Food Patents—Stealing Indigenous Knowledge?

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  • by Anup Shah
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Here's a story -- probably apocryphal -- from 17th century Kerala [India]: The Portuguese had anchored off the Malabar coast and were received with warmth by the Zamorin. After a few days, the palace guards rush breathless into the court, lit with alarm. "Your Majesty, the foreigners are on the hill slopes," they report. "uprooting pepper vines and carrying them away to the ships. If they begin to grow these in their lands we will lose our trade." The Zamorin is unperturbed: "Ah, don't worry too much. They may take the vines but how can they take our monsoons."

Abduction of Turmeric provokes India's wrath1, Good News India, January 2002

Biopiracy and patenting of indigenous knowledge is a double theft because first it allows theft of creativity and innovation, and secondly, the exclusive rights established by patents on stolen knowledge steal economic options of everyday survival on the basis of our indigenous biodiversity and indigenous knowledge. Over time, the patents can be used to create monopolies and make everyday products highly priced.

Vandana Shiva

On this page:

  1. The problem
  2. Some examples
  3. An International Undertaking to tackle the issue?
  4. More information

The problem

Intellectual property rights2 are supposed to help protect investments into research and development and stimulate innovation by providing incentives to invent, progress, develop etc. The promise of just reward for one's efforts are important. Yet, there are criticisms that the way intellectual property rights related texts have developed, they put more emphasis on protecting ones creations and stifling other's ability to compete.

In the area of biotechnology there are further debates and issues3 on the right to patent living organisms, especially resources and seeds that have been developed or passed on as traditional and public knowledge. This Capitalizing on public knowledge4 often comes into conflict with indigenous knowledge and the rights of indigenous people, sustainability of local ecosystems, and even the ability of nations to provide food security and protection of the global environment. As a result, this has also raised many philosophical questions.

Large transnational corporations like Monsanto, DuPont and others have been investing into biotechnology in such a way that patents have been taken out on indigenous plants which have been used for generations by the local people, without their knowledge or consent. The people then find that the only way to use their age-old knowledge is be to buy them back5 from the big corporations. In Brazil, which has some of the richest biodiversity in the world, large multinational corporations have already patented more than half the known plant species. (Brazil is estimated to have around 55,0006 species of flora, amounting to some 22% of the world's total. India, for example, has about 46,0007.)

Cartoon depicting impact of food patents where poor lady finds her traditional plants and herbs unknowingly patented and can no longer be used
© Centre for Science and Environment8,
Global Environmental Governance9

A patent gives a monopoly right to exploit an invention for 17-20 years. To be patentable an invention must be novel, inventive and have a commercial use. Controversially though, the US and European patent offices now grants patents on plant varieties, GM crops, genes and gene sequences from plants and crops. The current WTO patent agreement, TRIPs - Trade-Related Aspects of Intellectual Property Rights - has been very controversial in this respect for many developing countries who want to have it reviewed, but are being somewhat blocked by the wealthier nations from doing so.

As reported10 by Environment News Service, "Knowledge is proprietary. It belongs to corporations and is not accessible to farmers," [Dr. Altieri] said. Altieri feels that biotechnology has emerged through the quest for profit, not to solve the problems of small farmers. "Scientists are defending biotechnology ... but at the same time there's a lot of money from corporations going into universities, influencing the researchers in those universities in the wrong direction," Altieri said.

The cost to developing countries in "pirating" their knowledge has been considerable:

"Vandana Shiva believes that the West has a clever structure in place. Using convenient patent laws as a system, the Trade Related Intellectual Property [TRIP] instrument as a stick and the World Trade Organisation [WTO] as the enforcing authority, the First World is seeking to 'rob' the Thirld World. She says in a rigorous article11: "When the US introduced IPRs in the Uruguay Round as a new issue, it accused the Third World of 'piracy'. The estimates provided for royalties lost in agricultural chemicals are US$202 million and US$2,545 million for pharmaceuticals. However, as the Rural Advancement Foundation International (RAFI)12, in Canada has shown, if the contribution of Third World peasants and tribals is taken into account, the roles are dramatically reversed: the US owes US$302 million in royalties for agriculture and $5,097 million for pharmaceuticals to Third World countries.""

