A worldwide fight against biopiracy and patents on life

By Martin Khor

There is growing worldwide opposition to the granting of patents on biological materials such as genes, plants, animals and humans. Farmers and indigenous peoples are outraged that plants that they developed are being 'hijacked' by companies. Groups as diverse as religious leaders, parliamentarians and environment NGOs are intensifying their campaign against corporate patenting of living things.

WORLDWIDE opposition to biological piracy' is rapidly building up as more and more groups and people become aware that big corporations are reaping massive profits from using the knowledge and biological resources of Third World communities.

There is growing public outrage that these companies are being granted patents for products and technologies that make use of the genetic materials, plants and other biological resources that have long been identified, developed and used by farmers and indigenous peoples, mainly in countries of the South.

Whilst the corporations stand to make huge revenues from this process, the local communities are unrewarded and in fact face the threat in future of having to buy the products of these companies at high prices.

The transnational corporations are racing one another to manufacture pharmaceutical and agricultural products, the main ingredients of which are the genetic materials of the medicinal plants and food crops of these local communities. The firms are also collecting other living things, ranging from soil microorganisms to animals and the genes of indigenous people, which they use for research and making new products.

These companies are rushing to apply to patent the new products containing the collected genetic materials, so as to prevent competitors from using them. They can then reap larger profits from being able to hike up prices for the products, or by charging royalties to other firms wishing to use the technology.

There is much at stake in this great race of companies to patent ahead of their rivals, for the coming century is already being termed 'the age of biology', when products derived from biological materials are expected to increasingly replace those made from metals and chemicals.

The genes of living organisms are the basic 'raw materials' of the new biotechnologies. The 'Gene Rush' has thus become a new version of the old 'Gold Rush', in the scramble for future profits.

Farmers and indigenous communities, backed by citizen groups, are protesting against the companies being given patent rights, as it is these communities that have been responsible for identifying and evolving the use of the plants for food, medicines and other functions.

The knowledge and use of 'biodiversity' resides with these farmers and indigenous people, which have shared their knowledge and plants freely. Yet through patent applications, the companies are now claiming the exclusive right to produce and sell many 'modified' plants and animals, which have been manipulated to contain selected foreign genes.

Third World communities are concerned that in future they will have to pay high prices for these materials, which in the first place they (more than any other party) had after all developed.

The knowledge, innovation and efforts of these communities are not acknowledged (and indeed are discarded) when the legal 'intellectual property rights' systems grant patents on genetic and biological materials and on living organisms to corporations. This injustice is being fought at different levels by farmers, indigenous people and public interest groups. For the past few years, NGOs such as RAFI, GRAIN and the Third World Network have been networking to raise general awareness of the phenomenon of 'biopiracy'. Indigenous groups and farmers are also getting together to put forward their viewpoints. In recent months, legal challenges have been filed against patents granted on biological products. In a parallel move, new campaigns have been launched by religious leaders and NGOs against the patenting of life.

The following are some of the actions by various groups around the world.

Legal challenges to patents

Some groups have recently filed legal petitions or test cases to challenge patents already granted.

* In Washington in September 1995, more than 200 organisations from 35 countries filed a petition at the US Patent and Trademark Office calling for the revocation of a patent given to W R Grace company to use a pesticide extract from the neem tree. They argue that the company has wrongfully usurped an age-old biological process used by millions of farmers in India and other countries for generations. The legal challenge is led by the US group Foundation on Economic Trends led by Jeremy Rifkin, with other key petitioners being the Research Foundation for Science, Technology and Natural Resources Policy (RFSTNRP) and the Karnataka Farmers' Union (both from India), the International Federation of Organic Agriculture Movements (IFOAM), and the Third World Network.

* In Brussels another legal petition was filed in June 1995 at the European Patent Office against a patent it had granted to W R Grace for a method that extracts the neem oil for use in controlling fungi on plants. The three opponents, European Member of Parliament Magda Alvoet, Indian scientists Vandana Shiva of the RFSTNRP, and IFOAM President Herve la Prairie, argue that the patent was wrongly given as the claims for the technique lacked novelty, inventiveness and clarity. The petition argues that the invention is now new as the patented method for extracting neem oil is a standard method used for many decades, whilst the anti-fungi effects of neem oil have been known in India for centuries and thus cannot be considered a 'discovery' as claimed by the company.

* In March 1995, the Swiss Supreme Court, in a landmark decision, ruled that the manzana variety of the camomile plant may not be patented. It revoked the patent that the Swiss patent office had granted in 1988 to the German pharmaceutical company Degussa/Asta Medica on its manzana variety. The case had been brought to court by a Swiss farmer Peter Lendi, president of the Bio-Herb Growers' Association.

