Economy: Patents [Return of the Colonists]

India drags its feet on new laws and faces financial losses even as western scientists find potentially lucrative uses for a host of traditional Indian plants.

Barika safeda kasmira kabala,
khurasa jehare hura de pari de ni
(Fine white rice from Kashmir and Kabala, the staple of the houri and fairy)

This isn't exactly Rajendra Kumar's normal bed-time reading. But for the past year, the Delhi attorney has been digesting scores of Indian classics, like this couplet from the 16th century Punjabi fable of the lovers Heer and Ranjha. Kumar, of the law firm Kumaran and Sagar, is no closet romantic. The only reason Heer-Ranjha caught his fancy was for the descriptions it offered of the king of Indian rice: basmati.

Kumaran and Sagar's attorneys were hired by the Government to scour the ancient texts in a desperate battle to stop a feisty US company called Ricetec, which patented "Basmati 867", a finer, sturdier brand of American basmati. The Government hopes to prove to the US Patent Office that basmati is so much a part of ancient Indian tradition that no one else should be given the right to use, and profit, from the word -- and thus the rice. In a country that does not document anything that's considered tradition or heritage, not even after India agreed to be a part of the World Trade Organisation (WTO) in 1994, it's not surprising that ancient scriptures are the best hopes to fight patent battles. A long-time dissenter on intellectual property rights, India is in quicksand when it argues about patents, the exclusive rights of holders to market and license their products. For years, the government granted patents on processes to make food, medicine and drugs, not on the products themselves. Though it has time until 2005 to put in place a system in tune with the industrialised world, successive governments have done nothing. "Few realise how serious the situation really is," warns G.V. Ramakrishna, member of a government expert group on patents. "Whatever gains India can make by being a signatory to the WTO is being squandered away by inaction."

India's deadline for setting up a system to compile and sequence product-patent applications until the transition to full product patents in 2005 and give exclusive marketing rights to product patent holders ended in February. A deadline extension runs out by the end of March. Unless the new government does something immediately, India could be liable for WTO sanctions, which have never before been issued against any country. Sanctions imply restrictions on Indian exports, increasing trade tariffs and making India liable for trade curbs on issues as diverse as human rights and health.

India's mastery of traditional sciences and its potential exports are now under grave danger of leaching away in the form of foreign patents and dollars. India exported basmati valued at Rs 1,198 crore last year, nearly three-fourths of global rice exports. India's rice farmers and exporters could be seriously threatened if Ricetec's basmati elbows in. But the basmati patent -- and a failed attempt at a US turmeric patent -- is just the tip of the iceberg.

What India Must Do

Possible sanctions, a fall in exports and a siphoning off of India's traditional knowledge. All these are likely outcomes unless remedial measures are taken immediately.

CATALOGUE BIOWEALTH: Plant and seed varieties must be listed, along with their traditional uses and their genetic composition, if possible, as instant reference guides to fight foreign patents.

CHANGE PATENT LAWS: Unless India recognises patents on drugs and agro-chemicals, not just on methods of making them, sanctions by the WTO loom large. The new law has been pending for the past four years.

INTRODUCE NEW LAWS: Many Indian traditions and products are not legally protected in India itself. Also needed: laws on biodiversity, rights for traditional seeds and plants used by farmers.

IMPROVE PATENT OFFICE: It takes upto seven years to get a patent passed, against two in the US. Patent offices must be revamped and reorganised to guide applicants and give quick feedbacks.

A host of other Indian condiments, plants and herbs is being taken apart molecule by molecule in western laboratories. "A great chunk of our genetic resources is already lost," says Devinder Sharma, a food policy analyst. Many remedies and recipes that our grandmothers knew are becoming patented products, with the rights for commercial production channelled to foreign inventors and companies, a loss in the long term of lucrative potential markets. A recent study by the Research Foundation for Science, Technology and Ecology, an NGO, found foreign patents granted for products derived from more than 100 Indian trees, herbs and spices.

Environmentalists call this biocolonialism or biopiracy, a silent takeover of biological resources either by exploiting -- whether deliberately or unknowingly -- Indian weaknesses, or by directly smuggling out plants or seeds and then patenting them. There is some truth to the argument.