Abduction of Turmeric provokes India's wrath13, Good News India, January 2002

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Some examples

In Texas, a company called RiceTec took out the patents on Basmati rice (which grows in the Indian and Pakistan regions) and have created a genetically modified Basmati rice14, while selling it as normal Basmati -- and it was not against the law, either. In fact, four of the patents were withdrawn in June 2000, when the Indian government formally challenged the patent. However, it, and other incidents continue to raise controversy15 on patenting indigenous plants. Eventually though, 15 of the 20 patents were also thrown out16 by the US Patent and Trademark Office (USPTO) due to lack of uniqueness and novelty. However, towards the middle of August 2001, three patents were awarded to RiceTec -- to variants called Texmati, Jasmati and Kasmati, all cross breeds of Basmati and American long grain rice, while RiceTec was also given permission to claim that its brands are "superior to basmati" as reported by17the Guardian, who also point out the uproar that has caused in Indian political circles. The article also points out how RiceTec CEO doesn't understand why there is such a fuss over this, yet he perhaps doesn't see ActionAid's point (also mentioned in the news article) that "[t]here is growing concern that corporations are taking advantage of traditional Indian crops developed over thousands of years by farmers, without any recompense for the poor people who do all the work." (It is a further irony that the CEO is Indian in ancestry, himself.)

There has also been an unsuccessful attempt18 by RiceTec with Thailand's Jasmine Rice as well in 1998.

"London's Observer reported that there were more than 100 Indian plants awaiting grant at the US patent office. And patents have already have been granted to uses of Amla, Jar Amla, Anar, Salai, Dudhi, Gulmendhi, Bagbherenda, Karela, Rangoon-ki-bel, Erand, Vilayetishisham, Chamkura etc, all household Indian names. These need to be vacated.

Bio-piracy doesn't affect just India. Much of Africa and Latin America are prowling grounds for First World's knowledge pirates."

Abduction of Turmeric provokes India's wrath19, Good News India, January 2002

A US Patent Authority ruling did manage to prevent20 another company from using turmeric to create bi-products because there intentions were not novel and turmeric had been around for a long time. They also canceled21 a patent on the Ayahuasca plant, a sacred plant for many indigenous people in Latin America.

"Patents and intellectual property rights are supposed to prevent piracy. Instead they are becoming the instruments of pirating the common traditional knowledge from the poor of the Third World and making it the exclusive "property" of western scientists and corporations."

Vandana Shiva, Poverty and Globalization22, Reith 2000 Lectures, BBC

In India, these and other events have led to much criticism23 on the ability to patent24 many indigenous plants so easily by big corporations. Another patent causing outrage has been a remedy for diabetes involving eggplant, bitter gourd and jamun, the fruit of the rose apple tree extract. It has been common knowledge in India for centuries, yet again there is an attempt25 to patent it.

There were also fears in India that Europe would follow USA and Japan's examples of bio-piracy26, by allowing patents of indigenous plants and life-forms, which have already led to genetically modified versions of these without sufficient proof that they are safe to consume. Well, they do not need to worry any longer, because it has actually happened27.

A number of food ingredients and plants in India have been, or have seen attempts to be, patented by various biotech firms. As this article suggests, US patent laws28 may be part of the problem.

As Inter Press Servicereports29, "Over the last 10 years, for examle, [sic] the US-based chemical giant DuPont has filed approximately 150 applications for patents on genetic resources with the European Patent Office."

