Wto, Patents On Lifeforms And Amendments In India's Patent Law
On 26th of December, the day of the tsunami, the Government of India introduced a Patent Ordinance which we named the tsunami law, since it threatens to tear down the entire fabric of food security and health security we had built carefully and democratically since independence, by creating patent monopolies for seeds and medicines.
A huge movement evolved to resist the law for establishing corporate monopolies in vital sectors which had been kept out of the 1970 Indian Patent Act in order to ensure that food and healthcare were affordable and accessible for all, especially the poor. Agriculture plants, seeds, life forms were excluded from patentability, and medicines could only be covered by process patents, not product patents. With the left, we formed a Joint Action Committee to stop the Patent Ordinance. On 26th of Feb a rally of mass organizations gave a clear message to Parliament that dismantling the protections for the public interest and public domain built into the 1970 act was unacceptable to the people of India.
On 22nd and 23rd March the Patent Ordinance was debated in Parliament and passed with a few amendments to the amendments to the 1970 Act agreed to by the Community Party of India (Marxist) CPM and the government. That the entire left did not fully support the agreement with government to pass the law has been indicated by statements to the media by A.B. Bardhan of CPI, Abani Roy, leader of Rashtriya Socialist Party and Debrata Biswas of the Forward Block.
Ironically, the BJP, which had drafted the Ordinance in 2003 when it was in power as the National Democratic Alliance (NDA), did not support it when it was placed before Parliament. The NDA rejection and the rejection by many smaller parties, if joined by the left would have led to the collapse of the ordinance and hence would have created a major dent in the W.T.O. TRIPS edifice, which in any case is supposed to be reviewed and reformed. Patent law, and other laws like copyrights designed, have been inappropriately taken into WTO and lumped together as "intellectual property". As President Lula said at the World Social Forum, "intellectual yes, property no".
The vote on the Indian Patent Act was not just a vote on an Indian law but on the international TRIPS regime. Through the Indian Parliament, one billion people, a sixth of humanity would have voted down TRIPS in the W.T.O. This historical opportunity has been sadly lost by the Indian left, which has started to echo the Congress governments claim that changing India's patent laws to introduce product patents by 1.1.05 was a W.T.O. obligation.
However, the W.T.O.-TRIPS agreement is itself under review.
Article 27.3(b) of TRIPS which introduced patents on lifeforms had to be reviewed in 1999. Article 71.1 allows countries to review the entire TRIPS agreement in light of new information and experience.
Since the Review of TRIPS is part of the Doha Round, no dispute could have been raised for not implementing an international law which is supposed to be changed
While the amendments to the amendments have corrected some anti-democratic processes on pre-and post grant opposition and transition arrangements that were introduced in the Ordinance, the core issue of product patents on seeds, plants and medicines remains, and the threat of monopolies and protection of well defined pubic interest and public domain in law still needs to be addressed.
Methods of agriculture and plants were excluded from patentability in the Indian Patent Act 1970 to ensure that the seed, the first link in the food chain, was held as a common property resource in the public domain. In this manner, it guaranteed farmers the inalienable right to save, exchange and improve upon the seed was not violated.
But recently, two amendments have been made in the 1970 Patent Act. The 2nd Amendment makes changes in the definition of what is NOT an invention. This has opened the flood gates for the patenting of genetically engineered seeds.
According to Section 3(j) of the Indian Patent Act, the following is not an invention:
Any process for the medical, surgical, creative, prophylactic or other treatment of human beings or any process for a similar treatment of animals or plants or render them free of disease or to increase their economic value or that of their products.
In the 2nd Amendment however, the mention of "plants" have been deleted from this section. This deletion implies that a method or process modification of a plant can now be counted as an invention and therefore can be patented. Thus the method of producing Bt. cotton by introducing genes of a bacterium thurengerisis in cotton to produce toxins to kill the bollworm can now be covered by the exclusive rights associated with patents. In other words, Monsanto can now have Bt cotton patents in India.
The Second Amendment has also added a new section 3(j). This section allows for the production or propagation of genetically engineered plants to count as an invention. This section excludes as inventions "plants and animals in whole or any part thereof other than microorganisms but including seeds, varieties and species and essentially biological processes for production of propagation of plants and animals".
The clause thus introduces patents on life forms. Since "microorganism has not been clearly defined, it leaves the term to cover cells, cell-lines, genes etc. Further by using the qualifier "essentially biological processes", it opens the flood gates for patenting of genetically engineered plants and animals. The clause should have only started "plants and animals" will not be patentable. Since plants produced through the use of new biotechnologies are not technically considered "essentially biological," section 3j has found another way to create room for Monsanto's monopolies.
What is most concerning is how the language of section 3j is a verbatim translation into India law of Article 27.3 (b) of TRIPS Agreement. Article 27.3 (b) of TRIPS states:
Parties may exclude from patentability plants and animals other than micro-organisms, and essentially biological processes for the production of plants and animals other than non-biological and microbiological processes. However, parties shall provide for the protection of plant varieties either by patents or by an effective sui-generis system or by any combination thereof. This provision shall be reviewed four years after the entry into force of the Agreement establishing the W.T.O.
As Monsanto had a hand in drafting the TRIPS agreement, it is not surprising that the Monsanto Amendments have also made their way into India's patent laws.
However, Article 27.3(b) is under review. The Government should have insisted on the completion of the review, a commitment of the Doha Round, instead of changing India's Patent Law. As a result of sustained public pressure, after the agreement came into force in 1995, many Third World countries made recommendations for changes in Article 27.3(b) to prevent biopiracy. India, in its discussion paper submitted to the TRIPS Council stated:
"Patenting of life forms may have at least tow dimensions. Firstly, there is the ethical question of the extent of private ownership that could be extended to life forms. The second dimension relates to the use of IPRs' concept as understood in the industrialized world and its appropriateness in the face of the larger dimension of rights on knowledge, their ownership, use, transfer and dissemination.
