6:21 AM Jun 9, 1993


New Delhi 8 June (TWN) -- Indian ecologist and scientist Dr. Vandana Shiva has challenged the distinctions being sought to be drawn between socalled 'naturally' occuring genes and the 'bio-engineered' ones that are sought to be given patent protection under the Uruguay Round accords and has said either all biological material including those evolved by farmers over centuries was worth of intellectual property protection or none at all.

The present distinctions were a creation of 'patent lawyers' and "scientifically flawed and intrinsically racist, sexist and unjust", Vandana Shiva declared in a press statement challenging the Indian government views about accepting the Dunkel Draft Text on TRIPs and the view that the changes it was proposing would safeguard the rights of farmers in India.

Shiva was trained in nuclear physics before she became an ecology and development activist and is on UNEP created expert group looking at bio-diversity and safety issues of genetically engineered varieties.

Shiva said the most important issue on GATT and IPRs was the ethical one of who owns and controls living systems and organisms which have their own intrinsic value and diversity recognized this intrinsic worth and human and non-human species and put limits on what human beings could and could not do with other species..

The fact that the Dunkel text allowed for exclusions from patentability or commercial exploitation of things contract to public or moral order or threatening the environment was an indicator that the IPR issues had implications for ethics and ecology.

By giving in to US pressures under 'special 301', flood-gates were being opened to force India to yield on its "civilizational values and allow ownership of plants, animals and even humans over time. The US had already set a precedent by allowing patents on mammals and was now in the process of collective genetic material from diverse indigenous communities with the intention of patenting human lines. Special 301 demands means ...giving in to ultimate US objective of accepting the US patent system as the universal moral and legal order"

The provision in the Dunkel text about allowing 'sui generis' system for plants and not provide patents would not mean protection of farmers rights, but requires grant of monopoly rights to the seed TNCs either through patents or the Plant Breeders Rights under the UPOV.

(India has put forward amendments to the Dunkel proposals which would have the effect of enabling countries under the sui generis system to enable farmers to have traditional rights of saving seeds out of a harvest and for researchers' to use patented varieties to evolve new ones)

The Dunkel text would still require the sui generis system to be an "effective" one and the adequacy of norms and standards and availability would be judged in comparison to the UPOV as amended in 1991. And 'effective' would not mean number of varieties covered as Ganesan has said in the press interview but "effective in protecting corporate interests".

As far as the farmers were concerned, there was no difference between the patent system and the breeders' monopolies, and while neither could force the subsistence Indian farmer functioning outside the market system into the regulatory framework, "we need to recognise that other portions of the GATT relating to liberalisation of imports and exports of agriculture will force all farmers into the market system, making them dependent on inputs from the same TNCs which have TRIPs privileges...Over time, with the combination of policies implemented through structural adjustment or through GATT, all farmers will have been brought under the web of control of TNCs in the seed and agribusiness."

And the combination of reversal of burden of proof and GATT cross-retaliation would allow the corporate powers to force Third World governments to force their farmers to give up their own seed production and supply systems and the Indian subsistence farmers would be threatened by the GATT.

"The farmers, the original donors of knowledge and genetic resources will be treated as pirates and thieves under a perverse IPR regime which protects and real pirates and makes our governments the protectors of these pirates," the Indian ecologist charged.

She referred in this connection to the case of Neem (Indian tree with medicinal qualities) whose various parts have been recognized and used for centuries as biopesticides but which the US had seen fit to accept Robert Larson's claim of being the first "inventor" of a stable neem pesticide and granted him a patent.

Larson's patent for a storage stable Azadirachtin-based neem pesticide is not the only neem patent granted in the US, but six more patents had been granted covering the curative values of neem.

Under the GATT/TRIPs text when India would be forced to recognize all these patents, "all Indian manufacturers of neem products based on these active principles will have to pay US corporations royalties or stop manufacturing their products".

The US firm W.R.Grace had already bought up from Larson and others most of the neem patents and thus had become the monopoly proprietor of biopesticides which had come from the Indian neem tree and based on Indian traditional knowledge.

Shiva also challenged the Indian government view that its proposed amendments to the Dunkel text on naturally occuring genes ("naturally occuring biological material such as chromosomes, plasmids, DNA/RNA sequences/segments or parts thereof, howsoever derived are not patentable subject matter"), and said the term 'naturally occuring genes' was a creation of patent lawyers since all genes were naturally occuring.

Shiva, a physicist by academic training, pointed out the best that genetic engineering could do was "to relocate genes already existing in organisms".

"Hence all biological material, in the ultimate analysis, is naturally occuring", whereas in the IPR debate "naturally occuring" had been equated with material 'not manipulated by modern engineering technology".

"Naturally occuring" has become a new and clever way to "grab for free" the biological riches of the Third World and treat Western products and technology based on these riches as needing protection and reward. This is contrary to decades of discussions in UNESCO, FAO and WIPO that recognise that farmers have made intellectual contribution to the evolution of living diversity and that seeds and plant varieties that we have inherited are not just a gift of nature but carry within them transformations contributed by generations of farmers. Seed is not just nature but also culture and seeds of TNCs are also nature and culture.

"Either all biological material has to be recognized as natural and therefore non-patentable or all biological material influenced by human activity must be recognized as worth of intellectual protection independent of race, class or gender of the innovator. The present definitions of 'naturally occuring' are scientifically flawed and are intrinsically racist, sexist and unjust."