TRIPS Agreement – A threat to India’s rich Bio-diversity and Food and Health Security

TRIPS Agreement – A threat to India’s rich Bio-diversity and Food and Health Security

“An unprecedented corporate power grab is under way within the Uruguay Round Negotiations of a new version of the GATT, the treaty which governs most of the world’s trade. By clever manipulation of free trade symbols and dependency between nations, multinational corporations hope to harmonise downwards: consumer protection, environmental and worker safety standards and wage levels. Special burdens are in store for Third World Countries whose sovereignty the multi national companies are hoping to further erode.”
- Ralph Nader, USA’s foremost Consumer Rights Activist


The TRIPS (Trade Related Intellectual Property Rights) Agreement happens to be the most sinister of all agreements of G.A.T.T – 94 forced on the developing countries by the western M.N.C.s through their governments. The TRIPS agreement forces all the developing countries to have I.P.R. legislations which are similar to the western IPR legislations. This is intended to help the western M.N.C.s especially in the farming and pharmaceutical business to gain complete control over the rich biological and genetic resources and associated vast indigenous knowledge built over centuries, to boost their private profits. In fact the basic frame work for the TRIPS patent system was conceived and shaped by a group of 13 large American M.N.Cs represented by the Intellectual Property Committee (I.P.C) of USA. The members of the I.P.C were Bristol Myers, Dupont, General Electric Motors, Hewlett Packered, IBM, Johnson and Johnson, Merck, Monsanto, Pfizer, Rockwell and Warner. There is no wonder then that the TRIPS agreement is out and out pro-M.N.Cs and anti-people.

Indian Patent act 1970
The Indian patent act 1970, as it was prior to 1995 was truly a patent act drafted by true nationalists and tailor made for the specific needs of India’s developing economy. Indian Patent Act 1970 had a non-patentability clause. The Act provided that inventions in the fields of Atomic Energy, Agriculture and Horticulture are not patentable. Life forms are also non-patentable. It provided only process patent for Food, Agro chemicals and Medicines. The patent period was only 7 years for process patents. For effectively protecting the misuse of patent monopoly by the patentees, the Act provided for Compulsory Licensing and Licensing of Rights
For the purpose of encouraging domestic production of drugs and medicines and national self reliance, the Act considered imports as not working of the patent.
The Indian Patent Act 1970 protected the interests of both the inventor and consumer in a balanced manner. It also gave priority to national interest over the interests of the Patentee. It was hailed by many countries and the UNCTAD as one of the most progressive statutes and an ideal act for developing countries.
The TRIPS agreement however has forced India, being a signatory to GATT 94 to adopt a TRIPS compliant patent Act. Some of the features of it are;
i. Patent shall be available for all inventions – provided that they are new, involve one or more inventive steps and are capable of industrial application.
ii. Protection will also be extended to micro organisms, Non biological and microbiological processes and plant varieties either by patents or by effective sui generis system.
iii. Product patent shall be granted for Drugs, Medicines and Agro chemicals.
iv. Patent period to be 20 years.
v. Imports also should be treated as working of the patent.

Thus the TRIPS patent system enforced on India is diametrically opposite to the Indian Patent Act 1970 – our own Act. While the Indian Patent Act 1970 was India centric, the TRIPS Patent system is global M.N.C centric. Further while Indian Patent Act 1970 balances the rights and responsibilities of the patent holders, the TRIPS patent system gives only rights and no responsibilities to the patent holders – the M.N.Cs. Hence helping the Indian population by providing them sustainable food and health security at affordable cost is only subservient to the commercial interests of the Global M.N.Cs.
India as a faithful member of the WTO has already complied with all the TRIPS requirements by enacting a series of substantive amendments to the Indian Patent Act 1970 in 1999, 2002 and 2005. The Indian Patent (amendment) Act 2005 is only a ghost of the earlier Indian Patent Act 1970. There is nothing in it to be called Indian.


Fall outs

Onslaught on Indian Bio-Diversity resources and Indian traditional knowledge base.
CBD Vs TRIPS