Informal system, et. The shrutis and in the Indian tradition and grandmother's portions all over the world get scant recognition. To create systems that fail to address this issue can have severe adverse consequences on mankind, some say even leading to extinction.
Clearly, we must re-examine the need to grant patents on life forms anywhere in the world. As we continue to assess this situation, in the meantime it may be advisable to:
1. Exclude patents on all life forms.
2. If (1) is not possible, then we must exclude patents based on traditional/indigenous knowledge and essentially derived products and processes from such knowledge.
3. At the very least, we must insist on the country of origin to disclose the biological source and associated knowledge, and obtain the consent of the country providing the resource and knowledge, to ensure an equitable sharing of benefits."
To prevent competitors from selling seeds and to prevent farmers form saving seeds, Monsanto has now turned to the patent laws to get monopoly rights. The Monsanto Amendments of India's patent laws are a logical consequence of the clearance for the commercial planting of GMOs in Indian agriculture, with the March 26 2002 decision of the Indian government to allow Bt. cotton.
Patents on seeds are a necessary aspect of the corporate deployment of GM seeds and crops. When combined with the ecological risks of genetically engineered seeds like Bt. cotton, seed patents create a context of total control over the seed sector, and hence over our food and agricultural security.
Looking with closer analysis, there are three ways that the 2nd Amendment and 3rd Amendment of the Indian Patent laws have jeopardized our seed and food security, and hence our national security.
Firstly, it allows patents on seeds and plants through sections 3(i) and 3(j), as we saw above. Patents are monopolies and exclusive rights which prevent farmers from saving seeds; and seed companies from producing seeds. Patents on seeds transform seed saving into an "intellectual property crime".
Secondly, when combined with the product patents of the 3rd Amendment, Patents on Life in the 2nd Amendment can mean absolute monopoly. A decision on a plant patent infringement suit has set a new precedent for interpreting plant patent coverage. In the case of Imagio Nursery vs. Daina Greenhouse, Judge Spence Williams, for the U.S. District Court for the Northern District of California, ruled that a plant patent can be infringed by a plant that merely has similar characteristics to the patented plant. When combined with the reversal of burden of proof clauses of TRIPS, this kind of precedence based on product patents can be disastrous for countries from where the biodiversity that gave rise to those properties was first taken.
Patent protection implies the exclusion of farmers' right over the resources having these genes and characteristics. This will undermine the very foundations of agriculture. For example, a patent has been granted in the U.S. to a biotechnology company, Sungene, for a sunflower variety with very high oleic acid content. The claim was for the characteristic (i.e. high oleic acid) and not just for the genes producing the characteristic Sungene has notified others involved in sunflower breeding that the development of any variety high in oleic acid will be considered an infringement of its patent.
Thus a company can introduce traits through genetic engineering, and then claim monopoly on the trait even in traditional varieties through a product patent. A product patent in effect says that it does not matter how a property was created, came into existence, whether a result of evolution, or farmers breeding, or genetic pollution is patent infringement and theft.
Our saline resistant rices, our high protein wheats are all vulnerable to biopiracy through product patents. And our farmers are liable to be sued for piracy if farmers rights are not explicitly protected in future amendments of the Patent law.
Thirdly, genetic pollution is inevitable. Monsanto will use the patents and pollution to claim ownership of crops on farmers' fields where the Bt. gene has reached it through wind or pollinators. This has been established as precedence in the case of a Canadian farmer, Percy Schmeiser, whose canola field was contaminated by Monsanto's "Round up Ready Canola," but instead of Monsanto demanded $200,000 fine for "theft" of Monsanto's "intellectual property". Thousands of U.S. farmers also have been sued for contaminated crops. Will Indian farmers be blamed for theft when Monsanto's GM cotton contaminates their crops? Or will the government wake up and enforce strict monitoring and liability?
In countries, where plant patents are not allowed, patenting genes is available as an opening for patenting properties and characteristics of the plant, and hence having exclusive rights to those properties and characteristics. This is how Monsanto was able to establish monopolies on seeds through patents on genes in Canada, even though Canada does not allow patents on life forms.
These issues on patents and lifeforms and seed monopolies will not disappear. They will have to be addressed in W.T.O. and in the Indian parliament. The Patent debate is not over, it has just begun. And in changing the distorted, unjust, illegitimate "intellectual property" regime of W.T.O. local and national actions will be as relevant as international negotiations. After all, it was Gandhi picking up a handful of salt on Dandi beach that shook up the British empire. That is why following Gandhi's Salt Satyagraha.
Millions of farmers have made a commitment through the Seed Satyagraha (Bija Satyagraha) to not obey seed patent laws just as Gandhi refused to obey the British Salt laws. The Congress Government is currently reenacting Gandhi's 1930 Dandi March to break the Salt laws. While the Government enacts a historical march for freedom while imposing Patent laws for seeds that are more far reaching than the Salt laws, we have been undertaking a real Satyagraha against the seed Patent laws. Five million peasants have taken a pledge to not obey laws for patent monopolies on seeds and plants.
On 2nd April we handed over to the Prime Minister pledges from Seed Satyagrahis across the country who have declared that seed saving and seed sharing is our duty. We will not allow patents on seeds to turn our duties into crimes of intellectual property. We will stay free, and we will continue to defend freedoms of farmers and the freedoms of all species and lifeforms.