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4-Patents: Vandana Shiva on the neem tree and freedom from Western biopiracy



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TITLE:  Free Tree
SOURCE: The Hindustan Times, India
        http://www1.hindustantimes.com/nonfram/090600/detOPI01.htm
DATE:   June 9, 2000

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Free tree

ON MAY 10, the anniversary of the day when the first Indian movement 
for Independence was launched, a major milestone was crossed in the 
contemporary movement of freedom from biocolonialism and biopiracy. 
The European Patent Office (EPO) struck down Patent No. 0436257 B1, 
jointly held by the United States Government and the multinational 
W.R. Grace. The EPO stated categorically that this patent was based 
on the piracy of existing knowledge systems and lacked novelty and 
inventiveness.

The patent had been filed by USDA and W.R. Grace on December 12, 
1990. On 14 September, 1994, the European Patent Office granted a 
patent for a particular method for controlling fungi on plants which 
comprised contacting the fungi with a neem oil formulation.

Patents are exclusive rights given for inventions to make, sell and 
distribute a patented product or products made through patented 
processes. An invention needs to be novel and non-obvious, that is, 
someone familiar in the art should not be able to achieve the same 
step. We challenged Patent 0436257 B1 to establish that this patent, 
like others based on biopiracy, was nothing novel and did not involve 
an inventive step.

A patent challenge was filed on June 5, 1995, by me (as Director, 
Research Foundation for Science, Technology and Ecology), Linda 
Bullard, president of International Federation of Organic Agriculture 
Movements and Magda Alvoet, currently Health and Environment Minister 
of Belgium. We filed a legal opposition because the use of neem 
extracts for fungicide and pesticide has been practised for centuries 
and investigated scientifically and commercially for decades, prior 
to the claim to invention in the USDA-Grace patent. In this hard 
struggle for over five years, we brought every possible evidence to 
bear on the case through affidavits from farmers and scientists.

The detailed cross examination proved beyond doubt to the Opposition 
Division Bench chaired by D. Tzschoppe with A. Schmid and Dr 
Rakshanda Faizi that the patent was based on pirated knowledge. On 
the afternoon of May 10, 2000, Mr Tzschoppe ruled that the "patent is 
revoked".

The attorneys of USDA and Grace tried every argument under the sun to 
dismiss the case and block the proceedings, including procedural 
arguments. They claimed that as an Indian I could not bring a case to 
the EPO and the Research Foundation had not paid the $ 2,000 fees. Dr 
Dolder, an excellent lawyer who teaches Intellectual Property Rights 
law at the University of Basel in Switzerland, pointed out to the 
bench that USDA and Grace were not European entities either, and had 
also not paid the patent fees for their joint claim. In any case, 
Indians had a right to challenge the European patent in European 
courts because this was a clear case of biopiracy.

The work for the "neem challenge" started in 1994. We launched the 
neem campaign in India and formed the "Neem Team" - an international 
network of patent warriors to support our national campaign. The 
campaign was initiated because of the intrinsic importance of neem in 
our culture, agriculture and health systems. The fungicide patent was 
picked up because it was owned by the US Government and a big MNC. It 
was therefore a powerful symbol of biopiracy which also expressed the 
transparent flaws of the IPR systems in the developing countries.

Neem is an extremely important social and cultural symbol in Indian 
society because it is used on such a large scale for medicine and 
agriculture in India. If biopiracy can occur with such commonly used 
knowledge, what would be the fate of less prevalent examples of 
traditional innovation? Neem is also important because it is an 
ecologically sound alternative to hazardous pesticides. The campaign, 
"No more Bhopals, plant a neem" started in 1984, soon after the 
Bhopal disaster. Neem has been a central part of ecological and 
sustainable agriculture, including organic farming.

Finally, neem is a symbol of freedom as "Free tree". Its scientific 
name is Azadirachtin Indica which is derived from "Free tree": Azad 
darakht. Liberating the "Free tree" thus became the symbol of the 
movement to free our knowledge systems and biodiversity from 
biopiracy. That is why on May 9, 2000, during the oral proceedings, 
we set a two-metre tall neem tree free by clipping off patent labels 
for the 14 neem patents the EPO had issued. The neem battle has been 
described as one between Davids and Goliaths - the Davids being three 
women and their organisations, while the Goliaths were a global 
superpower and a major MNC. But the main idea was to challenge big 
money and political power, and the might of gigantic corporations and 
powerful governments, with ordinary people's solidarity.

The neem battle is a contest between eco-feminism and capitalist 
patriarchy. Eco-feminism recognises the intrinsic worth and integrity 
of all beings, including all the various species and different kinds 
of people and societies, while capitalist patriarchy recognises only 
the rights of those who own and control capital, which happens to be 
largely men. The rights of capital and the rights of privileged and 
powerful men reinforce each other and create unjust and unethical 
systems like Western style IPR regimes which attempt to transform all 
life and living resources under the monopoly of corporations. Freeing 
the free tree was an experiment. It sought to find new ways to defend 
our freedoms in an era of globalisation and corporate rule.

What holds for the USDA-Grace patent also holds for 14 other neem 
patents in EPO and nearly 100 neem patents in the US. The EPO 
revocation has implications for other patents because the power of a 
patent is the exclusive right to the market. This is established by 
fighting infringement cases against others involved in the making, 
selling or using of patented products.

The neem case also has implications for patent laws and TRIPs. The 
idea was to challenge the IPR system, not fighting costly and 
protracted legal battles on a case by case basis. The proof of 
biopiracy as accepted by the EPO now provides an opportunity for 
revisiting the European Patent Convention, US patent laws, TRIPs and 
the Patent Cooperation Treaty: all of them fail to be based on 
global, cross cultural scrutiny and on investigations about "prior 
art", though TRIPs and PCT are imposing global IPR frameworks on 
countries like India. Global recognition of patents without global 
recognition of prior art is a recipe for biopiracy.

The neem victory is also a signal of caution to Indian Parliament: it 
should not implement TRIPs in a hurry and amend our patent laws. The 
EPO case proves that Western patent systems which are now being 
showcased as models which we must immediately adopt without any 
reservation, are deeply flawed and exploitative in the way they 
address the issue of indigenous knowledge and prior art.

The Government of India should use the neem case to strengthen its 
case in the review of Article 27.3(b) of TRIPs, not rush into 
amending our patent laws or introduce Plant Variety Legislation. It 
should withdraw the Biodiversity Bill, which, in its current form, is 
a biopiracy bill. As ordinary citizens, we have been successful in 
our challenge to the domination and control of Western powers over 
our biodiversity and knowledge. As trustees of our biological and 
intellectual heritage, the Indian Government has a duty to build on 
our small but significant victory.

Diverse Women for Diversity
A-60 Hauz Khas
New Delhi 110 016
India
Tel:91 11 656 1868
Fax:91 11 656 2093
E-mail:divwomen@ndf.vsnl.net.in
www.vshiva.org
 


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