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SEPTEMBER, 1999

Mr. Mike Moore
Director General
World Trade Organisation
Centre William Rappard
Rue de Lausanne 154
Case postale
CH 1211 Geneve 21
Switzerland.


Dear Mr. Moore,

Sub.: BIOPIRACY AND WTO

India is a country which has centuries' old indigenous knowledge systems based on its rich biodiversity which the Indian people have conserved through their traditional lifestyles and local economies. Two-thirds of our population even today is directly dependent on the biological resources and the indigenous knowledge. These resources and knowledge are used in an ethic of sharing so that the livelihoods and needs of the poorest are met. This is in direct contradiction with the ethics (or the lack of it) perpetrated by the World Trade Organisation through the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs). TRIPs has globalised and legalised a perverse and unethical intellectual property rights system which encourages the piracy of our indigenous knowledge and subverts our decentralised democratic system.

India and its laws recognise the jurisdiction of local communities over the biodiversity in their area. As per the amendment in the Constitution of India, inserted by the Constitution (Seventy-third Amendment) Act, 1992, the Panchayati Raj system for decentralised democracy for the rural areas has been reinforced. As per a further Amendment in 1996 the Gram Sabha (the village community) is the highest competent authority to take decisions on natural resources at the grassroots' level. Our national government has also reiterated this by declaring the year 1999-2000 as the "Year of the Gram Sabha". 'rhe jurisdiction of the Gram Sabha on the biodiversity and the biodiversity-related knowledge are inalienable.

The Convention on Biological Diversity (CBD) too recognises the sovereign rights of the local communities. India has ratified CBD and endeavours to provide for the sovereign rights recognised therein. These rights over biodiversity and biodiversity-related knowledge are inalienable.

However, it is brought to your notice that these rights are infringed by the law and policy perpetrated by the WTO, especially the TRIPs. TRIPs is infringing on the Common Property Rights (CPRs) to biodiversity and biodiversity-related knowledge by recognising only the private property rights as enshrined in the culturally biased system of the Western industrialised states. TRIPs is enabling biopiracy. We enclose a short list of biopirates and how they have wrongfully claimed to have invented aml created knowledge that has been part of our culture and economy for centuries.

We wish to inform you that we will not allow you to take decisions on matters that fall exclusively within our jurisdiction through our decentralised democratic system. On the basis of our inalienable rights that are recognised by our Constitution and the CBD, we will not permit WTO to undermine our rights and protect those who steal our knowledge and our biodiversity.

According to the mandate of the WTO, TRIPs is to be reviewed this year. We ask you to immediately amend TRIPs and exclude biodiversity from your global IPR regime acknowledging our local rights to make laws and determine ownership and use patterns and to settle disputes.

As the competent authority, members of the following Gram Sablias, we expect you to report to us on:

a) Steps you are taking to amend the TRIPs.

b) What you are doing to appropriately revamp the DSM.

In particular we ask for the dispute of US-India to be reopened taking democratic decentralised rights into account. In any case we will be carrying out local public hearings to resolve these issues in bur own way at our level.

Anticipating your cooperation,

Yours truly,


Citizens of India and members of Gram Sabhas of villages:

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Biopiracy Patents Based on
Indigenous Knowledge of India

COMPANY	US Patent No.	Pirated Indigenous Knowledge Related to:
W. R. Grace 1750 Clint Moore Road Boca Raton, Florida, U.S.A. 33487-2707	[4556562] [4946681] [5124349] [5001146] [5405612] [5409708] [5411736] [5397571]	Neem (Hindi); Margosa Tree (Eng.); Azadirachta indica
RiceTec Inc. Schloss Vaduz FL-9490 Vaduz Liechtenstein	[5663484]	Basmati (Hindi & Eng.); Oryza sativa
Sabinsa Corporation 121 Ethel Road West, Unit #6 Piscataway, NJ 08854, USA	[5536506]	Kali Marich (Hindi); Black Pepper (Eng.); Piper nigrum
Calgene (Subsidiary of Monsanto Co) 800 North Lindbergh Boulevard St Louis, Missouri 63167, U.S.A	[5510255] [547991] [5494790] [5538868] [5475099] [5576428] [5558834]	Erand (Hindi); Castor (Eng.); Ricinus communis
Calgene (Subsidiary of Monsanto Co) 800 North Lindbergh Boulevard St Louis, Missouri 63167, U.S.A	[5463174] [5563058] [5512482] [5455167] [5420034]	Sarson (Hindi); Mustard (Eng.); Brsassica compestris
Pioneer Hi-hred/DuPont International Inc., Des Moines, IA, USA.	[5638637] [5625130] [5470359]	Sarson (Hindi); Mustard (Eng.); Brsassica compestris

