People's Democracy

  Final Amendments To The Patents Act And Our Critics - II

Prabir Purkayastha

IN all the examples given in Part I of the article (PD May 02-08, 2005), if the Left had referred this matter to the Joint Select Committee of the Parliament, 2002 Act with much worse provisions than that AMTC, and others are criticising, would have remained in force. All these provisions that have now been modified pertain to the 2002 Act and are not a part of the Ordinance that the government had brought before the parliament. Nowhere in their criticism of the 2005 Act, do the critics discuss the original 2002 Act, making it out as if the current provisions of the 2005 Act are all new ones introduced to dilute the better ones that exist in the 2002 Act. Neither is there a recognition that the changes forced by the Left uses the loopholes that exist within TRIPS and expands on the flexibilities available.

LOSING OPPORTUNITY TO STRIKE DOWN TRIPS

The other criticism that has emanated is from quarters such as Vandana Shiva, who has claimed that the left parties lost a golden opportunity to strike down TRIPS in WTO, “Through the Indian parliament, one billion people, a sixth of humanity would have voted down TRIPS in the WTO. This historical opportunity has been sadly lost by the Indian left.” Interestingly enough, she also states in the same article that as TRIPS is currently under review, somehow its provisions are no longer binding. It should be quite obvious to even those with a rudimentary understanding of law that if India took binding obligations in WTO to incorporate product patents in its Patents Act, this obligation remains till a change in the WTO/TRIPS Agreement itself. In any case, we cannot have it both ways -- either we need not have incorporated product patents in the Patents Act as the TRIPS provisions have become non-binding or striking down TRIPS would have led to voting down of TRIPS in WTO.

FACTUALLY WRONG ALLEGATIONS

Vandana’s has written that the coalition that was built up against the Patents Ordinance of December 2004 had asked for continuation of the process patent regime. Factually, this is wrong. There were a series of discussions and meetings that had been held on this. In all this, the consensus was that that though the groups concerned did not agree with the TRIPS framework, for the limited purpose of the Patents Act, they were arguing for taking advantage of the flexibilities within TRIPS, while asking government of India to fight TRIPS in WTO. This was the basis on which the Left, in consultation with the National Working Group on Patents Law, submitted its set of amendments to the government. The Joint Action Committee (which Vandana refers to above) clearly stated this understanding as can be seen in its memorandum. “The need to fully exploit the niches of flexibility available in TRIPS so as to redress the tilt in favour of the MNCs has now been universally recognised. In sharp contrast to this changing perception, the government is adopting a simplistic, conformist approach of hurriedly "aligning" our Patent Law to the coercive version of TRIPS.” The opposition was to this coercive TRIPS-plus version and refusal to even use the limited flexibilities of TRIPS. The memorandum then outlined the specific amendments that the Joint Action Committee wanted and was a summary of the Amendments that the Left had already submitted. A rejection of the product patent regime is not there anywhere in the Joint Action Committee’s memorandum.  Therefore, if Vandana wanted the Joint Action Committee to oppose the product patent regime itself, she certainly did not articulate it at that time. In any case, we have dealt with the argument regarding walking out of WTO/TRIPS earlier, which is what this position leads up to.

ARGUMENTS FOR DISMANTLING TRIPS

Vandana’s second argument is that TRIPS is somehow non-binding because it is under review in the Doha round. This is mere wishful thinking. It is elementary that no international treaty becomes non-binding if there is a review. For example, Nuclear Non-Proliferation Treaty is currently up for review in May this year. A signatory to NPT cannot become nuclear without first withdrawing from the treaty merely because there is a review provision in NPT. All treaties generally have review clauses built into them and we should try and use this provision to argue for dismantling TRIPS. But we would be laughed out of court if we claim that the review clause automatically makes the TRIPS provisions non-binding.

The only issue on which we had argued that we need not comply with TRIPS was on the issue of micro-organisms. Not being TRIPS compliant on micro-organisms, which is a small part of TRIPS is quite different from not providing product patent protection, which is the reason for TRIPS in the first place. Even here, we had argued that before the protection is incorporated in the Act, either a Parliamentary Committee or as it is now, a Technical Committee, which should go in greater, details on the issue. It directly concerns Indian agriculture and also, there are other treaties on this – the Biodiversity Treaty, the International Treaty on Plant Genetic Resources – which we have to take into account when considering the Patents Act. It is unlikely that we would have any major repercussions if we had postponed this by a few months.