Last year, Australian scientists tried to patent sona and heera, two varieties of Indian chickpea (channa), which had been given to them for further research by the International Crops Research Institute for Semi-Arid Tropics (ICRISAT), Hyderabad. When voluntary organisations found out, an international protest was organised and the patent was revoked in January this year. The Food and Agriculture Organisation is now suggesting a moratorium on any rights being granted on plants held in free trust by international gene banks, as sona and heera were. Sometimes, Indian research just isn't up to the mark. For instance, western companies already hold 40 patents on products from the neem tree; Indian scientists hold just three. So legally, India's biological wealth is open for exploitation.

"There can be biopiracy of know- ledge of how to use biodiversity, or there can be biopiracy of this biodiversity itself," says P. Pushpangadan, director of the Tropical Botanic Garden and Research Institute (TBGRI), Thiruvananthapuram. He explains how government organisations like the Botanical Survey of India and the Zoological Survey of India have concentrated on inventories of species, not their genetic make-up. So when a foreign institute or scientist patents a gene, Indians do not even recognise the gene as theirs. In this helical wilderness lies an immense trove of patents and profits.

More than 7,000 kinds of plants are used for medicinal properties. And there are 326 species of wild crop varieties. More than a third of all of India's animal and plant species are endemic, meaning they are found nowhere else in the world. The threat of future biological takeovers is real unless the Government, scientists and businessmen make a move now.

The first issue is scientific. Very little of India's vast wealth of traditional knowledge is on paper or electronic databases that can be easily accessed and presented to foreign patent authorities to dispute claims made by scientists abroad. "If the US Patent Office had access to information on Indian biodiversity, it could really help with decisions," says R. Mashelkar, head of the Council for Scientific and Industrial Research (CSIR), the country's largest network of research laboratories. The CSIR now constantly urges its scientists to patent every new advance.

India's biological resources must be clearly identified, at a genetic level wherever possible, and a listing made of various plants and their traditional uses. Without such a central clearing house of this information, scientists and attorneys will continue to scurry around old libraries, searching creaking shelves for ancient texts.

"It takes ages to get all the evidence in place," says K.C. Gabriel, a Kumaran and Sagar attorney. He spent a large part of last year painstakingly studying translations of texts in Sanskrit, Urdu, Persian and a host of other languages to collect information on the use of turmeric. Gabriel and his colleagues finally gathered enough historical evidence to get the US Patent Office to cancel a patent granted to two US scientists, who claimed they had "discovered" turmeric's antiseptic properties. "Traditionally, everything to do with inventions and discoveries remained in the family domain, with one generation passing it on to the other," explains Gabriel. "Though times have changed, the system hasn't."

The second issue is to change India's patent laws as soon as possible. Until now, the disregard has been scandalous. A few hours before midnight on December 31, 1994, the deadline for the WTO coming into force, the President of India did promulgate an ordinance amending the Patents Act, 1970, to delete the provision that prohibited product patents on pharmaceuticals and agro-chemicals.

But ordinances are issued only when Parliament isn't in session and exist only for six weeks. The minority Congress government could only get it through the Lok Sabha, not the Rajya Sabha, and the old Act was revived when the ordinance lapsed on March 25, 1995. The stupor since -- much of it because of emotional protests on neo-colonialism from the left and right of the political spectrum -- must be shrugged off. "The world is not waiting for you," remarks patent lawyer and expert Praveen Anand. "We are ethically and morally bound. And if we don't send out the right signals, we will lose out on the gains." By being a signatory to the WTO, Indian exports between 1992-93 and now grew by Rs 56,000 crore, which is 1 per cent of the growth in world trade. Without being WTO signatories, our share would be half that amount, says an estimate made by the Ministry of Commerce.

