IPR protects Indian agriculture
A lot has been said over the consequences of IPR in agriculture, and in areas where knowledge is said to have been traditionally handed down the generations. However, a proper IPR regime can help protect not only the foreign inventors, but also the domestic players. Following is a summary of the present status of IPR in some of the most prominent instances.
In 1993, two American scientists of Indian origin filed a patent for use of turmeric to heal wounds. Initially the specification contained information on the prior knowledge of the various uses of turmeric and it also acknowledged that the pharmaco-kinetics involving the safety toxicity dosage and biological properties of turmeric are well known.
It also said the main object of the invention is the use of turmeric powder at the site of injury by topical application and/or oral intake. The other claims related to optional features of the powder — oral and topical.
The US Patent Office in 1995, granted the patent claim, revesing its earlier ruling that had held the invention not novel.
CSIR challenged it, providing 32 references from ancient texts to show prior knowledge on the use of turmeric as a powder. The US Patent office reexamined the claim, maintained that the invention lacked novelty and revoked the patent.
There are more than 40 patents, mainly for neem pesticides, held by laboratories in the US and Europe. A US company, W R Grace, was granted a patent for neem as a pesticide. India couldn’t challenge it because the patent was for a formulation which increased the shelf life of neem extract. It was a valid patent and so protests had no effect. Indian scientists had been experimenting with this but since they had not applied for a patent for this process, they couldn’t challenge it.
Incidentally, even India has granted more than 80 patents on neem, 48 of them of Indian origin. None of these patents have prevented Indians from using neem nor has anyone paid royalty.
In October 1992, Agracetus Inc, a subsidiary of W R Grace, got a patent for rights on all forms of genetically engineered cotton, no matter what techniques or genes are used to create them. It was challenged in court and the US patent office revoked it in 1994.
Baruch S Blumberg, a US virologist, obtained a patent for a formulation of phyllanthus amarus, a plant used for centuries in south India for the treatment of jaundice. On the face of it, this does not satisfy the criterion of novelty, but Blumberg obtained the patent for viral hepatitis, not mentioned in earlier texts. So his innovation satisfied the criterion of novelty.
In September 1997, Ricetec obtained a patent for calling
aromatic rice grown outside India as basmati and selling it under any brand
name. Ricetec has already been selling brands like Kasmati and Texmati
claimed to be basmati type rice. With the patent, Ricetec will be able
to label its exports of rice also as basmati.
Company claimed basmati is a generic term and that it had invented certain novel basmati lines and grains which make possible production of high quality, high yielding basmati rice worldwide. It claimed to have isolated specific scientific parameters like length-width ratio, starch index, percentage increase on being cooked etc.
Otherwise authentic basmati is said to be available only from India and Pakistan due to the unique and complex combination of environment, soil, climate, sowing practices and genetic variety.
The invention, Ricetec claimed, “is based, among other things, on the surprising discovery that certain basmati plant and grain characteristics and aspects of the growing environment for traditional basmati rice lines are not critical to the perceived quality of the product.”
This is not an issue of patents but geographical indication. This relates to the area of production of a premium product like champagne can only be from the Champagne district of France even if those grapes are grown elsewhere and feta cheese is goat cheese from Greece.
India still doesn’t have any law relating to geographical indication but is expected to use this line of defence to argue its case. Darjeeling tea and other similar products could benefit from this, just as Champagne has.
(c) Liberty Institute, New Delhi, 1999
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