The issues and challenges surrounding the commercialization of traditional knowledge in many developing countries have been overlooked in many types of research that have been conducted about laws governing intellectual property rights. It is worth noting that many people who have a lot of knowledge for instance in the production of pharmaceuticals have faced challenges related to difficulties in applying for intellectual property rights as well as challenges posed by an unfavorable commercial environment. In other cases, certain big companies with an established market base have taken the advantage of nonstringent intellectual property rights laws to obtain patents without considering the moral implications of such actions on the indigenous people.
Consequently, the indigenous people who have prior knowledge of applications of certain natural resources are left without the power to claim such kinds of illegalities. The goal of this paper is to discuss whether the acquisition of the Neemix patent by W.R. Grace & Co. amounts to biopiracy. In this regard, the paper will focus on the moral implications of this action by discussing the history of how neem was developed at Grace resulting in the application of the patent and the protest that followed the issuance of the patent. To justify the legitimacy or illegitimacy of the patent, the paper will also explain the conditions and procedures which need to be followed in issuing patents to companies as per the established laws in the United States.
The current trend in the pharmaceutical industry is a concern for Indigenous Peoples particularly bearing in mind that big corporations are targeting to form collaborations with developing countries to search for certain profitable natural resources particularly plants. Most of these materials have medicinal value and these corporations bring them into their research laboratories and come up with certain useful pharmaceuticals. The reason behind this cooperation with the indigenous Peoples is to utilize their cultural knowledge of the resources of interest after which they patent the biological material as their invention.
Biopiracy is the illegitimate appropriation of biological resources
This illegitimate appropriation of biological resources including microorganisms, animals, plants, and even humans as well as the associated cultural knowledge is referred to as biopiracy (DeGeer). This kind of appropriation is illegitimate because it is done without recognizing the international conventions as well as domestic laws where they are present. The most widely known case in point relating to biopiracy issues is the patenting of Neemix by W.R. Grace & Co. The source of this natural biopesticide is the neem tree whose use in India is deep-rooted for more than 1,000 years (H and Kristi).
The usefulness of neem in the Indian culture
The role which neem has played in Indian culture can therefore be traced thousands of years and has formed a central part of the agricultural and medicinal practices in India throughout history. Neem has been extensively used to cure several illnesses by medicine practitioners such as the Ayurvedic doctors while Hindus have used it over the years in their annual religious celebrations. Cleaning of teeth by chewing the twigs of the neem tree have compensated for the inability of the poor to afford toothbrush and toothpaste.
It has also been used by the indigenous Indians for the treatment of skin disorders such as leprosy and acne as well as used in the manufacture of soaps for its antiseptic properties. As a way of fighting insect pests, village centers in India have been planted with neem trees. Scattering of neem leaves in grain bins, closets, and food bins repulse pests for as long as several months. In addition, farmers fight pests present in the soil and those on crops using neem emulsion and neem cake. The growing interest in neem among pharmaceutical companies in Europe and the United States can be attributed to these pesticide qualities seen in neem (Donaldson and Werhane).
Controversies surrounding Neemix patent
The patenting of Neemix has elicited controversy based on the requirements of the patent laws of the United States. Under these laws, an invention that qualifies for patenting must meet certain criteria. Firstly, it has to be unique concerning any previous knowledge on a specific aspect or subject matter. This implies that it need not be obvious to someone with basic skills in the art involved at the time of invention. In addition, it has to possess significant uses. The other condition is about the first one in that a patent can be denied despite the difference in the recently known concepts and the prior knowledge if this difference is so small to prevent someone with an ordinary knowledge level from understanding the subject matter. A patent can also be denied on materials that occur naturally if no modifications have been done on them. Finally, a patent cannot be granted if there has been a printed publication either in the U.S or in other countries just before the invention. Similarly, if a description of the invention has been made through print elsewhere or in the U.S within a period exceeding one year before the patent application, a patent cannot be granted (DeGeer).
The opposition against the Neemix patent by different groups led by the Foundation on Economic Trends (FET) can be explained on several critical considerations relating to the prevailing circumstances at the time and the conditions under which it was issued. The two major issues of concern are about the three requirements by the patenting laws in that two of them appear to be absent in the case of the Neemix patent application and therefore the action qualifies as illegitimate from a legal perspective. These requirements regarding the novelty about prior art as well as knowledge being obvious to someone with basic knowledge of the subject matter.
In this regard, prior knowledge about neem and its applications such as those involving its excellent pesticidal and fungicidal qualities were widely known way before the patent application and this can be understood as prior art (Chawla 482). However, this requirement was not applied in the case of W.R. Grace which therefore qualifies as a breach of the laws governing patenting in the United States. This is especially true considering that the only modification that W.R. Grace did on neem was actually to increase the shelf life from the few weeks traditionally achieved to about two years. Bearing in mind the immense knowledge that the Indigenous People had accumulated throughout history, it is justifiable to point out that this improvement is outweighed by the value of this prior knowledge. In addition, the extraction techniques applied by the company to achieve this modification had been widely applied before the patent had been issued beside them having been described via print (DeGeer).
