India May Contest U.S. Patent on Diabetic Remedy
By Devinder Sharma
NEW DELHI, India, August 27, 1999 (ENS) - India may contest a patent obtained by a United States firm for a herbal anti-diabetic remedy based on eggplant, bitter gourd and jamun, the fruit of the rose apple tree. "The government is currently studying the case and based on that a decision will soon be taken," the Minister for Science and Technology, Murli Manohar Joshi said.
The American patent was granted on an edible composition comprising a mixture of at least two herbs selected from the group consisting of syzygium cumini (popularly known as jamun), Momordica charantia known as bitter gourd or bitter melon (Karela), Solanum melongena or eggplant (brinjal) and Gymnema sylvestre (gurmar). The herbal mixtures have been cited as dietary supplements and are claimed to be especially useful for lowering the glucose level in blood among those suffering from diabetes.
The use of these substances in the treatment of diabetes dates back many centuries in India and is mentioned in several ancient texts on healing - the "Wealth of India," the "Compendium of Indian Medicinal Plants" and the "Treatise on Indian Medicinal Plants."
Article 102 of the U.S. Patent Law, which defines prior art, does not recognise technologies and methods in use in other countries as prior art. If knowledge is new for the U.S., it is novel, even if it is part of an ancient tradition of other cultures and countries. v The Indian Minister of State for Agriculture and Water Resources, Shri Sompal, called the U.S. patent an "onslaught on the traditional knowledge and practices prevalent in the developing countries." He said that getting such patents revoked in the U.S. is no remedy.
"Why canít the U.S. Patent Office as well as the World Trade Organization (WTO) impose a deterring punishment to any company or institute seeking a patent based on indigenous products and knowledge?" he asked. Such a measure alone would forbid foreign companies from poaching on the traditional knowledge and known products, Sompal said.
Efforts to fight the controversial aromatic basmati rice patent, secured last year by an American firm, RiceTech, have not been successful. The Indian government is still locked in putting together an elaborate reply to the cleverly drafted patent application. The report of the technical committee, constituted by the government in a desperate effort to fight the patent, exceeds 1,500 pages. "At this rate, we will need to set up a separate ministry for fighting the patents," a senior official remarked.
Failure to enact appropriate legislation for biodiversity conservation and for the protection of geographical indications of any particular product is costing the country dearly. India has failed to take advantage of the Article 22-24 of the World Trade Organization's Trade-Related Intellectual Property Rights (TRIPs) that provides rules for geographical indicators.
"If biopiracy is to stop," said "The Hindu" newspaper in a July 28 editorial, "then the U.S. patent laws must change, and Article 102 must be redrafted to recognise prior art of other countries. This is especially important given that the U.S. patent laws have been globalised through the TRIPs agreement of the WTO."
Having such a law in place would have made it difficult for other countries to patent products like basmati rice, Darjeeling tea and the snack food Bikaneri bhujia that are unique to India.
Legislations like the Patent (Amendment) Act 1999 have been enacted by the Indian government under pressure from the WTO. Other legal mechanisms that would provide for sovereign control over the indigenous plants and traditional knowledge in light of the UN Convention on Biological Diversity, have remained pending before Parliament.
As a result, private companies and institutes from America, Europe, Japan and Australia are known to be scouting the countryside for valuable plant species and micro-organisms. Several multinational pharmaceutical giants have entered into research collaboration with Indian companies to collect and transfer plant and animal species.