. If we do not do that, then we don't even have the right make a claim.
We are practically helpless in protecting our ancient knowledge and our bio-diversity as patents are awarded for novelty, not for traditional knowledge which is old. Actually, we have to make the world community accept that genetic bio-diversity resources or the knowledge based on traditional society has to be documented. Once this is done, under trips, and the cbd provision is interlinked, only then do we stand a chance.
Documentation is a definite but very difficult solution, since it is elaborate and may prove to be a long and arduous task. And there are doubts over whether the us is going to become a party to cbd . However, the indication that I received is that the us is very willing, except that they do not want the wto and cbd provisions to be put in a manner that makes it too tough for them. However, documentation will take several years and it may not be possible for our country alone to undertake the task. If we have an international community where these kinds of tasks are performed, then it may be possible.
I feel the basic philosophy of patenting is not to fight patenting, it is more to recognise the inventor and to see the opportunities arising from the patenting. Unless your inventive capacity or your country's pride is threatened, what is the need of fighting a patent. Primarily, I feel that we should avoid litigation, because we don't get much mileage out of that. Only in rare cases like turmeric, will it stand up in a court of law. If we only adopt a confrontationist stance, we will get nowhere.
Babu: I handle the convention of bio-diversity, which recognises the equitable sharing of the benefits arising out of the use of bio-resources. If the resource belongs to a country, those using it and the associated knowledge should share the benefits. For example, the resource should be shared between the provider and the receiver based on conditionality. Countries are in the process of framing national legislations. But there are a number of complexities involved in introducing the legislation, which is why it requires 3-4 years to become a law. Take the case of our country, after prolonged negotiations the environment minister had a meeting at which representatives from all universities, state governments and ngo s were present. Then the issue was taken up during international consultations from December 1998 until April this year. Following national consensus, it is one of the drafts that has been extensively released and discussed.
When knowledge and resources are accessed from a community, the draft provides that the benefits will go to the community. The detailed rules and parameters have to be worked out but within the national authority, in consultation with the community. This is a very complex matter again, because the word community is not recognised by our legislation. So, rights of the community as of now are not defined in any legislation. Even in the supreme court judgement, community is hardly defined in the country. So, this is a complex issue.
Wherever you can identify the person or community, or the holder of this knowledge or resources and from where it is accessed, the benefit will rightfully accrue to the community or person, unless you have the criteria put in place. Whoever is provided access to this information will have to follow certain principles. There are adequate provisions in the bills pending before Parliament to safeguard the interests and traditional knowledge of communities.