United States Patents, Biopiracy, and Cultural Imperialism: The Theft of India's Traditional Knowledge
2019, Vol. 11 No. 10 | pg. 1/1
IN THIS ARTICLE
This article aims to present the biopiracy of traditional knowledge from India by the United States, which has occurred directly through the use of patent law and indirectly through economic power and cultural imperialism. Throughout this essay, I will analyze U.S. patent law, patent law cases where Indian traditional knowledge is being stolen, and the influence of U.S. Pharmaceutical Research and Manufacturers of America in India. Through lenses of economic power and cultural imperialism, I will examine how economic power and U.S notions of cultural imperialism have given the United States the agency to steal traditional knowledge through a lens of nationalism. Moreover, the initiatives and defensive tactics India has used to protect its own traditional knowledge will be discussed for its advantages and disadvantages. This paper emphasizes the importance of protecting traditional knowledge and how the U.S. can better work towards defending traditional knowledge from being stolen, rather than India having to defend itself.
For decades, patents have been employed to copyright ideas and technologies. Through the development of scientific advancements and a competitive capitalist environment in the US over time, patents have been granted for biological material, such as DNA and genes, but also plants, herbs, and spices. One of the requirements for a patent to be filed is that the idea or technology needs to be novel; however, there are many cases in which the patented ideas and technologies are not novel. For example, turmeric is commonly used as a wound healer or neem oil as a pesticide. For centuries, indigenous countries have traditionally used many products that have been recently patented by companies in the United States. Biopiracy of traditional knowledge from India by the United States has occurred directly through the use of patent law, and indirectly, through economic power and cultural imperialism. Through this paper, I contend that the United States uses cultural and economic power in order to warrant acts of biopiracy of traditional knowledge through patents and western research.Using a lens of nationalism, I will examine how the United States’s biopiracy of traditional knowledge occurs through patents and research. Furthermore, a lens of economic power will be utilized to analyze how the U.S. Pharmaceutical Research and Manufacturers of America (PhRMA) has influenced patent law and the use of traditional knowledge for economic gain. A case study between the United States and India will be used to track the development of the relationship of traditional knowledge and patent law over time in order to understand how and why traditional knowledge is being stolen by other western countries from indigenous nations. Discourse analysis of the current literature on traditional knowledge, patent law, and biopiracy and their intersections will be performed. Two bodies of literature will be used to provide support for the argument being made: the literature of activists making changes in the protection of traditional knowledge, and the body of literature that analyzes and studies patent law policy. The main focus will be understanding why the United States is stealing Indian traditional knowledge by analyzing controversial past patent law cases surrounding neem, turmeric, and basmati rice along with how U.S PhRMA has influenced patent law.
In broad terms, the United States and India will be used to encompass many aspects of these countries. This paper will analyze facets of these two countries and when using the terms “United States” and “India,” it does not refer to every aspect of them. When discussing the United States, I am focusing on the federal patent law and the affect and influence of U.S. PhRMA on the use and creation of patent law in India. Other corporations have also economically benefited from the use of stolen traditional knowledge, but pharmaceutical corporations have had the largest impact as seen through the lens of economic power. Throughout this essay, I will be discussing the larger context of cultural imperialism as part of my analysis. Other Western countries have stolen and continue to steal traditional knowledge from India. However, this specific case study can demonstrate how U.S cultural hegemony has led to controversial patent law cases and the U.S value of economic power has negatively influenced India. When discussing India, I am primarily focusing on the the stakeholders involved in traditional knowledge. Examples of these stakeholders are indigenous people who do not receive credit or financial compensation for the commodification of their ancestors’ traditional knowledge and the government of India that loses economic power due to stolen knowledge (Subbiah, 2004, p. 532).
