South Asia Watch on Trade, Economics & Environment (SAWTEE)

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Disclosure as positive obligation
Published: The Kathmandu Post, 1 October 2004
By: Ratnakar Adhikari

Even the die-hard proponents of free trade like Prof. Jagdish Bhawati find terminology such as intellectual property rights (IPRs) alien to trade lexicon. This is mainly because the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS), by creating a globally harmonised standard for IPR, has perpetuated monopoly and created a conduit for the transfer of wealth from the developing countries to the developed ones. While the objective of the World Trade Organisation (WTO), of which TRIPS is a part, is to remove trade barriers, TRIPS would create new barriers to trade by allowing intellectual property (IP) holders to obtain monopoly rents. Besides, developing countries resisted the inclusion of TRIPS in the WTO mainly because of the enormous costs of its implementation – without any corresponding benefits accruing to them.By 2001, it was found that about 70 developing countries had failed to comply with the TRIPS requirement either because of sheer incapacity or because of their unwillingness. It took good six years for the international community to recognise serious imbalances within the TRIPS Agreement. The demand for the reform of this agreement gained momentum, when the civil society organisations (CSOs)—from the North and the South alike—created pressures on their governments to remedy the problem of inherent inequity in TRIPS.

Such pressures culminated in explicit recognition of iniquitous nature of TRIPS in the Doha Development Agenda (DDA). Ministers instructed the TRIPS Council to examine, inter alia, the relationship between the TRIPS Agreement and the Convention on Biological Diversity (CBD), the protection of traditional knowledge (TK) and folklore, and other relevant new developments raised by the members.

The most controversial provision in the TRIPS Agreement is the one relating to patenting of life forms. While this provision is a boon for the biotechnology and agri-chemical companies of the North, which helped draft the TRIPS Agreement, this has opened the floodgate for the piracy of genetic resources and TK from the South. To add insult to injury, the above-mentioned provision of the TRIPS Agreement provides legal cover to the bio-pirates. The developing countries, rich is biodiversity, could not even take shelter under the CBD to protect their genetic resources and TK, because the CBD is a voluntary international legal instrument, while TRIPS is mandatory. There is every likelihood of TRIPS trumping the CBD in the event of conflict.

Among many conflicts between TRIPS and the CBD the one that is relevant for our purpose is that the CBD calls for the provision of benefit sharing between the commercial users of the genetic resources (including associated TK) and donors of such resources, whereas TRIPS negates such a mechanism by providing exclusive rights to the patent holder, without any obligations whatsoever.

As if injustice inherent in the patent system was not enough, developed countries are also ready to flout the basis tenets of patent in order to appease their industrial lobby. Patent – as per the TRIPS Agreement – can only be provided if it fulfils three criteria, i.e., novelty, inventive steps and commercial application. Mere discoveries are not patentable under the TRIPS Agreement. Let us consider the following real life example.

The United States Patent and Trademark Office (USPTO) granted US Patent 5,401,504 on 28 March 1995 on Use of Turmeric in Wound Healing, to University of Mississippi Medical Center. It is a common knowledge in most South Asian countries that Turmeric has numerous properties – including wound healing. While granting patent, either the USPTO did not examine whether such knowledge was pre-existing or the researchers at the University of Mississippi misled the USPTO into believing that they fulfilled all the criteria for patentibility. The twin major criteria of novelty and inventive steps were not fulfilled, yet the patent was granted.

By granting such a patent, the USPTO provided legal cover to bio-piracy – a University in the USA was provided patent protection for a knowledge that has been pre-existing in Asia for several centuries. The original creators/donors, whose knowledge was used in the process of obtaining patent, were not compensated in any manner whatsoever.

Fortunately, the patent was successfully challenged by the Center for Scientific and Industrial Research (CSIR) – an Indian government undertaking and subsequently patent was revoked. What was spine chilling was the very idea that an exclusive right to sell and use turmeric for the purpose of wound healing as claimed in the patent was granted to the University. Had the patent not been challenged, the University would have been able to license the patent to a company, which in turn would have charged royalty to the inhabitants of South Asia for having used wound healing property of turmeric in their daily lives. This is not the only example; the list is endless. Patents granted on specific properties of neem, bitter gourd, eggplant, grape etc. are a few other examples.

In view of continued assault on the genetic resources and TK of the South and the perpetual deprivation of the communities involved in their conservation, a few developing countries have been making concerted efforts to impose disclosure requirement as a positive obligation on the patent applicants. This will make it mandatory for the patent applicants to disclose the source and/or country of origin of the genetic resources and associated TK used in the process of creating a novel product.

A part of the tactical move of these countries under the DDA, this requirement not only ensures that the patent applicant will comply with the access and benefit sharing legislation of the host country, it would also enable patent offices to be more vigilant while examining patent applications that deal with a genetic resource and associated TK. Moreover, it would serve as a critical tool for bio-diversity rich countries in the South to track down applications based on genetic resources and related TK, and enable adequate challenges to specious patents.

This approach has several advantages. First, countries, which initially tabled this proposal – Brazil and India – have been able to garner support from other developing countries as well as developed countries – such as Norway, Switzerland and to some extent the European Union (which has a slightly different opinion on non-compliance). At the TRIPS Council Meeting on 21 September 2004, Cuba, Ecuador, Pakistan, Peru, Thailand, Venezuela too extended their support to the proposal. Only two major WTO members opposing this proposal are the USA and Japan. Second, while ensuring adequate compensation to the donors of the resources or knowledge, it would ensure continued flow of investment in research and development (R&D) on genetic resources and TK of the South, which is required for their value creation. Third, it would continue to provide incentives to the local communities to conserve and make sustainable use of genetic resources and associated TK by putting in place a required incentive structure.

Since critical support from most WTO members is required to counter the resistance of the powerful countries like the US and Japan, it is necessary for all the developing countries to join hands in support of the proposal. If they could achieve a major breakthrough in terms of alliance building by the time of next TRIPS Council Meeting scheduled for 1-2 December 2004, they will be able to create a major dent. Then they should focus on run up to the Hong Kong Ministerial Conference, and create pressure on the WTO members to make a concrete decision on disclosure requirement.

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