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4-Patents: Background paper on the neem patent challenge



----------------------------- GENET-news -----------------------------

TITLE:  Background paper on the neem patent challenge
SOURCE: IFOAM, Germany
DATE:   April 26, 2000

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BACKGROUND PAPER ON THE NEEM PATENT CHALLENGE

On May 9th and 10th the European Patent Office in Munich will conduct 
an "Oral Proceeding” to hear the arguments of both sides in the case 
of a patent granted to the United States Department of Agriculture 
and the multinational corporation W.R. Grace for a method of 
controlling fungi on plants by the aid of an extract of seeds from 
the Neem tree. The hearing provides an important opportunity to 
examine the problem of BIOPIRACY, the appropriation of biological 
resources and knowledge from the South through the patent system. 


FACTS OF THE CASE

On December 12, 1990 the multinational agribusiness corporation W.R. 
Grace of New York and the United States Department of Agriculture, 
Washington DC, filed a European Patent application with the European 
Patent Office (EPO) on the basis of a U.S. priority application of 
December 26, 1989, covering a method for controlling fungi on plants 
by the aid of a hydrophobic extracted neem oil. 

After a very difficult and highly controversial examination 
procedure, the grant of a European patent for this application was 
published on September 14, 1994, the main claim having been 
restricted by the EPO to:

"A method for controlling fungi on plants comprising contacting the 
fungi with a neem oil formulation containing 0.1 to 10% of a 
hydrophoobic extracted neem oil which is substantially free of 
azadirachtin, 0.005 to 5.0% of emulsifying surfactant, and 0 to 99% 
water."

In June of 1995 a legal opposition against the grant of this patent 
was filed by Magda Aelvoet, MEP, on behalf of the Green Group in the 
European Parliament, Brussels, Dr. Vandana Shiva, on behalf of the 
Research Foundation for Science, Technology, and Natural Resource 
Policy, New Delhi, and the International Federation of Organic 
Agriculture Movements, based in Germany.

The Opponents submitted evidence to the EPO that the fungicidal 
effect of hydrophobic extracts of neem seeds was known and used for 
centuries on a broad scale in India, both in Ayurvedic medicine to 
cure dermatological diseases, and in traditional Indian agricultural 
practice to protect crops from being destroyed by fungal infections. 
Since this traditional Indian knowledge was in public use for 
centuries, it would seem that the patent application in question 
lacked two basic statutory requirements for the grant of a European 
patent, namely novelty and inventive step (in the U.S. non-
obviousness).

In addition, the Opponents charged that the fungicidal method claimed 
in the patent was based on one single plant variety (Azadirachta 
indica) and hence resulted in at least partially monopolising this 
single plant variety. Since the European Patent Convention (EPC) 
explicitly prohibits the patenting of plant varieties, the patent 
should therefore be revoked.

In a first preliminary statement of September 30, 1997, the 
Opposition Board of EPO held that in summary, it appeared that "the 
present patent cannot be maintained" in view of the [evidence 
supplied by the Opponents] for lack of novelty and inventive step. 
Moreover, the content of [additional evidence filed by the Opponents] 
could "possibly form a very relevant prior art with regard to the 
inventive step."

In a second preliminary statement of June 15, 1999, the Opposition 
Board of EPO held that according to evidence supplied by the 
Opponents it appeared that "all features of the present claim (of the 
patent) have been disclosed to the public prior to the patent 
application during field trials in the two Indian districts Pune and 
Sangli” of Maharashtra, Western India, in summer 1985 and 1986. 
Furthermore, the Opposition Board held that on the basis of other 
evidence supplied by the Opponents, it appeared to be "mere routine 
work for a skilled person to add an emulsifier in an appropriate 
amount" and that therefore, "the present subject-matter was 
considered not to involve an inventive step."

Counsel for the Opponents in the Oral Proceedings will be Dr. Fritz 
Dolder, Professor of Intellectual Property, Faculty of Law, 
University of Basel (Switzerland).


THE NEEM TREE

The botanic name of the Neem Tree is Azadirachta indica, which is 
taken from the Persian name for the tree, Azad-Darakth, meaning "the 
free tree." The tree is a member of the mahogany family and is 
indigenous to the Indian subcontinent. Over the past century it has 
been introduced and now flourishes in many countries of Africa, 
Central and South America, the Caribbean and Asia. Neem trees are 
attractive tropical evergreens that can grow up to 30 meters tall and 
2.5 meters in girth. Their spreading branches form rounded crowns as 
much as 10 meters across, and they may live for more than two 
centuries.

It is in India that the tree is most widely used. It is mentioned in 
Indian texts written over 2000 years ago and has been applied for 
centuries in agriculture as an insect and pest repellent, in human 
and veterinary medicine, toiletries and cosmetics. It is also 
venerated in the culture, religions, and literature of the region. 
India has freely shared its "free tree" and knowledge of its myriad 
uses with the world community; but now, through the patent sytem, 
this important resource is becoming the private property of a few 
corporations.


THE NEEM PATENTS

At the time the Neem patent challenge was filed, only four patents 
had been granted on Neem products by the European Patent Office. 
Today one can find 40 neem patent applications at various stages in 
the European Patent Office, and 90 have been granted worldwide. These 
include claims for insecticides, fungicidal effects, methods of 
extraction, storage stable formulations of one of the active 
ingredients, azadirachten, contraceptives, and medical uses. The 
majority of neem "proprietors" are transnational corporations, such 
as the pharmaceutical company Rohm and Haas, and the agrochemical 
giant W.R. Grace. 

