# Owning the Intangible/IP vs. IP

IP vs. IP: Intellectual property versus Indigenous people by Sadhana Athreya
The controversies surrounding intellectual property rights (IPRs’), more specifically patents, in the context of traditional knowledge of medicine and plant breeding involve the protection of indigenous peoples’ rights. The main issues that are at the heart of this controversy are whether or not corporations are entitled to a patent on products using or derived from traditional knowledge and whether their actions constitute biopiracy. Cases of patents using traditional knowledge illustrate that indigenous people have had to fight to prevent exclusive rights to traditional knowledge. However, the fight against companies using traditional knowledge has also resulted in indirect benefits to indigenous people since it has resulted in the organization of traditional knowledge through digital databases.

## Defining Intellectual property and Indigenous people

Intellectual property rights (IPR's) are property rights resulting from creations of the mind such as inventions - scientific discoveries, images, symbols and literary or artistic works. Intellectual property rights allow the owner, or creator to benefit from their innovation and creativity. Intellectual property includes copyrights, patents and trademarks. Indigenous literally means “from” or “originating from somewhere” (Wikipedia, 2010). Therefore, in the literal sense of the term, people from a certain region can be called indigenous people.

## Bioprospecting and Biopiracy: A Matter of Perspective

Indigenous people and corporations clash around issues of bioprospecting or biopiracy. The search for commercial-scientific utility in biological resources is known as bioprospecting by those in favor of, and biopiracy by those opposed to the practice. Bio-prospecting involves not only the search for medicinal plants and herbs but also the traditional knowledge of the indigenous people who have been using the plants as herbal remedies.
Companies send their botanists and agronomists around the globe. They most often visit developing or underdeveloped countries where not everything is industrialized. Samples of biological resources are usually brought back to the company's laboratories which may form the basis for new plant varieties, drugs or extracts. Bioprospecting is important for drug discovery and research. Through bioprospecting many great pharmaceutical developments like the invention of the polio vaccine and the invention of sophisticated diagnostic tools for screening have been possible. On the surface bioprospecting does not appear to be a problem. However, native communities may feel differently. The resources that belonged to no one or everyone are now under the rule of the patent system. Some argue that living systems should be free, and that through intellectual property rights, “an attempt is made to take away what belongs to nature, farmers, to women, and to term this innovation improvement and progress”. Others have pointed out that the patent system has “removed incentives for local communities” to preserve and protect their biological resources. Additionally, bioprospecting by pharmaceutical companies is criticized by those opposed to the practice for cheating local people by denying them access to knowledge and financial benefits. In many cases commercial bioprospecting agreements cannot be monitored well by countries. There are no regulations in place to ensure that the source countries of these plants will be compensated. In such cases, where the rights of indigenous peoples are challenged or diminished, bioprospecting is often referred to as biopiracy. Bioprospecting or biopiracy, regardless of the term, involves researchers seeking to understand and use traditional knowledge.

## Traditional knowledge

In India, carom seeds or “ajwain” are used to treat stomach pains. Just one spoon of it and within 10 minutes, the pain vanishes. Similarly, neem tree leaves are boiled with ground black pepper and “tulsi”or Indian basil to make a concoction to soothe the common cold, ”Kala jeera” or black cumin seeds are used to increase one's general immunity. These cures for illnesses are known in almost every household in India. There are a multitude of such methods. This is called Traditional knowledge (TK), the knowledge that is passed down from one generation to the next. People know these cures only because their parents or grandparents told them about it who in turn must have learnt from their ancestors. Traditional knowledge is often oral and is not written anywhere.
    Traditional knowledge refers to the knowledge, innovations and practices of indigenous and local communities around the world. Developed from experience gained over the centuries and adapted to the local culture and environment, traditional knowledge is transmitted orally from generation to generation. It tends to be collectively owned and takes the form of stories, songs, folklore, proverbs, cultural values, beliefs, rituals, community laws, local language, and agricultural practices, including the development of plant species and animal breeds. Traditional knowledge is mainly of a practical nature, particularly in such fields as agriculture, fisheries, health, horticulture, and forestry.
Traditional knowledge has been applied on biological resources like plants and trees for generations. When these people were faced by illness for example, they developed ways of using the resources at hand to cure themselves of it. Researchers look for biological resources rich in healing qualities so that they can make new drugs. Making life saving drugs is not the issue here. The real issue is that in doing so, the scientists also make use of the traditional knowledge that goes along with the indigenous resource. Companies use this traditional knowledge in developing their drug, which they patent as their own invention. Traditional knowledge helps to increase the efficiency of screening plants for medical properties while only a tiny fraction of the profits are returned to the indigenous peoples and local communities. Commodities or plants that were once easily accessible by the indigenous people become governed by patents. In the next section, the problems and issues that arise from companies patenting products with the use of traditional knowledge are described and analyzed.