Generally, there is no widely accepted definition for traditional knowledge. The World Intellectual Property Organization defines traditional knowledge as “knowledge, know-how, skills and practices that are developed, sustained and passed on from generation to generation within a community, often forming part of its cultural or spiritual identity” (“Traditional Knowledge,” n.d., para. 1). This defines parts of what traditional knowledge is, but it is not sufficient.
Throughout this paper, I will be using the definition of traditional knowledge as stated by Claudia Finetti who is a patent law lawyer, working to protect indigenous knowledge. Finetti states that traditional knowledge encompasses the culture of the indigenous community and is the “technical concepts derived from long-standing traditions, practices carried out in order to survive in a specific local environment and spiritual meanings and beliefs of the communities” (Finetti, 2011, p. 1). Traditional knowledge encompasses many different aspects of indigenous peoples’ knowledge and tradition, including not only written knowledge, but also knowledge passed down through oral history. This more comprehensive definition includes specific uses of certain plants and animals to cure illnesses, heal wounds, or predict future events. One important aspect of Finetti’s definition of traditional knowledge states that traditional knowledge does not mean old knowledge or knowledge from the past. Traditional, in this context, means based on tradition that has been shared over time, and is dynamic and changing knowledge based off of the indigenous people’s needs and wants. Lastly, Finetti’s definition of traditional knowledge situates traditional knowledge as a form of collective knowledge, belonging to all indigenous people (Finetti, 2011, p. 1).
Biopiracy of traditional Indian knowledge is enabled by U.S use of patent law and western research in order to claim the rights to traditional knowledge. I will be using John Reid’s definition of biopiracy which is specific to the case of traditional knowledge and patent law. It states that biopiracy occurs when “genetic resources and traditional knowledge is taken from biodiverse developing countries without permission.” Moreover, the stolen traditional knowledge is used to benefit the non-indigenous people through a patent or product with no compensation or gain received by the indigenous people (Reid, 2009, p. 79). Many researchers believe that the patenting of traditional knowledge is not biopiracy but is bioprospecting. Bioprospecting, a term developed by Walter Reid, is defined by “the exploration of biodiversity for commercially valuable genetic resources and biochemicals” (Reid, 1993 p. 5). This definition aims to reframe biopiracy in a way that justifies stealing traditional knowledge as unproblematic in Western countries, like the United States. Vandana Shiva, a scholar who has studied biopiracy, views bioprospecting as a euphemism for biopiracy. Also, Shiva notes that bioprospecting allows for patenting of traditional knowledge, but it inherently challenges the requirements for patent to be granted from a novel idea (Shiva, 2007, p. 307), revealing the inherent flaw of bioprospecting. I align with Shiva’s ideas on bioprospecting as a way for the U.S to warrant taking ideas from traditional knowledge. Bioprospecting equates to biopiracy.
"Stealing" Traditional Knowledge
The concept of “stealing” traditional knowledge may not be recognized since it is not always patentable nor recognized as intellectual property by the United States (Subbiah, 2004, p. 530). However, this should not be used as justification for Western researchers to utilize traditional knowledge for their own personal benefit. The legality of using traditional knowledge is murky and not well-defined since traditional knowledge is often not patented, so the U.S. does not recognize this as stealing. I work alongside the literature that defines the use of traditional knowledge by Western countries like the United States as “stealing.” Sumathi Subbahi and Efferth et al. both grapple with the legality of intellectual property since traditional knowledge is not considered intellectual property, and how this promotes biopiracy and piracy by western countries (2018, p. 9). The U.S. has stolen traditional knowledge, and even with stronger patent law in India, the U.S. continues to steal traditional knowledge through patents.
Furthermore, Matti Sarmela’s definition of cultural imperialism will be used. Cultural imperialism is the “economic, technological, and cultural hegemony of the industrialized nations, which determines the direction of both economic and social progress, defines cultural values, and standardizes the civilization and cultural environment throughout the world.” Sarmela argues that western culture dominates indigenous culture by stealing information through a process of cultural imperialism (Sarmela, 1979, p. 13). This paper will demonstrate how U.S. cultural imperialism is used to take advantage of India, giving the U.S the notion that they are entitled to Indian traditional knowledge. U.S cultural imperialism is used as justification to wrongfully steal knowledge.
