Why Should It Be Easy For Them?

The Traditional Knowledge Digital Library has succeeded in revoking nine patents wth the EPO recently. As someone who led earlier patent fights that took years, do you think the TKDL is more effective?

You don’t need a digital library to fight a case. Whatever is being digitalized is the evidence. It doesn’t become evidence because it is in digital form. So I think it is a misconception to imagine that just putting it into the digital form now adds additional weight, because absolutely the same material in black and white is available, which is how it would have been taken to the court. That is what works and the power of what we started in 1994 with the neem case was that we really compelled them (patent offices) to recognize that the evidence doesn’t have to be in English. It could be in Urdu. You translate it. Putting it in digital form in fact can do the opposite. It’s just making it that much easier for biopiracy. You are now making the information more accessible.

But I understand that TKDL is not publicly accessible. It is only available to the patent offices?

Which is part of the problem, because the real fight in my view is to equip all your people to use that knowledge more. Why is it that we have a secret of our national heritage? It should be our public knowledge first. The best defense against biopiracy is in fact to use it and make it more available to the public of India, so more people continue to use it. The more it stays in the public domain as a living tradition the more stupid a piracy claim becomes. Closing the information from your own public is totally wrong. An effort of this scale should be in the public domain for the Indian public. It should be digitalized for keeping a living tradition alive within India. The school kid should know this is your heritage.

So how do we solve the problem of biopiracy?

Piracy is basically claiming illegally someone else’s property as yours, something that exists as if it’s your invention. That has to be solved through law. We involved ourselves in the neem, basmati and the wheat case, because we wanted public education on this issue. But every time we did it, we also said that this has to be solved by making biopiracy illegal. Now all the effort the Government of India is undertaking by, like you are saying, going after nine cases. Well it should spend that kind of effort to just tell the United States that sorry piracy of Indian knowledge is not acceptable, or piracy of Amazonian knowledge or African knowledge. As we have put in our intellectual property laws no to biopiracy, you must do so in yours.

Also the traditional knowledge digital library only focuses on traditional medicines, whereas what’s being commercialized on a very large scale today is agro bio diversity. Things like basmati, wheat, hundreds of patents on crops, so many of which come from India, crops that can survive floods, that can survive drought, that have strong tolerance in case of cyclones and hurricanes. None of that is covered in any way by the library. You have already shut that out of requiring protection.

There are still outstanding patents on neem in the US?

Many, and again we took that one case of the U.S. Department of Agriculture and W R Grace over a joint patent. We did it for political public education, but there are other cases, many, many other cases and within a month we will have a list of the new piracy claims and we are going to publish them. Part of the reason we are doing it is to show that this digital library is not helping the citizen know better what’s going on. It’s not helping the Indian citizen to have access to their own knowledge and it is the duty of our government to share that knowledge and keep it alive as living traditions.

When they started the digital library, I was saying you can’t be weak on the legal front and digitize your knowledge in a period of piracy, because it is like putting a label on everything precious in your house saying please look at this. I have an antique worth $1 million, this painting is worth $5 million. It is facilitating biopiracy. Because it is happening without an accompanying legal rewriting of the law, international law. Everywhere the U.S. is bullying to keep biopiracy alive and legal.

TDKL Director VK Gupta says the problem of biopiracy in India has been entirely resolved by the library.

No not at all. I had a student from a law school who wanted to work on this project and I said first thing is to find out how many new case have been found and he said we don’t give this to anyone in India. There may be legal challenges within India about the inadequacies of the steps taken by the Government of India.

TDKL’s contention is that now they have these agreements with the US patent office so the examiners are able to tap into the database when a patent application is filed?

If you are at the inspection stage and if there was due diligence it is fine, but then how come 85 cases of neem happened in the U.S.? And one thing that needs to be recognized is that the U.S. decided that economic globalization is a U.S. project, but it has been outsourcing all production and manufacturing to China and a bit to India. The US decided that it is going to make its money through royalties in intellectual property and not through production and manufacturing, which can happen anywhere in the world. But the money should come back to the U.S.

They have given their patent offices this incentive in a way to grant as many patents as you can. I might not be exact, but from what I remember something like 90% of applications are now granted. Now that trend is not going to change because of the digital library in India. That will only change when the US starts to do production back home and stops to depend fully on income coming from royalties rather than from actual production. The digital library is not a magic bullet to solve all these multifaceted problems related to patent monopolies and biopiracy.

What incentive you think US will ever have for changing this regime?

I think there is only one incentive and that is first of all a movement that I think is already growing around the issue of the knowledge commons and biological diversity. The fact that last year the economics Nobel Prize went to an economist who has worked on the commons is a sign that this idea that not everything has to be privatized is growing and these debates that have taken place through cases of neem, etc., are a challenge to all of this. This is the only place where this will get resolved in the long run — when the American people realize that this system is hurting them as ordinary people, that’s the incentive. As long as Washington thinks that the interests of their corporations, whether through piracy or monopoly, are the only things they need to protect, then nothing will change.

Pat Mooney of the ETC Group said that the Indian government has been very passive on the biopiracy issue in international forum. Do you agree?

Well, in earlier days India was aggressive and then along the way India really thought it had to play the role of a satellite of the US and the power equation shifted. That’s when the nuclear deal got signed. That’s when India started to take either a quiet stand or actually openly support the US. India has been on the wrong side of many issues, even Copenhagen…. For a long time, India stood for national sovereignty in a very, very clear way, in a strong way. India has to remember that position. It forgot it in Copenhagen, it forgot it in intellectual property platforms. It will just to have to remember it again. There is just too much at stake for the people of India and people of the third world.

Independent of patenting, companies can commercially exploit the knowledge. What can we do about that?

I think it’s absolutely wrong to take benefit of someone’s knowledge. It’s wrong to patent it or even without patenting it to derive profit and exclude the original community group culture from whom you have taken that knowledge and for that I definitely feel prior informed consent negotiations are very important.

What is that supposed to mean?

You don’t commercialize without checking with the community or culture from where you are taking this. Can I commercialize this? What should be the distribution? What is to be the contribution to access benefit sharing?

As I understand it the numbers we are talking about are 1-2% of the profits should be shared with these communities.

I don’t think anyone should fix that. The communities should have the right to fix it. There may also be a sacred part, for which there should be no commercialization. This is what happened with dragon’s blood, the Amazonian plant that healers use, that is patented. But the argument that won that case was that this is a healing plant for spiritual healers and you can’t commercialize it. Communities should have the right to say sorry it is a sacred plant you can’t commercialize it and if they say yes commercialize, then they should decide the sharing through a democratic allocation?

That will be complicated.

So what if it is complicated. The complication is being created by those who want to commercialize their knowledge rather than go through complicated processes, because life is going on, people are using the plants, they are using the seeds and the crops. It’s big commercial interests that are interfering in that process. They jolly well should go through a series of hard steps. Why should it be easy for them?