While many biotech companies claim that genetically engineered foods will help alleviate hunger and increase food security, their acts of patenting the knowledge and food that has been developed over centuries itself may be a threat to food security30, due to more concentrated ownership and the political advantages that goes with that. The large biotech firms are mainly from western nations, especially America. (Such control over basic resources can and has been used as a foreign policy leverage tool, as seen in the food dumping31 section on this web site.)

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An International Undertaking to tackle the issue?

"Patent proponents keep banging on about the importance of IPR for access and innovation. But this is a smokescreen. If access was the issue, then the evidence stands against IPR: it restricts the flow of germplasm, reduces sharing between breeders, erodes genetic diversity, and, all in all, stifles research. What is actually at issue is the question of whose interests agriculture R&D should serve. IPRs are suited to the profit strategies of the global seed conglomerates that want to dominate agricultural production worldwide. The transnational seed companies are building vast industrial breeding networks in all major crops and, with their economies of scale and ownership over technology through IPR, they will shut local private and public breeders out of the commercial market. For them, IPR is simply a means for controlling the market and extracting more profit from it."

Devlin Kuyek, Intellectual Property Rights: Ultimate control of agricultural R&D in Asia32, March 2001, GRAIN (Genetic Resource Action International).

The concerns about things like farmer's rights, genetic resources and its ownership (private patents or public ownership, as these resources have been developed traditionally by small farmers for the public), access for all to these resources, sharing the benefits etc, were being discussed in an international agreement called the International Undertaking on Plant Genetic Resources for Food and Agriculture (the IU). There was potential for the IU to lead to a legally binding international agreement to tackle these concerns very positively.

According to a report by ITDG, at the beginning of June 2001, titled, Who will own the genes in our food?33

"The International Undertaking is the principal international agreement which could:

  • Protect the rapidly eroding resources which underpin global food security, and encourage their sustainable use;
  • Put pressure on governments to keep these genetic resources in the public domain, and where patents and other forms of intellectual property claims on them limit availability, facilitate access to these resources for current and future generations;
  • Ensure that farmers - especially the world's smallholder farmers on whom the food security of billions of people rests - can save, use, exchange and sell seeds and other propagating material in their customary manner [Farmers' Rights]
  • Create benefits to farmers from the commercial use of these resources, which they have developed and conserved." [emphasis is original]

Unfortunately, nations such as the United States, Canada, Australia and New Zealand argued that this is against the principles of the WTO and TRIPS (Trade-Related aspects of Intellectual Property Rights).

As a result of failed talks etc, a final conference was held that ended July 1, 2001.

The above predicted fears, however, came true, with what was termed a weakened34 text.

As a follow-up ITDG briefing mentioned35, the subordination of this to the WTO "allows corporations to continue to patent genes derived from food security crops which are listed under the IU. Other types of intellectual property rights can also be applied. This kind of privatisation is eroding farmers' access to the genetic resources for food and agriculture which they have developed. It threatens the world with:

  • loss of agricultural biodiversity
  • loss of farmers' livelihoods
  • loss of public sector research and development in agriculture
  • loss of public sector seedbanks"

On November 3, 2001 the slightly renamed treaty (to International Treaty on Plant Genetic Resources for Food and Agriculture) was adopted36 by a vote of 116 to 0 with two abstentions (the U.S. and Japan).

A welcomed aspect of this treaty is that it will prevent37 the patenting of food that has not been genetically modified, so that traditional and public knowledge will remain public. This was one of the most contentious aspects of the text which stated that farmers, researchers etc, "shall not claim any intellectual property or other rights that limit the facilitated access to the plant genetic resources for food and agriculture, or their genetic parts or components, in the form received from the Multilateral System." Genetic Resources Action International (GRAIN), mentions38 that "The US, Japan, Canada and a few others tried to get this deleted at the last minute [from the final text], but they were outnumbered." That is, as reported39 by the UK Agricultural Biodiversity Coalition, "Shortly before finalizing the new treaty, a U.S. proposal to delete this provision altogether lost by a vote of 97-10."