The analysis in this paper will begin by discussing how U.S. PhRMA has oppressed India’s pharmaceutical business and influenced its patent laws solely to gain economic power. Then, the paper will explore how U.S. patent law disregards traditional knowledge by analyzing patent law cases between India and the United States for neem, turmeric and basmati rice. These patent law cases are examples of how U.S cultural imperialism and economic power influence patents and the usurpation of traditional knowledge. Lastly, the conclusion will examine how India has tried to protect its traditional knowledge from being stolen, and establish a call to action to help protect it in all countries where it is being stolen.
Pharmacy Patent Law
For many centuries, India had no pharmaceutical regulation or patent law. Healers and practitioners of medicine in ancient India did not want to “trademark” or “patent” their knowledge for profit. An example of this is a medical treatise, the Caraka-sahitā, originating from Ayurvedic medicine which is a system of medical practice that goes back thousands of years in India. The Caraka-sahitā states that those who practice medicine for the good of the people and not for profit are the only ones who achieve true fulfillment and happiness (Bannerjee, 2001, p. 146). India did not create international patent laws until they were colonized by the British. Under the British, there was still no established patent laws on agricultural or pharmaceutical products, making it easy for India to create inexpensive pharmaceuticals and compete in domestic and international markets. India did not have patents for pharmaceuticals because it allowed medicine to be low cost due to the large demand for medicine. Since India is a densely populated, generally highly impoverished country, Indian pharmaceutical businesses were able to replicate medicines and compete with lower prices by not having to go through the patent process (Bannerjee, 2001, p. 148). However, this also hurt U.S pharmaceutical business, which composed 10% of India’s pharmaceutical industry, since India could rapidly create products and not worry about copyright since pharmaceutical patents did not exist (Tomar, 1999, p. 583). U.S. PhRMA wanted more economic power in India and took political action to get it.
The United States forced India to create stricter patent laws on pharmaceuticals products so they could not out-compete U.S pharmaceutical industries. This was done by pressure and lobbying efforts from U.S. PhRMA on the World Trade Organization. In 1994, the World Trade Organization created the TRIPS (Trade-related Aspects of Intellectual Property Rights) agreement which called for the creation of patent law on pharmaceutical and agricultural products (Tomar, 1999, p. 579). India was forced to sign the TRIPS agreement as a member of the World Trade Organization. A ten year grace period was granted to implement the pharmaceutical and agricultural patent laws, and less time to implement other aspects of the TRIPs agreement. One minor technical aspect of the TRIPS agreement was not implemented by the deadline in India and in response, the United States filed a formal investigation into India for violating the TRIPS agreement (Tomar, 1999, p. 580). The U.S. put pressure on India to ensure that India implemented its patent system quickly and followed the TRIPS agreement as it led to economic profit and power for U.S PhRMA. The TRIPS agreement helped the United States garner economic power within India’s domestic market; it took money out of India’s economy and put it into the U.S economy, causing many Indian citizens to lose money and pharmaceutical jobs that were previously available (Barsh, 2001, p. 159). The full implementation of the TRIPS agreement in India caused an increase in drug prices and negatively affected impoverished Indian communities (Tomar, 1999, p. 582). Additionally, the increase in prices in medicines in India has led to higher mortality rates in the country (Umamaheswari & Prabu & Puratchikody, 2017, p. 1). As a result of the United States using patent law to subjugate and maintain their power over a weaker country such as India, it indirectly caused the death of many Indian people. U.S PhRMA chose economic power over the lives of impoverished Indian citizens.