The third issue is to pass laws that will protect India's products and biodiversity. Much of the basmati controversy centres on the right to use the term "basmati", a name associated with north India and Pakistan, much like champagne is restricted to producers in France and Scotch to whiskey makers in Scotland. A Geographical Indication Bill will make India's case for protecting basmati immensely stronger. A plant varieties law will protect farmers from having to buy seeds that they themselves may have developed, but have been modified by multinational corporations. And a national biodiversity legislation will categorise and recognise India's biological resources -- a draft law has been ready since September 1997 -- and spell out the rights over them. It's particularly necessary in a country where traditional remedies can easily be developed into drugs by companies. A model already exists in Kerala, where government scientists developed a drug from a plant consumed by the Kani tribe. Scientists at the TBGRI noticed that the tribals never got tired after eating the leaves of a plant called Trichopus zeylanicus. They took it to the laboratory, isolated the compound and in 1991 had a formulation ready for the market. The drug, Jeevani, was marketed and now there's Rs 6.8 lakh stashed away in a bank account waiting to reach the tribals. Kerala proposed a Tribal Intellectual Property Bill in 1996 and Karnataka is in the process of chalking out a biodiversity conservation and access and benefit-sharing strategy.

The fourth issue is to get India's slow-moving patent office in order. The Controller General of Patents has a pile of 24,000 patent applications. Patents take up to seven years to be cleared, against two years in the US. The Government must revamp the patent office, staff it with experts well-equipped to advise and calm the fears of Indian scientists and entrepreneurs who frequently stress out over foreign patents. "When projected here in India, individual patent grants seem much more serious and irrevocable than they actually are in the US," says Peter Raven, head of the Missouri Botanical Garden in St Louis, US.

The solutions to the patent or biopiracy crisis, depending on how you look at it, are evident. Just implement them. Unless that happens, Rajendra Kumar and his colleagues will continue rummaging through unknown, dusty libraries -- and taking Heer-Ranjha home for bed-time reading.
-- with amarnath menon

FLIGHT OF THE ANCIENTS

TURMERIC (HALDI): Used in its raw form as a spice, haldi has been used for centuries as an antiseptic on wounds. Boiled with milk to relieve throat irritation.
FOREIGN USE: In 1993, two American scientists got a patent for haldi's wound-healing properties. Revoked after the government, using ancient texts, proved this was no discovery.

POMEGRANATE (ANAR): The juicy, red fruit has been long regarded as a symbol of fertility. A paste of the leaves can relieve pain and irritation from conjunctivitis. The skin can remove intestinal worms. It's also a coolant.
FOREIGN USE: An anti-viral agent has been patented in the US. The invention stems from the plant's ability to fight infections.

BASMATI: It evolved from years of informal breeding by Indian farmers. In traditional households there is almost a religious connotation to the reverence in which it is held.
FOREIGN USE: A US patent has been granted for a new strain of basmati plants with high yield and grain.

PEPPER (KALI MIRCH): Used in drinking water to get rid of coughs. And, of course, as a spice.
FOREIGN USE: A compound called piperine found in the seeds has been patented for nutritional use.

MUSTARD (SARSON): The brilliant yellow fields of mustard provide oil seeds and food seasonings. Used in the ayurvedic system of medicine to treat haemorrhagic diseases, muscular pains and influenza.
FOREIGN USE: A number of patents held by western labs. Improved mustard plants are used to make fire retardants and produce a variety of chemicals.

SOAP NUT (RITHA): Provides nuts used as soap and for home remedies. Used as a natural shampoo, a poultice of soap nuts can relieve pain and swellings. The plant can induce vomiting, combats poisoning and chronic chest congestion.
FOREIGN USE: Patented by western labs for its ability to retard the spread of fire.

BITTER GOURD (KARELA): Its bitter taste makes for a popular vegetable.The leaves are effectively used against diabetes, skin disorders and as a laxative. A decoction of the roots can cause abortion.
FOREIGN USE: A protein isolated from this plant has been found useful in treating tumours and hiv infection. Patented by scientists in the US.

AMLA: Popular as a pickle, amla fruits are picked in the summer throughout India.Used widely as a source of Vitamin C, amla is a popular constituent of many herbal formulations for general health.
FOREIGN USE: Patent granted for anti-viral property. Scientists have worked out pharmaceutical compositions to treat hepatitis and other diseases.

NEEM: Appropriately called Azad-darakht-e-Hind (the free tree of India), its scientific name today. From datun, the disposable toothpaste-toothbrush combo, to smoked-neem leaves to drive away insects, to a watery leaf extract used as an antiseptic.
FOREIGN USE: More than 40 patents, mainly for neem pesticides, are held by American and European labs.