Francisco A. Laguna & Priya Lamba
India – a land of diversity. As the seventh-largest country in the world, and the second-most populous, it has more than: 1.2 billion people; 400 languages; 30 religions; 45,500 species of plants; and 91,200 species of animals on record. With such diversity, it is not difficult to see why this BRIC nation has been receiving much attention in recent years. This first blog series will explore the development of intellectual property rights in India when it comes to the patenting of biodiversity resources and related traditional knowledge.
Home to four of the world’s richest biodiversity hotspots (Eastern Himalaya, Indo-Burma, Western Ghats and Sri Lanka), India has much to gain, and arguably lose, when it comes to the patenting its genetic animal and plant resources and traditional knowledge. Justifications for creating a property rights system include providing an incentive to invent, stimulating investment of additional capital needed for further development and marketing, encouraging disclosure of technological information for the public welfare, and promoting the exchange of products and information across national boundaries by providing protection for the industrial property of foreign nationals. All of these are applicable in India’s case. As a developing country, India’s need for foreign investment and financing are important for its maturity. At the same time, foreign nations will only make sound financial investments; they will only make those investments in which their money, interests and rights are protected.
Both India and the global community have much to benefit from the development of biotechnology and other products resulting from India’s diverse portfolio of resources and traditional knowledge. This has been particularly evident in the pharmaceutical industry. The process, however, means granting companies – Indian and foreign – access to the country’s genetic resources for purposes of research and development. India has been striving to achieve a balance between these two sometimes conflicting priorities.
Of major concern in India is that the creation of an intellectual property rights system may threaten or undermine the rights and interests of indigenous peoples and communities. The existence of intellectual property rights laws do not necessarily ensure that the indigenous communities will receive the benefits for being “natural resource managers” or developing and adapting the traditional knowledge “from experience over the centuries.” This has become known as bio-piracy, which “relates to industrial patents that exploit indigenous biodiversity and traditional knowledge for the profit of (often foreign) companies without recognizing or compensating the source community.”
Culturally and socially, the promotion of indigenous peoples and their rights has been a focal point in the development of the country’s laws regulating bioprospecting and the use of Indian genetic materials. One point of discussion is that locals can experience an increase in the cost of native resources/traditional knowledge which may be subject to exclusive-use patents owned by foreign investors. Another area of concern is the genetic modification of the native resources, thereby making them “novel”. The novelty allows for the patenting of once-native materials. Investors then sell the modified version, which may impact the market for products made by indigenous communities or, again, it may increase costs. In either case, the argument is that cost increases either because they no longer have free and unrestricted access to the native resource – there is now a price tag on what used to be free – or because they must now pay a higher price set by the patent holder (see, e.g., India Rejects Boehringer’s AIDS Drug Patent Plea.) Indirect costs can include losses of market share for farmers who harvest the native species of plant/seed and have to compete with genetically modified versions of the naturally-occurring crop. (see, e.g., India-U.S. Fight on Basmati Rice is Almost Settled).
U.S. patents on the neem plant, turmeric, basmati rice, and karela are examples of these issues. Next week, we will discuss these patents and how they were challenged by Indian organizations.
TransLegal has assisted clients obtain the approval by the Genetic Engineering Approval Committee of products derived from genetically modified organisms for industrial use and labeling issues related to vegetarian foods. We also represented a group of US and Indian investors vying for the exclusive franchise for a US food chain, traveling to India 4 times in 2012. Contact us with questions related to doing business in India.