Prepared by

Research Foundation for Science, Technology and Ecology
A - 60 Hauz Khas, New Delhi -110 016 - INDIA,
Tel: 91-11-696-8077   *   Fax: 91-11-685-6795
Email: vshiva@giasdl01.vsnl.net.in

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NOTICES SERVED TO BIOPIRATES


By the Jaiv Panchayat of

Village	:
P.O.	:
District	:
State	:
Date	:

To,
The CEO
W R. Grace & Co.,
1750, Clint Moore Road, Boca Raton,
Florida, U.S.A., 33487 - 2707.


Dear Sir,

Your corporation W R. Grace & Co., has pirated centuries of our indigenous knowledge and inventions by falsely claiming our collective, cumulative knowledge of Neem to be your invention in Patent Numbers US 4556562, US 4946681, US 5001146, US 5124349, US 5405612, US 5409708, US 5411736, US 5397571. These patents are illegal, unethical and immoral.

These patents violate our ethical fabric and ordre public since it treats the gifts from our venerated plants and our ancient knowledge systems as your creation and invention and hence your property. Our plants are sacred to us. Our plants are members of our extended Earth Family, Vasudhaiva Kutumbkam. Your patent is therefore unethical and immoral.

Your patents are also illegal and unjust because you have pirated and stolen our indigenous knowledge and claimed it as your invention.

Our Jaiv Panchayat, the local community structures, is the highest competent authority in matters related to the utilisation of biodiversity, including dispute settlement arising from misuse and abuse of our knowledge systems and resources. Our Jaiv Maha Panchayat herewith gives you notice of the cancellation of the Patent Numbers US 4556562, US 4946681, US 5001146, US 5124349, US 5405612, US 5409708, US 5411736, US 5397571 based on the piracy of our indigenous knowledge.

We also serve notice on you to present yourself before our Panchayat and to apologise to all the Indian people and seek forgiveness for your act of piracy and theft.

Please inform us immediately about when you will present yourself to the Dispute Settlement Panel of our Jaiv Panchayat.

Your failure to appear before our community will force us to launch a campaign to boycott all products of your company.

We hope that you will withdraw your patent immediately and avoid a trade war and cultural war that you have unleashed.

In Peace.

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NOTICES SERVED TO BIOPIRATES


By the Jaiv Panchayat of

Village	:
P.O.	:
District	:
State	:
Date	:

To,
The CEO
RiceTec Inc.
Schloss Vaduz
FL-9490 Vaduz
Liechtenstein

Dear Sir,

Your corporation RiceTec Inc., has pirated centuries of our indigenous knowledge and inventions by falsely claiming our collective, cumulative knowledge of Basmati to be your invention in Patent Number US 5663484.

This patent is illegal, unethical and immoral.

The patent violates our ethical fabric and ordre public since it treats the gifts from our venerated plants and our ancient knowledge systems as your creation and invention and hence your property. Our plants are sacred to us. Our plants are members of our extended Earth Family, Vasudhaiva Kutumbkam. Your patent is therefore unethical and immoral.

Your patent is also illegal and unjust because you have pirated and stolen our indigenous knowledge and claimed it as your invention.