* In February 1995, the European Patent Office withdrew key parts of a patent granted to a Belgian company (Plant Genetic Systems) and a US company (Biogen Inc.) for genetically engineered herbicide resistant plants. The patent was for plant cells made resistant to glutamine synthetase inhibitors by genetic engineering, and originally covered not only the gene which had been moved from a bacteria to various plants but also all plant cells and plants which contain the gene. After a challenge by Greenpeace, the Patent Office's Appeal Board ruled the patent may only cover genetically engineered genes and plant cells but cannot extend to a whole plant, its seeds and future generations of plants grown from the cells. The decision seems to imply that in Europe, patenting of genes and cells is permissible but not of seeds and plants. The limits thus set on patenting will have serious implications for the biotechnology industry.

Farmers and indigenous people against life patenting

Meanwhile, there have been activities by many different groups, including farmers, indigenous people, parliamentarians, religious leaders, and NGOs opposing the patenting of all life-forms, or living things.

In India, farmers' movements led by M D Nanjundaswamy of the Karnataka Farmers' Union, are campaigning against the patenting of seeds and plants and the operation of foreign grain companies in the country. In 1993, half a million farmers rallied in Bangalore to protest against the implications of the Uruguay Round treaty on intellectual property rights, which opens the door to patenting of genetic materials, seeds and plants.

Indigenous peoples' groups have held regional meetings in South America, Asia and the Pacific, to voice their opposition to the granting of patents to companies on plants and their genes. Also, at the UN Women's Conference in Beijing, 118 indigenous groups from 27 countries signed a declaration demanding 'a stop to the patenting of all life forms' which is 'the ultimate commodification of life which we hold sacred.' They also demanded that the Human Genome Diversity Project be stopped and a rejection of patent applications for human genetic materials.

Parliaments vote against life patents

Parliaments have joined in the fight by opposing proposed laws that would legalise patents on life. In March 1995, India's Upper House of Parliament forced the government to defer indefinitely a patent amendment bill to bring the Indian Patent Act in line with the World Trade Organisation's treaty on intellectual property rights. The bill would have allowed for the patenting of life forms.

Also in March, the European Parliament voted against the European Commission's proposed directive on 'legal protection of biotechnological inventions'. The directive would have allowed for patenting of biological materials and microbiological processes, with only some restrictions. The European Parliament vote was a major victory for NGOs such as GRAIN and for Green groups in the Parliament that had lobbied on this issue for many years.

Religious leaders and NGOs widen the campaign

In May 1995, leaders of 80 religious faiths and denominations (including the Protestant, Catholic, Muslim, Hindu, Buddhist and Jewish faiths) held a joint press conference in Washington announcing their opposition to the patenting of genetically engineered animals and human genes, cells and organs. 'We believe that humans and animals are creations of God, not humans, and as such should not be patented as human inventions,' they said in a signed statement. The leaders have launched an educational campaign to raise theological concerns over the patenting of life. Religious groups in other countries are also taking up the issue.

Environment and development NGOs have also been increasingly active. Groups like the Third World Network, RAFI and GRAIN have been carrying out educational activities and also carrying out lobbying in the Biodiversity Convention. A coalition of 14 United States groups in May signed a joint statement after a conference at Blue Mountain. 'As part of a world movement to protect our common living heritage, we call upon the world and the US Congress to enact legislation to exclude living organisms and their component parts from the patent system,' says part of the Blue Mountain Declaration.

Crucial global battles ahead

The campaign against life patenting is likely to spread, with more actions taken up by public interest groups at national level, and increased networking among these groups.

At international level, the World Trade Organisation and the Biodiversity Convention are two critical fora for setting principles and legal frameworks on the patenting of biological materials and life forms.

The WTO's trade-related intellectual property rights (TRIPs) agreement will have the most decisive influence over national laws. TRIPs has ambiguous language in its clause on living organisms: patenting of microorganisms is compulsory, plants and animals can be excluded, but protection of one kind or another is required for plant varieties. This clause is up for review after four years, and is already on the agenda of the WTO's trade and environment committee. The outcome of the review process will be of crucial importance.

The Biodiversity Convention is presently more 'friendly', in recognising 'farmers' rights' to their knowledge over the use of biodiversity. The rights of indigenous people are also likely to enter the Convention's future agenda. The treaty's references to intellectual property rights is finely balanced between recognising the need to implement IPRs and the need to ensure that IPRs do not block the sustainable use of biodiversity.

The challenge for those campaigning against life patents is to ensure that the WTO does not make it compulsory for member countries to patent living organisms, and to develop within the Biodiversity Convention the case against biopiracy and concrete measures to counter it.

Martin Khor is the Director of Third World Network.

*Third World Resurgence No. 63, Nov 1995, pp 9-11