U.S. PhRMA owes traditional knowledge much of their profits since many commercial products have been derived from traditional knowledge. Due to a push towards more natural medicines in the U.S., pharmaceutical companies began looking towards India’s natural remedies as potential sources for alternative medicines for those who could not afford allopathic medicine (Patwardhan & Vaidya & Chorgadhe, 2004, p. 791). U.S. PhRMA would send researchers to live in indigenous communities in an attempt to try to further research therapeutic plants with healing potential that indigenous people used. Also, these researchers would then do their own research on those plants in order to create and patent drugs based off of it (Patwardhan & Vaidya & Chorgadhe, 2004, p. 792). As a result of stealing traditional knowledge, U.S PhRMA has profited an upwards of 14 billion dollars annually. Also, research to create drugs and medicines have been based on traditional Indian Ayurvedic medicine (Patwardhan & Vaidya & Chorgadhe, 2004, p. 793). This, again, is stealing of traditional knowledge, but the U.S. believed they were not stealing because the traditional knowledge was not patented to begin with (Subbiah, 2004, p. 530). The United States is more concerned with earning large economic profits and justify their actions through cultural superiority.
U.S. Patent Law
U.S. patent law disregards traditional knowledge and does not make an attempt to ensure traditional knowledge is not stolen or protected. This can be seen in the novelty requirement of U.S. patent law, 35 U.S.C. section 102 (a), which states that “the invention was known or used by others in this country, or patented or described in a printed publication in this or a foreign country, before the invention thereof by the applicant for a patent” (Pre-AIA, 2013). This definition of “novel” for a patent, does not take into account the oral history that makes up a vast amount of traditional knowledge, or recorded but scientifically unpublished traditional knowledge.
To further this argument, the 1994 U.S. patent filed for a Neem tree oil pesticide can be referenced. The Neem tree has oils that are natural pesticides, and U.S scientists slightly modified it and patented it. Although this should not be patentable because the neem oil has always been used in India as a pesticide, India does not have patents for it as Indian patent law did not allow for patenting of agricultural inventions prior to the TRIPS agreement (Kadidal, 1997, p. 29). Due to this, the U.S did not recognize the traditional knowledge since it was not a “printed publication,” and allowed the patent to be approved. Instead of recognizing the traditional use of Neem tree oil that has been historically recorded in unpublished accounts, the U.S. approved the patent (Kadidal, 1997, p. 31). This allows traditional knowledge to be stolen and placed at a higher economic value to benefit the economy of the United States at the expense of India.
Another blatant case of misconduct from the U.S Patent and Trademark Office (PTO) arose from the turmeric patent that was granted to the University of Missouri in 1995 for wound healing. The patent application stated that turmeric has been used in India for wound healing for many years, but this product is novel due to recent “scientific credibility” from the scientific research done (Jaenchiang, 1996, p. 1). It was revoked after the Council of Scientific and Industrial Research of India filed for the patent to be reevaluated. Evidence to support traditional knowledge cited that turmeric has been used for wound healing as early as the 1950s by Indian researchers with some of those texts even cited in the initial turmeric patent application itself (Jaenchiang, 1996, p. 1) Considering that the patent application made direct reference to traditional knowledge by including citations from Indian researchers, the U.S PTO should have rejected it immediately. The approval of the patent shows the lack of protection being given to traditional knowledge in U.S. patent law, and how western research is valued more than previously published indigenous research or traditional knowledge. Also, this patent law case demonstrates how the U.S. PTO does not include historical records of traditional knowledge as “printed publications” causing many patents to be wrongly approved on the basis of being novel.