Our Jaiv Panchayat, the local community structures, is the highest competent authority in matters related to the utilisation of biodiversity, including dispute settlement arising from misuse and abuse of our knowledge systems and resources. Our Jaiv Maha Panchayat herewith gives you notice of the cancellation of the Patent Number US 5663484 based on the piracy of our indigenous knowledge.

We also serve notice on you to present yourself before our Panchayat to apologise to all the Indian people and seek forgiveness for your act of piracy and theft. Please inform us immediately about when you will present yourself to the Dispute Settlement Panel of our Jaiv Panchayat.

Your failure to appear before our community will force us to launch a campaign to boycott all products of your company.

We hope that you will withdraw your patent immediately and avoid a trade war and cultural war that you have unleashed.

In Peace.

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W O R L D    T R A D E    0 R G A N I Z A T I O N

154 RUE DE LAUSANNE        1211 GENEVA 21        SWITZERLAND

TEL [41-22] 739 51 00       FAX [41-22] 739 54 60

MIKE MOORE

DIRECTOR-GENERAL

28 October 1999

Dear Citizens,

          I am responding to the large number of letters that were forwarded to me signed by certain citizens of India and Members of Gram Sabhas of Villages on the subject of biopiracy and the WTO.

          In responding, I would first like to thank you for bringing your concerns to my attention. I would also like to emphasize that the WTO, by which I mean both its 134 Member governments and the WTO Secretariat, is very conscious of the importance of the preservation of biodiversity and the contribution that the peoples of countries like India have made in this connection. However, I feel that your letter indicates some misunderstandings about the relationship of the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) to this matter.

          The TRIPS Agreement does not provide for the patentability of biological material in its natural state or for indigenous knowledge in the public domain. For something to be patentable, it has to be an invention, which includes meeting tests of novelty and inventive step. Thus a foreigner should not be able to obtain a patent, either in India or another country, for such subject-matter. If by mistake a patent is granted, it can be invalidated, as has indeed happened on several occasions. It should also be borne in mind that any patent granted in respect of an invention which uses genetic material only provides rights over the invention that has been made on that basis. It does not give rights over the underlying genetic material or traditional knowledge.

          Furthermore, it is important to recognize that the TRIPS Agreement allows Members to exclude from patentability many plant and animal inventions as well as inventions whose commercial exploitation is prevented on the grounds that they are contrary to public order or morality, including detrimental to health and the environment.

          Therefore, we do not believe that it is fair to suggest that the TRIPS Agreement is in conflict with the provisions of the Convention on Biological Diversity (CBD) which recognize the sovereign right of states over their biological resources and enshrine the principle of prior informed consent over access to genetic resources. The TRIPS Agreement does not address these matters and thus does not affect the freedom of governments to legislate on them in accordance with the provisions of the CBD, including by recognizing the jurisdiction of local communities over the biodiversity in their areas.

          I should note that in the work under way in the WTO, not only in connection with the review of Article 27.3(b) of the TRIPS Agreement to which you refer, but, also in the WTO Committee on Trade and Environment and in the preparatory process for the forthcoming Ministerial Conference of WTO Members at the end of this year, proposals have been made for the extension of WTO rules into the protection of biological diversity and traditional and indigenous knowledge.

          Since these are still proposals and have yet to be decided upon, I should say a word about the way decisions are taken in the WTO. Decisions are made on the basis of a consensus of all Members governments. Thus the decision to adopt the results of the Uruguay Round, including the TRIPS Agreement, was a consensus decision of the 125 governments participating in those negotiations, the majority of which were developing countries. The WTO now has 134 Member governments with a further 32 in the process of negotiating their accession to the WTO. WTO practice would call for any decisions on the proposals to which I have referred to be made on the basis of a consensus among these Member governments. You will appreciate from this highly democratic decision-making process that it is not the Director-General, of the WTO or the Secretariat of the WTO that can take decisions; this is the exclusive prerogative of Member governments acting collectively.

          I hope this information is of use to you.

Yours sincerely,

[signed]        

Mike Moore    

P.P.B.S.A.
Ranipatna
Balasore - 756001