Biopiracy
• Biopiracy is defined as, “the illegal
appropriation of life – micro-organisms, plants
and animals (including humans) and the
traditional knowledge that accompanies it”
• Multinational corporations (MNCs) have been
searching for rich natural resources
everywhere to make out a product along with
the traditional knowledge prevailing there,
then patent it and mint money out of it.
Indigenous people have been growing plants for
centuries based on their traditional knowledge and
considered as public domain. Patent is for a new
product or new idea or process or knowledge or
innovation. Hence, the traditional knowledge is
effectively excluded from obtaining patent. Plants
cannot be patented but their genes and active
compounds can be patented. So, the MNCs make
use of this knowledge and resource to make
windfall profits
• This is an illegal appropriation of rights of
indigenous people. It is also a violation of
international conventions and domestic laws, if
any. Hence, biopiracy is a new from of
colonialism of indigenous people to plunder their
knowledge and the national resources.
• Naomi Roht-Arriaza (1996) observed:
• Indigenous and the traditional communities have
had no practical opportunity to participate in the
development of national or international
intellectual property system.
• Marcia Ellen Degeer (2003) observed that –
“Patent law is the antithesis of Indigenous
communities, because it is based on monopolistic
and exclusionary rights while tribal communities
emphasize the needs of the group and the benefits
of all over the individual”.
• According to the patent law, an object or claim for
patent will be granted when the following criteria
are fulfilled; the object or claim be:
• i) new
• ii) Non-obvious and
• iii) Useful
Newness
• Indigenous people gathered knowledge passed on
over generations and known to at least more than
one person. This knowledge was an ‘invention’
when it was gathered or evolved over ages when
patent law was unknown and now the law will
consider it nothing new in it.
• Patent law considers that when an individual comes
up with some innovation then granting patenting
should be given so that he/she will enjoy exclusive
rights which will benefit the society also. It is the
reverse way in the case of indigenous people.
• Cultural knowledge benefits the community
which is prioritized over the individual. While
market economy focuses an individual to
benefit the society, the indigenous people
consider society benefits first as this will
benefit the individual also ultimately.
• Patent law was written by the west for its
benefits with least consideration for the
resource poor people and indigenous people.
• Further, published information is not accepted
for granting patent. Many anthropologists’,
ethnobotanists and other scholars have been
documenting and publishing traditional
knowledge in the pretext of research of which
the indigenous people don’t know anything.
• In one way this prevents them in seeking any –
use right but such published information could
benefit them as MNCs cannot seek rights over
such indigenous knowledge.
Non-obviousness or Inventive
Requirement
• It is defined as follows: “A patent may not be
obtained….. if the differences between the
subject matter sought to be patented and the
prior art are such that the subject matter as a
while would have been obvious at the time the
invention was made to a person having ordinary
skill in the art to which said subject matter
pertains”.
• While passing judgement in the Graham Vs John
Deere case, the USA Supreme court stipulated
four criteria for non-obviousness. They are:
1) First, the scope and content of the prior art should
be ascertained
2) Second, the level of ordinary skill in the
particular field should be assessed.
3) Third, the difference between the prior art and the
claims at issue is examined.
4) Finally, a determination is made as to whether
these differences would have been obvious to a
lay person in the applicable field at the time.
• In other words a patent is considered obvious if a
person could have created the invention with
information known to the public at large.
• Going by this view, MNCs can patent genes as the
biological matter was not considered earlier for
this purpose.
• A plant and its medicine use is known to
indigenous people. Now, the plant can be taken to
lab, the active ingredient is separated and
patented.
• Thus, the resource and the knowledge of the
indigenous people get stolen in a biological way.
Usefulness or utility Requirement
• In order to grant patent to an invention, it should
serve minimal useful purpose. That is, it should
offer profits. Indigenous people never consider
profit while making medicines or other
preparations. So they are by passed on this
account also by the MNCs.
• Further, the level of awareness and knowledge of
the indigenous people are very limited. They lack
money to pursue legally also as filing a suit a
involves lot of money till it is disposed off.
Bioprospecting
• Any effort to find biological resources and the
related indigenous knowledge for commercial
exploitation is called Bioprospecting.
• Bioprospecting facilitates biopiracy as it
identifies biological resources and traditional
knowledge with potential for commercial use
and biopiracy appropriates them without
obtaining Prior Informed Consent (PIT) or
providing adequate compensation.
Globalization
Trade is a dynamic economic activity that brings
trading countries closer to each other and rapid
global trade has made boundaries irrelevant
and led to more inter-dependence among the
countries. Globalization is the integration of
national markets. It is the internationalization
of markets for goods and services and financial
markets. It had led to the emergence of
Multinational Corporations (MNCs) which
operate as transnational enterprises.
• Globalisation provides enhanced market
access when it enjoys comparative advantage
for its products. It means when a country can
produce and sell goods of acceptable quality at
a price lower than prevailing prices then it
enjoys an advantage as its products would be
in demand in importing countries.