WHAT IS NOT PATENTABLE?

Vandana’s third argument is regarding the dropping of the word plant in the 2002 Act from a section of what is not patentable, implies that plants or seeds can now be patented. In her words “This has opened the flood gates for the patenting of genetically engineered seeds.” All life forms except micro-organisms are still not patentable under the current Act.  The section 3(j), which was added in the 2002 Act after dropping the word plants from 3(i), explicitly bars animal, plants and seed patents.

Some people have argued, as Vandana is also doing that the rider in 3(j) of “essentially biological processes for production of propagation of plants and animals” imply seed patents and therefore this opens genetically engineered plants and animals for patenting. That plants and animals cannot be patented nor their propagation through biological means, is clear from the Act. Therefore neither the Bt Cotton plant itself nor its seed can be patented. However, the production process of the seed by a non-biological means can be patented and also possibly the Bt gene (under the micro-organisms clause if we do not define micro-organisms narrowlys). If the Bt gene is spliced into a hybrid variety of seed, then the farmer cannot save his/her seed not because this is disallowed under the current law – its is not – but because like all other hybrid seeds, the next generation lacks the qualities of the first. That is why the farmers face a monopoly situation, as they also do for other hybrid seeds. If the seeds were not hybrid, then the current condition of saving seeds and exchanging them between farmers would continue as it does for all traditional varieties. The monopoly here comes not from the Bt gene but from the “natural” monopoly of the hybrid seed. The hybrid seed monopoly has existed for quite some time and is not new to the Bt situation. What is creating the specific problem is that with the possible introduction of Genetically Modified Organisms (GMO’s), the monopoly of seeds is going to pass into the hands of private seed companies. Unlike the earlier green revolution, which came from public domain science, the GMO “revolution” in agriculture is coming from private domain science and therefore the danger of putting the entire third world agriculture under the yoke of global agribusiness monopolies.

NON PATENTABILITY OF SEED

Vandana has also argued that as seeds can now be considered as products, the above provisions combined with product patent means seed monopoly as a product and not through the hybrid route as discussed above. Seeds are not a products and it is stretching the argument too far that the product patent clause overrides the non-patentability of seeds specified in the Act elsewhere. The specific issue of seed monopoly will have to be examined in the context of the Plant Varieties Protection Act and the new Seeds Act, which is being brought before the parliament.

The whole issue of agriculture and implications of GMO for our agriculture needs to be discussed now that the Seeds Act is being brought before the parliament and the non-notification of the Plant Varieties Protection Act even after 4 years of its passing. However, advancing that seeds can now be patented, as the reality of the Patents Act, carries the danger of becoming a Monsanto argument, which can then quote the authority of “experts” such as Vandana for pressing their seed patenting claims.

Vandana’s argument using US judgements for possible consequences in India have little relevance as what is likely to happen here is based on our patents law and not that of the US. The danger of crying wolf the Vandana way is that it trivialises the real opposition to the Patents issue and creates straw figures that the pharma and agribusiness lobbies can easily knock down. Of course there is also the other danger that the patents office and the courts may take Vandana seriously and start granting patents for seeds and plant varieties!

PATENTING OF MICRO-ORGANISMS & NON-BIOLOGICAL PROCESSES

The problem of patenting of micro-organisms and non-biological processes for the “production of propagation of plants and animals” stems from the 27.3 provision of TRIPS, which unfortunately we have signed and incorporated in the 2002 Amendments of the Act. Unfortunately, the flexibilities on this count within the TRIPS formulation are very little: the only major avenue here is the definition of what is patentable as a micro-organism. This is what the technical committee is supposed to explore. Other than that, the battle here will have to be fought on many fronts. If genetically engineered products have advantages, public domain science needs to be strengthened so that the monopoly of global agribusiness MNCs can be broken. Rights of traditional communities and farmers, who have nurtured the existing gene pool needs to be protected.

The review of TRIPS in WTO has to be taken up urgently so that developing countries can save their agriculture from global MNCs. We have already seen the impact of accepting product patents on the AIDS issue in Africa and other countries. There is no reason to wait for a similar development to take place in global agriculture. However, this requires a global movement against TRIPS in which both pharmaceuticals and agriculture are taken up.  And the widest mobilisation of groups and activists.  

(Concluded)