Lastly, I will discuss the 1994 patent law case on Basmati rice where a Texas based company, RiceTec, patented a hybrid strain of rice that was made to be similar to Basmati rice. The RiceTec patent was called “Basmati Rice Lines and Grains” (Subbahi, 2004, p. 550). For two decades before they filed this patent, RiceTec sold this rice under different names like “Kasmati” or “Texmati” as the American version of Basmati rice, indicating that profits from Basmati rice were made even before the patent was issued. The U.S. PTO passed the patent allowing RiceTec to sell “basmati rice” that is the same product as Indian basmati rice. It did not block Indian basmati rice from being sold in U.S. markets, but now provided direct competition and a loss of profit for Indian business. Four years later, the Indian government took action to fight the patent saying it was threatening the livelihood of India’s farmers. To do so, India had to prove that all of the farming techniques used by RiceTec were techniques already used in India and, therefore, were not novel. When the U.S. PTO reinvestigated the patent, they only rejected parts of it, allowing RiceTec to still have multiple lines of their rice on the market (Subbahi, 2004, p. 553). This case shows how even after India tried to fight a case of stolen traditional knowledge, the United States did not fully recognize it and allowed the patent to still be maintained at the economic cost of Indian farmers. Also, this patent law case demonstrates how the United States values the economic power of patents more so than the value of novel patents. Moreover, the case shows that even with pressure from the Indian government, U.S, power and cultural hegemony lead to little to no qualms about India’s retaliation after the outcome of the case was finalized. The U.S knows they are powerful and uses their cultural hegemony to maintain dominance over India.
The TRIPs agreement was signed in 1994, requiring India to implement patent law on all agricultural and pharmaceutical products. All three of the cases presented took place in 1994 and 1995, and there were many other controversial patent cases around this same time period. I hypothesize that these U.S. companies and institutions patented certain agricultural and pharmaceutical products before India could have established official patents on them after signing the TRIPs agreement. This would ensure that U.S. businesses would have rights over the products and bar India from being able to patent the products and compete in U.S. markets. This would hurt Indian business in international markets while bolstering U.S business. These U.S institutions saw an opportunity to steal Indian traditional knowledge and use it to hurt India’s economy while profiting from it clearly showing the importance of economic power for the U.S..
India’s Protections on Traditional Knowledge
India has implemented defenses to protect its traditional knowledge from being stolen by the United States. After many failed patent law battles, India needed to protect their traditional knowledge from the U.S.. Rightfully, India had several reasons to want to protect their traditional knowledge: to be able to accept or deny request to use traditional knowledge, to share in the monetary benefits of outsiders profiting off of traditional knowledge, and to prevent biopiracy of it. Therefore, India developed its own legislative policy and administrative techniques in order to protect its traditional knowledge.
One legislative policy that the Indian government implemented was the National Biodiversity Authority (NBA) in order to protect biological resources. A majority of the traditional knowledge that is stolen in India is biological, leading to the main argument of biopiracy of traditional knowledge. This act regulates foreign access to India’s biological resources, and requires explicit permission to be given for India’s biological resources to be used. Although this is an improvement in protecting traditional knowledge, this establishment of NBA only covers the biological resources that can only be found in India (Javed, 2016, p. 4). Research and patents can still be made on many products that originated in India and are now found in countries over the world, like turmeric. Another policy initiative India created was the People’s Biodiversity Registers, where Indian citizens can report biological data and traditional knowledge to the NBA to create a robust database of traditional Indian knowledge (Javed, 2016, p. 5). Again, this is a great way to store traditional knowledge of current biological traditional knowledge and resources within India, but fails to protect all traditional knowledge from India’s past. Moreover, knowledge that is outside of the biological category, reported in oral history, or for products found outside of India are not protected under this policy.