The historic UNCED Earth Summit at Rio de Janeiro held in June 1992, resulted in a landmark agreement called Convention on Biological Diversity – CBD.
The Preamble of the CBD recognizes and reaffirms,
 The intrinsic value of biological diversity
 The sovereign rights of states over their biological resources
 The fundamental requirement of insitu conservation of eco system and natural habitats.
 The supporting role of exsitu measures.
 The vital role of local communities and women in the conservation and sustainable use of biological diversity.
 The desirability of sharing equitably the benefits arising from the use of traditional knowledge, skills, innovations and practices.
 The importance and the need to promote regional and global cooperation for conservation and
 The requirement of substantial investments to conserve biological diversity.
The CBD is an excellent effort at conservation and sustainable use of biological diversity on the basis of benefit sharing.
171 countries signed the CBD with the lone exception of the USA.
The USA on the other hand, spearheaded the TRIPS patent regime and prevailed upon all the member countries to adopt IPR legislations facilitating patenting of micro organisms and other life forms and patenting of seeds.
The CBD and TRIPS patent regime are again diametrically opposite. While CBD recognizes the intrinsic value of bio diversity for the welfare of humanity, TRIPS treats bio diversity found mostly in the developing countries of the tropics as a commercial gold mine to be exploited by the global M.N.Cs for their private commercial gains.
The CBD recognizes the vital role of local communities and especially women in the conservation and sustainable use of bio diversity and emphasizes fair and equitable sharing of benefits. The TRIPS on the contrary facilitates and encourages commercial exploitation of bio diversity of developing countries such as India and traditional knowledge of local communities and denying them any benefit through bio piracy by M.N.Cs.
CBD recognizes bio diversity resources and traditional knowledge as common property resources and heritage, The TRIPS treats them as private property of M.N.C.s, exploitable through patent regime. It is an irony that today the exploitative TRIPS has gained precedence over the egalitarian CBD.
Bio diversity – wild as well as cultivated, and associated traditional knowledge happen to be a common property resource in the traditional societies on which the poor and the marginalized majority depend for the food and medicines. It is their source of culture too. Throwing open the bio diversity to the exploitative TRIPS regime under the pressure of US and its M.N.Cs has put the food and health security of the majority of people in India and other developing countries under great stress and threat.
The US which forces all other countries especially the developing countries like India to amend their IPR acts to make them TRIPS compliant, refuses to amend its own Acts. The US Act called The Uruguay Round Agreement Act provides under section 102 (a) that if there are inconsistencies between the provisions of WTO and the US laws, the latter will prevail. This brings out clearly the duplicity of the American attitude.

Bio Piracy

Global M.N.Cs have engaged in pirating vital genetic resources found in the developing countries and associated traditional knowledge to get patent for them in their own countries. In this process, the developing countries are continuously denied of the benefits which legitimately belong to them. The patenting of Indian basmati rice variety by the Rice Tech company of the US, granting of patent by the European Patent Office to Monsanto over Nap Hal - an Indian traditional wheat variety, patenting of entire gene sequences of rice by the Swiss M.N.C Syngenta, patenting of medicinal properties of turmeric, neem, jamoon, bittegourd and such other Indian varieties and the associated knowledge, by the US and the European M.N.Cs are only a few well known cases of bio piracy of Indian biological diversity and traditional knowledge. The list goes on.
Patenting of seeds in the name of Breeders Rights has been facilitated in India by the enactment of The Plant Variety Protection and Farmer’s Rights Act. The Seeds Bill 2004 which punishes the breeding, processing, storing, selling and exchanging of non certified seeds and plant materials, is already before the parliament. Both of them are intended at destroying the traditional seed rights of the Indian farmers and empowering the global seed companies such as Monsanto, Syngenta and so on.
A horde of Genetically Engineered bio products such as GE Paddy, Wheat, corn, Oil seeds and vegetables are descending on the farming sector of India. All of them have strong IPR Protection and are corporate controlled. They will soon destroy the rich agro bio diversity of India, erode the seed sovereignty of the farmers, increase the strangle hold of global M.N.Cs on Indian agriculture, make seeds costlier and supply GE Foods which are dangerous on human and animal health and destroy the soil and environment through genetic pollution. Add to this the terminator technology for producing sterile seeds and the Genetic Use Restriction Technology (GURT)
The third amendment to the Indian Patent Act brought about in the year 2005, providing product patent to drugs and pharmaceuticals is another case of making medicines unaffordable and inaccessible to the vast majority in the country.
As Vandana Shiva rightly argues “The TRIPS agreement militates against people’s human right to food and health by conferring unrestricted monopoly rights to corporations in the vital sectors of health and agriculture.”
I would request all the participants in the seminar to focus attention on evolving ways and means to safeguard the food security, health security of the Indians and the rich Bio Diversity of the country from the rapacious TRIPS Patent regime.

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Prof. B. M. Kumara Swamy
Convener-Swadeshi Jagaran Manch
Karnataka


References:
1. PATENTS
myths & reality. By Vandana Shiva
2. TRIPS Agreement on Patent Laws: Impact on Pharmaceuticals and Health for all. By B.K. Keayla

Articles:
 Threat to Bio diversity. By Suman Sahai.
Swadeshi Patrika May 2006
 From Seed to Retail, creating Monopolies in Agriculture. By Vandana Shiva.
Swadeshi Patrika Feb 2006
 Gene Revolution is Dangerous. By Suman Sahai.
Swadeshi Pathrika Feb.2006
 Protect Bio resources. By Ashok. B. Sharma.
Swadeshi Pathrika March 2004
 The Corporate Rice. By Devinder Sharma.
Swadeshi Pathrika March 2004