It should be noted that none of the neem patents involve a 
genetically engineered product; neither has the tree itself been 
patented, nor any of its parts. The case which will be heard May 9th 
and 10th involves a simple oil-based extraction of coarsely ground 
seeds from the Neem tree.

A list of all the Neem patent applications at the European Patent 
Office will be available at the Press Conference or can be ordered 
from one of the numbers below.


THE NEEM TREE AND BIOPIRACY

The neem patents will result in major financial gains for their so-
called owners, but the communities which first understood the neem's 
uses and shared this knowledge with the rest of the world will not be 
compensated at all. The neem patents are just one in a large 
catalogue of genetic resources originating in the South over which 
intellectual property rights are being asserted by a few 
multinational corporations originating, for the most part, in the 
North. The Northern patent system was not intended to recognise or 
reward as inventive the products of community innovation processes 
such as those which created the various uses of the neem today. It is 
only when these uses are described in the terms of Western science 
and technology that an "invention" is deemed to have taken place and 
an individual "inventor" or a set of individual "inventors" is 
allowed to be rewarded with the monopoly property rights that make a 
patent worth having. This is the mechanism through which a massive 
transfer of biological and intellectual wealth is taking place--from 
the Third World to the North.

The fungicide claimed in the USDA/W.R. Grace patent cannot be 
produced without naturally occurring neem seeds. One direct impact of 
the corporate monopoly on the Neem made possible by the patent system 
is a staggering increase in the companies' demand for seed. A 
processing plant set up by Grace in India can handle 20 tons of seed 
per day. Almost all the seed collected - which was previously freely 
available to the farmer and healer - is now purchased by the company, 
causing the price of neem seed to rise beyond the reach of the 
ordinary people. Neem oil itself, used for lighting lamps, is now 
practically unavailable, as the local oil millers are not able to 
access the seed. Poor people have lost access to a resource vital for 
their survival - a resource that was once widely and cheaply 
available 
to them.

In an effort to deal with the problems of biopiracy there were 
attempts to introduce a mechanism for "prior informed consent" into 
the EU Directive on "Legal Protection of Biotechnological 
Inventions." However, this controversial legislation was enacted in 
July 1998 without building in any of the proposed protective 
measures. Now efforts are being focused on the Biodiversity 
Convention as an international legal instrument to require that 
patent applications involving biological resources identify the 
source of the material.


THE NEEM CAMPAIGN

The Neem Patent challenge was initiated in solidarity with the Neem 
Campaign, which was launched in 1993 by farmers in India who feared 
that their genetic resources and traditional knowledge were coming 
increasingly under foreign control through the legal mechanism of 
patents. They likened what they were experiencing to a modern form of 
"enclosure of the commons" - but in this case it was not public land 
which is being privatized, it was public knowledge. A delegation of 
Indian farmers and scientists is bringing to Munich 500,000 
signatures of Indian citizens demanding that the patents on Neem be 
withdrawn. 


ORGANIZATIONS SUPPORTING THE NEEM PATENT CHALLENGE:

- Research Foundation for Science, Technology, and Natural Resource 
  Policy
- Magda Aelvoet, Belgium Minister of Consumer Protection, Public 
  Health, and the Environment
- International Federation of Organic Agriculture Movements (IFOAM)
- The Greens in the European Parliament
- The Schweisfurth Stiftung (Germany)
- Kein Patent auf Leben (Munich, Germany)
- The European Coordination No Patents on Life! (Switzerland)
- A-SEED (International, based in Amsterdam)
- GAIA (International, based in U.K.)
- Oxfam-Wereldwinkels (Belgium)
- Oxfam-Solidarity (Belgium)
- Ecoropa (France)
- Oxfam G.B.
- Erklarung von Bern (Switzerland)
- Keine Patente auf Leben (Koordination Schweiz)
- Action Aid (U.K.)
- Five Year Freeze (U.K.)
- The Edmonds Institute (USA)
- GRAIN (international, based in Barcelona)

In addition to the three official Opponents in this case, the 
following organizations were listed on the original Legal
Opposition as associating themselves with and supporting the
action:
- Karnataka Rajya Raitha Sangha (India)
- Third World Network (Malaysia)
- The Green Group in the European Parliament (EU)
- The European Coordination No Patents on Life! (Switzerland)
- Rural Advancement Fund, International (Canada)
- Cultural Survival Canada (Canada)
- The Cultural Conservancy (USA)
- The Edmonds Institute (USA)
- Institute for Agriculture and Trade Policy (USA)
- Washington Biotechnology Action Project (USA)
- Rio Grande Bioregions Project (USA).


FOR FURTHER INFORMATION, call:

>From May 8th – 10th: +(49 0)172 896 38 58
Before and after, telephone one of the Opponents:
Dr. Asfar Jafri at +9111 696-2589 (India)
IFOAM at +49 6853 5190 (Germany) 
Steve Emmott at +322 284-2026 (Belgium) 


PARTS OF THIS BACKGROUND INFORMATION WERE DRAWN FROM:

Intellectual Piracy and the Neem Patents, Research Foundation for 
  Science, Technology and Natural Resource Policy, Dehradun,
  India, 1993.
Campaign against Biopiracy, Research Foundation for Science,
  Technology and Ecology, New Delhi, India, November 1999.

The above publications will be available at the Press Conference in 
Munich on May 8th or may be ordered from RFSTE, !-60, Hauz Khas, New 
Delhi – 110 016, India.

Neem, A Tree for Solving Global Problems, National Academy Press, 
  Washington DC, 1992.




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