The most success India has had for protecting its traditional knowledge was with the formation of the Traditional Knowledge Digital Library (TKDL). The TKDL is a vast database that contains traditional knowledge from over 100,000 primary sources spanning centuries. The project began in 1996, after several patent law cases arose concurrently with the signing of the TRIPS agreement. The TKDL was not released to other Western patent offices until 2009 when it was functional. The database is available in many different Indian languages, and also available in English and other European languages in order to ensure that the countries responsible for stealing traditional knowledge can read the database (Chakravarty, 2010, p. 295). When it comes to patent protection, the main issue with the TKDL is that Western countries do not have to use it when approving patents; however, the Indian government can use it in order to disprove U.S patents. The United States could still make it an expensive, long legal battle, and then not fully repeal the patent like seen in the RiceTec patent law case. Currently, the TKDL is the most comprehensive protection of Indian traditional knowledge, but it took over a decade to create and establish it and required much funding (Chakravarty, 2010, p. 297). In contrast, the United States during this same time period did not alter the stringency of their patent laws in order to protect traditional knowledge, continuing to earn profits over stolen traditional knowledge. Until an international mandate or international law is established to protect traditional knowledge in which all participating countries must sign, it will be difficult to enforce the protection of traditional knowledge in western countries.
Through use of cultural imperialism and economic power, the United States warranted the biopiracy of traditional knowledge in India through patent laws. Through the economic power of large pharmaceutical corporations and their desire for more consolidation of economic power, India was forced to change their own patent law at the expense of their citizen’s health. United States patent law does not adequately protect traditional knowledge through the actual wording of its patent law. The three cases of mis-approvals of patent law analyzed in this paper have shown the theft of traditional knowledge that, in some cases, were not fully repealed after India intervened.
United States businesses and corporations like United States Pharmaceutical Research and Manufacturers of America fund researchers to go to India to learn from and then steal traditional knowledge in order to publish as their own research for economic gain. Traditional knowledge does not exist in the eyes of the U.S. cultural hegemony. More so than the individual researchers, it is the larger institutions funding Western researchers that cause this pressure to patent. In the future, interviews with the researchers that tried to patent turmeric, neem, and basmati rice should be done to question and understand the intentions and timing of the patent submissions after the signing of the TRIPS agreement. Doing this could potentially give more information about the intentions of the researchers and whether pressure was put on by larger institutions that were funding this research to patent quickly to beat India in patenting traditional knowledge. Furthermore, this extend the argument that the economic power and cultural hegemony of the U.S. to steal traditional knowledge was delievered by specific institutions outside of U.S PhRMA.
Although, I think it is important that traditional knowledge medicines are studied scientifically for their efficacy and healing properties, I believe it is up to the country that owns the knowledge to do so. Efferth et al. introduces a concept called “One World Medicine” that brings together Western medicine and traditional medicine stating that they do not need to be mutually exclusive. This concept will help to provide cheaper traditional medicines to be distributed and used for treatment in poorer communities that may not be able to afford Western medicines combined with the scientific reliability of its health benefits (Efferth et al., 2018, p. 19). U.S PhRMA is taking cheaper traditional medicines and repackaging them at much higher prices and branding these medicines as new, natural Western medicines. (Patwardhan & Vaidya & Chorgadhe, 2004, p. 793) This is only going to hurt the poorer nations and people that only can survive off of traditional knowledge medicines. The biopiracy of traditional knowledge will continue to lead to higher mortality rates in the lower socioeconomic classes of poorer indigenous countries with influence from U.S PhRMA in indigenous countries throughout the world if there is no intervention.
The United States knows they can get away with stealing traditional knowledge without any major repercussions and continue to do so. Along with that, U.S. PhRMA has more interest in the economic profit gained from the products and patents created from traditional knowledge then in sharing and protecting the knowledge itself. India has put in protections to try and curb this biopiracy of traditional knowledge, but until international law is put in place, there will be ongoing theft of traditional knowledge. The WTO needs to create an agreement that enforces the protection of all types of traditional knowledge. They can do this by mandating that traditional knowledge is intellectual property and can not be stolen and used. They can put in further policy that aides indigenous countries in the protection of traditional knowledge by making traditional knowledge a recognized form of knowledge in patent law. Lastly, it should not be India’s responsibility to try and protect its traditional knowledge from other countries, but should be the responsibility of the United States not to steal from India. The United States, itself, along with many other Western countries should implement policy in its patent law to respect the culture of traditional knowledge and to bring back the idea of true novelty.
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