Moral and legal standpoints concerning Neemix patent
Of greater concern are the moral implications of Neemix patent on the indigenous people of India who possess the important cultural knowledge about neem. The huge amount of knowledge about neem accumulated from generation to generation gave massive insights as to the practical applications of neem. This knowledge had been developed through research which called for different people in India to invest time and resources to discover the useful qualities of neem. By the act of granting W.R. Grace the Neemix patent, it qualifies as an act of biopiracy because it is an appropriation of cultural knowledge. The situation is even made worse by the fact that no compensation was given to the indigenous people for this appropriation. Such sentiments were expressed at the time of protest against the patent by the president of Foundations on Economic Trends, Jeremy Rifkin who thought that indigenous people ought to be compensated when commercial products are generated from the long-built traditional knowledge (DeGeer).
Moreover, the general trend of various companies from the West appropriating the natural resources in developing countries in the guise of scientific research is not morally right since it is a violation of what is rightfully theirs. The escalating trend is a cause for alarm since it depicts colonialism that is new and meant to suppress the economic capacity of the developing nations while these multinational companies flourish in their trade. Considering that the indigenous people of India had lived with the knowledge about neem for so long only to be ignored by patenting of a foreign company is a clear intention of overlooking what cannot in any way be denied. The Neemix patent can be perceived as an obvious one because concoctions that could be stored in a stable form had already been discovered by Indians long before W.R. Grace & Co. claimed a chemical modification of their biopesticide Neemix (Marden).
The perpetual disregard for indigenous knowledge is also demonstrated in the way it is regarded as folk medicine by the vice president of W.R. Grace & Co. In addition, it is also morally wrong to describe this company as the first biopesticide facility in the world while it is within the public domain that cottage industries in India such as Village Industries and the Organization Khadi have been in the business for more than four decades. Various specialists in India have been making great progress over the years about the processing and applications of neem (DeGeer).
The Neemix patent would also pose a great economic threat to the farmers in India who for many years have been relying on neem as a source of income. This is because Grace would have a very high demand for neem seeds which would mean a shortage of these seeds to the poor farmers as a result of the increased prices of the seeds making them unaffordable to farmers. In addition, India as a member nation to the General Agreement on Tariffs and Trade would be compelled under the requirements of this agreement to alter its patenting laws to be commensurate with those of the West. This would give W.R. Grace & Co. superiority over the indigenous users of neem who would have to pay the company for using neem as a pesticide (Donaldson and Werhane).
The issue of legal constraints within the patenting law in India incapacitated Indian farmers from filling for a patent. There is general opposition to patenting that involves agricultural products which the law also has prohibited in addition to the belief that nature cannot be owned. These feelings are made more strong by the fact that neem has been of great significance in the lives of all Indians in both cultural and religious aspects. Therefore, the patenting of neem by W.R. Grace & Co. from the Indian perspective was a violation of ethics and moral beliefs about nature. Furthermore, nature and the resources thereof are not meant to be privatized by merely coming up with modified versions of certain substances but are meant for the benefit of the whole community. Therefore, the Neemix patent granted to W.R. Grace & Co. not only amounts to biopiracy but also is a violation from a moral, ethical and philosophical standpoint as well as goes against the Convention on Biological Diversity as one that endeavors in sustaining global biological diversity (Bennett 80).
One of the requirements entrenched in the laws which can result in a patent being denied is the lack of any publications in the United States or elsewhere on the invention or the methods involved in the invention. It is worth noting that Grace and Co. obtained the Neemix patent even with the knowledge of the fact that description on the effectiveness of neem seeds as a pesticide had already been established in the late 1920s by Indian specialists. There had also been several important types of research on neem conducted in the 1960s in which researchers at the Indian Agricultural Research Institute confirmed different qualities of neem including the potential to function as an insect repellant as well as a good insecticide (Donaldson and Werhane).
All these activities happened a decade before Grace and Larson had made any such efforts. The lack of more information on research done on neem by scientists in the form of print can be attributed to the fact that these contributions were being made by individuals over prolonged periods. Thus, elaborate documentation and producing the same in print was a difficult task though evidence of these milestone discoveries was there. Therefore, the company’s action of pointing to the lack of formal publications is pushing the villagers to produce what is untenable (Donaldson and Werhane).
It is important to note that, how the issuance of the Neemix patent was done amounted to the total disregard of the contribution made by the prior knowledge of the indigenous people. It also did not consider the long history and significance of neem in the Indian culture as the major source of neem. The absence of any strategy for compensation due to the appropriated cultural knowledge shows that the objective of the issues surrounding the Neemix patent was to accumulate profits and ignore the massive efforts invested by Indians in the major discoveries towards improving the usefulness of neem. Therefore, there is the need to re-examine the laws governing the issuance of patents in the United States to make them more elaborate and comprehensive as well as be applied to the letter without giving room for compromise. As per the Neemix patent, W.R. Grace & Co. stands out as guilty of establishing the patent.
The commercialization of traditional knowledge particularly regarding biological resources in developing countries has been faced with serious challenges. The challenges are largely attributable to weak laws governing Intellectual Property Rights. The case of the Neemix patent shows an element of biopiracy since it amounts to appropriation of the cultural knowledge about neem. The Indian culture has for many years used neem in different aspects including religious purposes. In addition, the knowledge of its various applications has accumulated over years. Therefore, the patenting of Neemix was done without considering the implications it would have on the cultural and religious practices of the Indian people. The lack of a compensation policy accompanying this patent is a further indication of the disregard the company has for the significance of cultural knowledge.
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