India Protect its Plant Varieties?
article was written in May 2001
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.
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.
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
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.
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.
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.
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!
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.
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.
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.
Variety Protection and Farmer's Rights (PVPFR) Bill
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.
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.
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.
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