While the adoption of this treaty (which comes into effect after 40 nations have ratified) is a positive step, civil society organizations (CSOs) have welcomed it with concerns40, stating for example that (quoting from previous link):

  • It is not Fair: benefits are scarce, financial resources from OECD countries are not commensurate with the contribution made by farmers.
  • It is not Equitable: it is ambiguous about ensuring that all farmers and breeders will have free access to PGRFA [the acronym for the treaty], unrestricted by IPRs [Intellectual Property Rights].
  • It is not Comprehensive: just 35 genera of crops and only 29 forage species are included in the Treaty. [Emphasis is original]

They point out that still, many of the above-mentioned concerns still remain.

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More information

  • On the International Undertaking:
    • Ours to have and to hold41 How world food resources are threatened by seed patents, from the Guardian, December 6, 2000
    • UK Agricultural Biodiversity Coalition42 web site provides a lot of information on agricultural biodiversity and why it is important.
    • From the United Nation's Food and Agriculture Organization (FAO):
      • The Commission on Genetic Resources for Food and Agriculture43
      • The Official IU site44 which is part of the above commission site.
    • Sold to the highest bidder45, who start their article with: "If the world's plant genetic resources fall into private hands, people in the poor South could face famine and starvation." From New Scientist Magazine, Vol 168 issue 2269, 16 December 2000, page 16. (Link may require on-line free subscription, or try this alternative URL46 that re-posts that article.)
    • ITDG47, a non-governmental organisation which specialises in helping people to use technology for Practical Answers to Poverty
    • GRAIN48, Genetic Resources Action International, provides many resources, articles, reports, related to the International Undertaking.
    • Linkages49, is from the Canadian-based International Institute for Sustainable Development (IISD). The previous link provides details of various negotiations.
    • Patrick Mulvany, "Global seed treaty hangs in the balance50." Biotechnology and Development Monitor, (October 2001), No. 46, p. 20. This short article by Mulvany from the Dutch-based publication provides an insight into the various issues at hand.
  • On patents and intellectual property rights related to food, in general:
    • The section on TRIPS (Trade-Related Aspects of Intellectual Property Rights, formed under the WTO) in this UN 1999 Human Development Report51, Chapter 2 is very detailed, pointing out the positives and the numerous negatives with many examples.
    • Biopiracy and the Patenting of Stable Food Crops52, a report from ActionAid presents a good analysis into the current way patenting (or theft, as many in developing countries call it) of staple food crops affects people in Southern countries. (You will need the Acrobat reader to read this PDF file, which you can download from here53, if you don't have it.). Also, see ActionAid's other resources54 on this topic.
    • Many links55 are provided from le Monde.
    • Vandana Shiva has made many prominent speeches, written many essays etc on the topics of biodiversity, globalization, poverty, genetically engineered food, biopiracy/patenting and so on. The following is one such speech that includes all those issues, provided by the BBC. It is called Poverty and Globalisation56.
    • This web site's section on Free Trade, and in particular, the part on the World Trade Organizations Trade-Related Aspects of Intellectual Property Right agreement, or TRIPS57, for short.
    • What ITDG describes as risking a major threat to future food security58, this link provides a series of articles looking at the impact of patenting plant genetic resources used in food production.
    • Intellectual Property Rights: Ultimate control of agricultural R&D in Asia59, by Devlin Kuyek, March 2001, GRAIN (Genetic Resource Action International). This article provides an in-depth look at various issues.
    • From the Third World Network, their section on Biodiversity, Access, Indigenous Knowledge and IPRs60 covers issues that cover patents on food issues, as well as other issues.
  • (While this page concentrates mainly on the problems of patenting food and food ingredients, another problem exists with medical drugs that can be expensive due to patents and hence not available to those who need it the most. For more about that aspect, go to this web site's section on corporations and medical research61 to see how the pharmaceutical industry have been able to try and lobby a way to get their research protected, while thousands die from AIDS in Africa.)

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