Case of ‘Sea-Buckthorn’ of Leh:

Sujatha Padmnabhan (The Hindu, October 4, 2003) reports story of Sea-Buckthorn, a plant found in Ladakh and locally known as ‘Tserma’ or ‘Jadoo paudha’, the fruits are used to prepare juice. Botanically known as Hippophae rhamnoides is nitrogen fixing shrub, which has frankia an actinomycetes fungi. During 1990, the local women formed cooperative and started preparing and selling the fruit juice under the name ‘Tsetalulu’ of course in local market. After about ten years, a Delhi based company called Ladakh Foods (www.ladakhfoods.com) on the basis of DRDO refined technology started the production of tetra pack juice under the name of ‘Leh Berry’. The same kind of juice sold by the China to the tune of Rs 17, 000 crore annually. It raises some questions,

1. The traditional knowledge of local community formed the basis of commercial application of the technology refined by research institute.
2. Benefit sharing must not be ignored, and accrued benefits shall be used for conservation and sustainable development of biological diversity.
3. Established of factory and commercial ruined the local community especially women group. The fear of unlimited exploitation may lead to loss of plant species, prevailing in the minds of local people in not baseless.
   

Biopiracy And Biodiversity
Indian cases
Turmeric

In 1997, the Indian government's Council of Scientific and Industrial Research (CSIR) scored a victory when it succeeded in convincing the US Patent and Trademark Office to revoke a patent granted to two US scientists on the use of turmeric powder as a healing agent. But the CSIR did not win its case just by claiming traditional wisdom. It had to produce written documentation. It resorted to ancient Sanskrit texts and a paper published in 1953 in the Journal of the Indian Medical Association.

Rice

The Texas company, RiceTec, Inc. for example, sells US grown rice as "Texmati" as "American basmati" and "jasmati" as "American Jasmine.' Basmati is grown in India and Pakistan and Jasmine is grown in Thailand. Agricultural and Processed Food Products Export Development Authority (APEDA), filed for revocation of the patents granted in September 1997 to Rice Tec by the US Patent Office (USPTO). Later Rice Tec withdrew four (specific to characteristics of grain) out of 20 claims.

Neem

European patent office revoked the patent of fungicide based on neem, it was challenged by Dr Vandana Shiva and other groups. But a company patented the neem based chemicals in USA as in the United States, prior existing knowledge to deny a patent is accepted in terms of publication in any journal, but not of knowledge known and available in oral or folk traditions.
In 1971, US timber importer Robert Larson observed the tree's usefulness in India and began importing neem seed to his company headquarters in Wisconsin. Over the next decade he conducted safety and performance tests upon a pesticidal neem extract called Margosan-O and in 1985 received clearance for the product from the US Environmental Protection Agency (EPA). Three years later he sold the patent for the product to the multinational chemical corporation, W R Grace and Co. Since 1985, over a dozen US patents have been taken out by US and Japanese firms on formulae for stable neem-based solutions and emulsions and even for a neem-based toothpaste. At least four of these are owned by W R Grace, three by another US company, the Native Plant Institute, and two by the Japanese Terumo Corporation.

Zimbabwe case

The US patent 5’929,124 on anti-microbial diterpenes (according to the report in SEATINI) was granted to Kurt Hostettmann, professor at the University of Lausanne. The patented invention relies on traditional knowledge from Zimbabwe and on the root of the tree “Swartzia madagascariensis”, found throughout tropical Africa. The CBD, to which both Zimbabwe and Switzerland are parties, states that “access to genetic resources shall be subject to prior informed consent (PIC) of the contracting party providing such resources ...” The concerned stakeholders (traditional healers, local communities, the state of Zimbabwe) were not given any of this information before the University of Lausanne gained access to genetic resources and traditional knowledge.

Tropical rain forest (Amazon)

Andiroba

The Andiroba tree (Carapa guianensis Aubl.) grows up to 25 meters. It's seeds supply a yellowish oil with medicinal and insect-repelling properties. The traditional method to produce the oil is to collect the seeds from rivers where they float after being shed by the tree. They are then boiled and left for some two weeks until they have rotted. Finally they are squeezed in a simple press known as a tipiti to extract oil and fatty solids. A mixture of Andiroba oil and Urucum color is used by the indigenous populations as repellent and as a treatment against parasites. Patented by companies from France, US, Japan in 1999, while published literature available back in 1984.

Copaiba

Copaiba oil or balm is extracted from the Copaiba tree (Copaifera sp) by drilling holes in the trunk of the tree. The traditional medicine in Brazil recommends Copaiba oil as an anti-inflammatory agent, for treatment of dandruff, all kinds of skin disorders and for stomach ulcers. Copaiba also has diuretic, expectorant, disinfecting and stimulating properties, and is being utilized in the treatment of bronchitis, sore throat, psoriasis, against parasites and as a contraceptive. Patented by companies at France, USA, WIPO and Japan

Ayahuasca (Vine of Soul)

For innumerous generations, shamans of indigenous tribes in the western Amazon Basin have processed the plant Banisteriopsis caapi to produce a ceremonial drink known as "ayahuasca". The shamans use ayahuasca (which means "vine of the soul") in religious and healing ceremonies to diagnose and treat illnesses, meet with spirits, and divine the future. An American, Loren Miller obtained a US Patent in June 1986, granting him rights over an alleged variety of B. caapi he had called "Da Vine". The patent description states that the "plant was discovered growing in a domestic garden in the Amazon rainforest of South America." The patentee claimed that Da Vine represented a new and distinct variety of B. caapi, primarily because of the flower color. The community came to know about patent in 1994. the USPTO cancelled patent in 1998 and later revoked it in 2001 due to change in rules.

Philippines case:

“At least one tree with cancer-curing potential, four native vegetables, one snail which produces the most effective pain killer, an antibiotic soil fungus, one fruit tree and several rice varieties, have been stolen, and are now owned by foreign pharmaceutical firms,” said Environment Secretary Antonio Cerilles. Philippine snail (Conus magnus) is now owned by Neurex Inc., a US transnational pharmaceutical firm, reportedly with the help of scientists from the University of the Philippines - Marine Science Institute and the University of Utah. The Philippine yew (Taxus matrana), reported to have great potential in treating cancer, was uprooted from a national park in Mount Pulag, Benguet. Its patenting was “made possible” by researchers from the University of Massachusetts.

Conclusion

From the above discussion it can be concluded that protection of biodiversity through administrative and legislative measures is most important. The provisions in such measures must be internationally binding; the scope of protection of rights outside the WTO will not be much effective. Effective measures at global level must ensure the equity in benefit sharing at community level, the shared benefits will become important component in in-situ and ex-situ means of conservation of biological diversity.

At the international clear-cut division is prevailing with respect to use, patenting and protection of biological diversity. Developing vs developed nations, and even conflicts between developed nations are also very well reflected in various forums. The conflicts and differences must be resolved in such a manner that biological diversity is protected in a dignified manner.