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‘Bio Piracy’ — A
Discussion of Some
Important Cases

The article discusses the issue of large pharmaceutical companies patenting bio-resources that have been traditionally used by the indigenous people of a land.
piracy are examined in this article.
Controversial Cases Involving
patents or plant breeders’ rights) over Traditional Knowledge and
Genetic Resources
Neem (‘Azadirachta indica’) is a tree loquendi in international conventions Turmeric (‘Curcuma longa’) is a plant found primarily in India and other parts derivation arising from cases concerning commercial exploitation of bio-diversity appropriation of resources and knowledge soap, is believed to offer low cost relief University of Mississippi Medical Centre4 interests of the indigenous communities.
(administered both orally and topically) (‘EPO’) granted a process patent8 to the Quite understandably, the indigenous communities are piqued to find that the Department of Agriculture (‘USDA’) over a method for controlling fungi on plants Industrial Research (‘CSIR’) requested by the aid of ‘a hydrophobic extract of and rashes and, therefore, its medicinal (‘NGOs’) in India and the European Union use was not novel. Novelty is as such, an in 1995.10 They submitted evidence to the essential requirement for any patentable effect that the fungicidal effects of Neem countries wait for intellectual property laws to catch up on providing protection Indian agriculturists for centuries and the the Hoodia cactus (‘Hoodia Gordonii’) morality because of the sacred nature of the region.14 Extensive and relatively recent Hoodia cactus is, however, not restricted ‘prior art’ was presented by CIEL, and in to treat allergic reactions in the eyes, treatment did not represent an inventive step and the patent was revoked by the EPO in 2000, six years after its grant. US patent law prohibits, inter alia, the Ayahuasca tree (‘Banisteriopsis caapi or B.caapi’) to produce a ceremonial drink known as ‘ayahuasca’. The shamans use the date of patent application. Thus, the soul’) in religious and healing ceremonies historical use of the Ayahuasca tree was this traditional use of the Hoodia cactus and significant is that at least 72 different Due to this legal technicality, the patentee its beneficial constituents.19 In 1995, 2001, the USPTO went against its earlier decision and decided that the patent for valid, since at the time when the patent acquired the rights to develop and market law did not permit third party challenges to patent claims.16 The US law has since and cure for obesity (a market reportedly an alleged variety of B.caapi that he called ‘Da Vine’. The patent description stated rules on inter partes re-examination of that the ‘plant was discovered growing in a domestic garden in the Amazon rain-forest of South America’.12 The patentee exploitation of the Hoodia, the normally new and distinct variety of B.caapi, the tribes of the Amazon basin and various piracy. They claimed that their traditional the Centre for International Environment Law (‘CIEL’) subsequently filed a re- fact that the existing prior art included Kalahari Desert in southern Africa are one the Da Vine specie of the B.caapi plant of the world’s oldest and most primitive and that the granting of the patent would tribes. The San have traditionally eaten An initial challenge was mounted against on novelty, inventiveness and usability, is not sufficiently sensitised to deal with India’s Agricultural and Processed Food Pursuant to this agreement, the San will receive a percentage of the future royalties of traditional use of genetic resources. the lawyers for RiceTec by deleting four Hoodia cactus.22 As for the San, although patent claims that dealt with the novelty In some cases of bio piracy, patents have almost swindled, they can’t help but be novelty is not as important an issue as to address the identity of the inventor(s). RiceTec’s remaining patent claims were after deleting the term ‘Basmati’ from grown in South Asia, particularly in the countries of India and Pakistan. Farmers resources as it offers protection to new perfected the art of selection and farming were described as having ‘characteristics of basmati rice grain. Basmati rice exports period. It is highly speculative to assume form an important part of the revenues of these agriculture dependent economies.
ready to disclose their best kept secrets in exchange for the 20 odd years of The Basmati saga is not an isolated incident of patenting of the rice grain. The US has been able to maintain a stronghold on the international rice business through effective use of its patent laws. By September 2000, patent law, efforts are being made at an obtained by ‘crossing a selected basmati international level to create appropriate grain American rice’.24 RiceTec claimed lion’s share of these patents, holding 45% in these efforts with the use of national India and Pakistan. It also claimed that Conclusion
rice plants thus bred were of semi-dwarf The above cases are illustrative of today’s indigenous communities. It is hoped that reality that the pharmaceutical industry royalties from the licensing of such national insensitive and high-yielding.25 RiceTec’s is looking towards natural bio-resources communities, in the field of medicine and breeding the new strain of the hybridised rice grain and the rice line itself. The granted to inventions based on traditional Abhinav Bhatt
and marketing the Texan rice, calling it International patent law, which is based Endnotes
20 See, the website of the international Patent Office’ at http://www.twnside.
11 Schultes and Raffauf, The Healing Forest and also see, http://www.
26 An excerpt from the RiceTec’s patent

Source: http://www.lawgazette.com.sg/2004-8/feature1.pdf

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