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'India must get the world to condemn what the US is doing with patents'

Part I: 'We have resoundingly lost the basmati case'

In the second part of the interview, Dr Suman Sahai, Convener of the Gene Campaign, tells Ramesh Menon that it is time developing countries got together to pressurize the world community to stop the United States from stealing the traditional knowledge and properties of communities from all over the world and patenting it as their own.

What about other areas other than basmati? The United States Patent and Trademark Office has reportedly thousands of cases where patents are being challenged.

The crime of the Americans is there for all to see. They are like a gang of thieves going everywhere from Latin America to India stealing traditional knowledge.

Then, they will say that they are not breaking the law as American law supports this.

Thousands of cases are there where they have just picked up things from all over the world and patented. The American court and patent offices support this sort of thing.

So, all developing countries are forced into this extreme unequal position of running to the United States to challenge it in an alien expensive legal system. Just because someone is a bandit. Americans are really rampaging thieves.

The natural system of justice would say that all knowledge and properties must be paid for if you want to take advantage of it.

If they are willing to pay heavily to a Korean company for transfer of steel technology, why cannot they pay a community technology transfer fees to make a lifesaving drug from a plant the community discovered? The United States has not ratified the Convention on Biodiversity. It does not want to acknowledge this.

The United States does not want to share anything or acknowledge that communities have been working with turmeric, neem and basmati for ages.

On one hand, the United States puts a lot of pressure on the implementation of the Trade Related Intellectual Property Rights which means the patent regime in the WTO.

On the other hand, there is another treaty called the Convention on Biological Diversity which deals with biological materials and acknowledges the rights of communities. It says that it is indigenous knowledge that gives bio-resources a value.

So, rights of communities have to be respected, protected and acknowledged. If any country has to use the resources of any other country, they have to ask the communities, take prior consent and also arrive at a benefit sharing agreement.

Which means poor countries have to keep fighting.

It costs them nothing to steal. It costs us a lot to fight. On the turmeric patent, India spent millions fighting a case. On the basmati case, millions were spent again. It is just amazing shamelessness on America's part.

Some patents were challenged.

But, can international communities especially from developing countries afford to challenge all such patent thefts by a rogue nation? They are above all international laws and agreements.

Can international pressure help?

This kind of rampant unethical behaviour on the part of Americans must be condemned. International agreements must be forged at least respecting some components of rights of communities, their knowledge and their properties in the form of biological materials like plants and crop varieties.

There is a growing argument against biological patents.

The whole question of patenting biological material is a bad idea. Fundamentally, the whole premise needs to be relooked. Again, it is an American idea. Any scientist can crack a biological patent.

The patent system was developed for a completely different set of industrial products like a motor, for instance. These are finite things. If you leave a motor on a table, it will still be there as it was after ten years. It will not have baby motors around it.

That is the essential difference between biological materials and finite materials. The patent system was developed for finite products. You create a product and it will remain the same.

But in biology, nothing is identical. If you patent a plant variety or seeds, it may have more seeds. It reproduces and it will keep changing.

There will be so much variation. Essentially, the patent system is not designed for biological material and cannot hold.

Only the US is keen on biological patents.

There has been great reluctance to establish monopoly on biological material for simple reasons. The European Patent Convention which is valid today does not permit biological patents. But American law allows patenting of biological materials.

There has been great reluctance to extend the patenting of plants and animals for simple reasons. All societies realize this is a very vital resource for food and livelihood. Extending monopolies of the kind of industrial patents would not be right.

The right of communities to access food and not to allow monopolies in this sector has generally kept people away from extending patent protection to biological materials.

All countries except the Americans have upheld this.

It is the moral issue of extending patents to such a vital resource, which deals with food. In most communities, health care comes from medicinal plants. Indigenous communities are very dependent on plants for their healthcare and food.

So, to extend patents on biological materials to large commercial giants is in itself revolting, immoral and unethical.

The design of patents for biological material will ultimately lead to tremendous legal chaos. The only people who will benefit are lawyers and rich countries.

The patent system is stacked against poor people and poor countries.

What was the philosophy of granting patents?

The philosophy of the patent system was not personal aggrandizement. It was designed to benefit society. The intention was that if an innovation was useful, it should be encouraged. One way to encourage that was to give a limited control on marketing and production.

The patent system was to balance public good and private gain. The private reward of exclusive right to the market and production was to encourage innovation to benefit the public. This was the philosophy of the patent system.

In order to create safeguards, all patent systems had mechanisms like compulsory licensing. If you established a monopoly detrimental to public interest, your license could be taken away.

But today, the patent system means hogging all the benefits. Patent holders in the field of biology are these gigantic multinationals.

A grotesque perverse parody is developing now of large corporations snatching the knowledge and property of poor people to strengthen private gain.

But that is not what it is like today.

Exploitation of the public for private gain has become the philosophy of the patent system today.

In the area of biological materials, it is particularly reprehensible as it relates to food and health security. Denying public interest and hogging everything means denting food security of poor communities. That is how the patent system is working today.

Is there no lobby in the United States to oppose this?

The United States administration is completely dominated by huge corporations. There are Americans who are incensed with what is happening, but the US administration always has been run by the big money of corporations.

Their business interests are only concepts they know. Concerned citizens are there but cannot fight big money.

The Europeans are not like this. They have a lot of sympathy for poor communities; and have a different viewpoint weaved into their policy.

What must India do?

India must get the world community to condemn what the Americans are doing with patents. If Trade Related Intellectual Property Rights is to be a binding treaty, then the Convention on Biological Biodiversity must be an equally binding treaty. The Americans must be forced to accept it.

India and other developed countries should now demand for greater equity in the interest of all mankind. That is the only solution.

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