## Cases

Some of the famous patents that big corporations have been trying to take out on biological resources are: the neem tree, the chamomile plant, the rosy periwinkle, the Enola bean, basmati rice, hoodia plant, Indian wheat, soybean and maize from Mexico. Examples from cases of patents versus the rights of indigenous people can clarify the issue.

### Neem Tree Case

Neem or azadirachta indica is an evergreen tree that grows in tropical and semi tropical regions. It is most commonly found in the South Asian subcontinent. Products made from neem have been used in India for over two millennia. It is referred to as the 'village pharmacy' in India because of its various healing properties. It has been found to be an anthelmintic, antifungal, anti diabetic, anti bacterial, antiviral, contraceptive and sedative. Besides this, it is also used as a pesticide. Some people use neem twigs to brush their teeth as well.
One of the most famous cases surrounding the patent of the neem tree is the WR Grace case. In 1995, WR Grace patented a neem based pesticide, Neemix (#5352697) for application on crops. The patent was granted by the European Patent Office (EPO). By the end of 1995, the sales from Neemix alone brought in 60 million dollars out of a total profit of 5 billion dollars. The Indian government appealed against the patent and won the case in 2000. The EPO agreed that the process by which Neemix was obtained was in use in India for many years. The when and where of “the alleged prior use were clearly established as summer 1985 and 1986 in the Pune and Sangli districts of Maharashtra, Western India”. Usually, if there is 'prior existing knowledge' about a product, the patent application is rejected. The Indian government argued that the neem tree was part of Indian traditional knowledge. WR Grace appealed the argument but lost the appeal in 2005. The result of this case is promising for indigenous peoples’ rights.

### Turmeric Case

Another patent on a product that people in India use as medicine is Turmeric. Turmeric is a herbaceous plant belonging to the ginger family found in tropical South Asia. Turmeric has been traditionally used in India for its special healing properties. It is used for sore throats and colds, for scraped knees and to treat acne. It is also used in everyday cooking in India. It is yellow in color like saffron, and is known as Indian saffron in Europe.
In 1995, two US based Indians were granted the patent on 'Use of turmeric in wound healing' by the United States Patent and Trademark Office (USPTO). Despite the common use of turmeric in India as a blood purifier and anti-parasitic as well as for topical wounds, the patent seekers, Suman Das and Hari Har Cohly claimed that “the present invention provides a method of promoting healing of a wound in a patient, which consists essentially of administering a wound-healing agent consisting of an effective amount of turmeric powder to said patient”. However, in United States Patent law, 'prior existing knowledge' is recognized only when it is published in a journal and not when it is passed down from generation to generation in folk traditions. A person shall be entitled to a patent unless - “The invention was known or used by others in this country, or patented or described in a printed publication in this or a foreign country, before the invention thereof by the applicant for a patent”.
The Indian Government filed for reexamination of the patent. Even though everyone in India knew the healing properties of turmeric for ages, finding a published document was not easy for the government. However they did finally find 32 references, some of which were over a 100 years old in the languages – Hindi, Persian and Sanskrit. The USPTO then revoked the patent agreeing that prior knowledge of the product existed. The Indian government, in an effort to combat patent laws that require proof of ‘prior existing knowledge’ and to prevent unethical patents and biopiracy, started a non-patent database called the Traditional Knowledge Digital Library in 2001. As of 2010, the library has translated over 140 ancient texts as well as home remedies and cultural practices into several languages. In both the above cases, that of the neem tree and turmeric, we see how Intellectual property rights can threaten the rights of Indigenous people. A third case involves plant breeding.

### Indian Wheat

A well known example of seed patenting is the case of Monsanto and Indian Wheat. Monsanto, the world's largest genetically modified seed company was awarded a patent (EP 445929) on Nap Hal, a strain of Indian wheat in 2003 by the European Patent Office. The patent covers wheat exhibiting certain kinds of qualities making it suitable for baking. With this patent, Monsanto has acquired the monopoly on the farming, breeding and processing of a number of wheat varieties. Monsanto’s acquiring the patent of Nap Hal, the wheat used for making chapattis – a flat bread staple of North India, led to a fear that indigenous people would have to pay royalties for making or selling chapattis. “Nap Hal's qualities are the result of generations of farmers in India who spent years crossbreeding crops and collective, not corporate, efforts should be recognized”. These farmers initially grew the wheat crops for their own need of making the chapattis. "It is theft of the results of the work in cultivation made by Indian farmers," said Dr Christoph Then, Greenpeace's patent expert.
The controversy here is that Monsanto says that they got Nap Hal from a gene bank. In Monsanto's patent claim they say that Nap Hal is not an Indian wheat variety. They say that Nap Hal means 'no seeds' and it cannot be an indigenous seed variety because farmers bred seed to produce seed. The point here is they did not literally breed the Nap Hal seeds. With this patent, Monsanto can not only control the farming and processing of these crops but can also control seed swapping, which is a common practice in India among farmers. In addition to this, Monsanto can prevent other farmers from growing the crop.
    Creators can be given the right to prevent others from using their inventions, designs or other creations — and to use that right to negotiate payment in return for others using them. These are “intellectual property rights”.
The traits of low elasticity, low gluten which are being patented are not an invention, but derived from an Indian variety. “The soft wheat flour containing fewer than 3 different HMW glutenin subunits” was one of the 15 claims. Shiva says that the crossing with a soft milling variety is an obvious step to any breeder. The patent is based on piracy, not on non-obvious novelty, and hence needs to be challenged to stop legal precedence being created on false claims to invention. Shiva believes that this patent should be challenged based on this reason and many more. In October 2004, Greenpeace successfully challenged the patent claim on the basis of it being bio-piracy and the European Patent Office revoked the patent on Nap Hal.

### Implications

The examples of Neem, Turmeric and Wheat show that when big corporations try to patent a product that involves indigenous knowledge or traditional knowledge, the rights of indigenous people are threatened. In all the cases, the indigenous people had to fight back in order to revoke the patents. By trying to patent products available freely, corporations have forced indigenous people to fight back with the same claims to intellectual property. The difference is that the indigenous claim is that of collective intellectual property rather than individual intellectual property. Patents for herbal remedies and plants that are freely available will limit their use unfairly and also prevent future innovation in the field of medicine and health both in the scientific field as well as by ordinary people who can add to traditional knowledge over time. Fighting to prevent misappropriation of traditional knowledge has resulted in the creation of databases of traditional knowledge, an unintended benefit for indigenous people. These databases can prevent patents that unfairly restrict or appropriate knowledge. In addition, governments can work toward creating collaborative agreements that can benefit both parties concerned and facilitate the growth of science.

## The Roles of Governments

As we have seen in the cases of the neem tree and turmeric, the government of a country(India), has the power to stop western companies from patenting biological resources. However, besides fighting back to revoke patents already granted, other solutions can be offered that will protect the rights of indigenous people while advancing research in medicine. IP needs to be adapted to take into account the rights of Indigenous people.
Benefit sharing. Currently, there is no law in place for patent holders to share any benefits of the product with the persons who initially helped locate, preserve or protect that biological resource. There should be a transparent system through which the communities that help discover a resource are fairly compensated and taken care of by the law.
Collaboration. The natives or locals of a certain area from where the resources are being patented can be given training and then offered a job so that they can also get the opportunity to progress. For this to happen, there has to be effective communication between the governments of the countries involved. Policies have to be put in place that are applicable all over the world. One example is Columbia where the indigenous groups have agreed to collaborate with western corporations for a joint development of commercial products from two plants with medicinal properties. In this case, the medicines will carry the label of the local indigenous group that contributed traditional knowledge.
Sanctions and Protection. Governments need to be more active and should intervene before a patent application is even made or at least before it is wrongly granted.
Database of Indigenous Knowledge. Creating a database of indigenous knowledge much like the Indian government has done will prevent corporations from threatening the rights of indigenous people.

## Conclusion

Bioprospecting or biopiracy, depending on which side is looking at it, has its pros and cons. Although bioprospecting has helped the pharmaceutical industry develop over the last 20 years it has also muted the development of a lot of indigenous people. Scientists should be allowed to look for new resources to help discover new drugs or new varieties of crops. However, they should not be allowed to patent something that is used freely by people. Documenting prior and existing cultural use of plants is a first step to preventing unfair patents.
When I first read about instances of biopiracy, I was stunned and offended. However, as I sat down to do the research, I found that while biopiracy does threaten the rights of indigenous people, it has also helped them indirectly. By patenting what belongs to nature, companies are forcing the indigenous people to fight for their collective intellectual property. While this may not be the best way to go about it, we have seen that in the case of the Indian Government, after they had to fight to overturn many patents taken out on biological products, they did turn to make a traditional knowledge digital library, a resource that will benefit everyone.