The Issue
The United States and India are currently involved in a biopiracy dispute over the rights to a
tree indigenous to the Indian subcontinent, the neem tree. While the neem tree has been used in India for over 2000 years for various purposes such as pesticides, spermicides and toothbrushes, a US company has been suing Indian companies for producing the emulsion because they have a patent on the process. The dispute is over the rights of companies to conduct research and development by using patents against the interest of the people who live at the source of the resource. To what extent can multinational companies claim and patent resources from the develping countries, like India? The movement around the issue of the neem tree and trade-related aspects of intellectual property rights (TRIPS) represents a challenge to the developing countries.
Case Study
A classic case of biopiracy by transnational corporations is that of the neem tree in India. Vandana Shiva provides the background to this attempt to appropriate an invaluable biological resource of the South.
DURING 1994, Indian farmers staged one mass demonstration after another against the proposed GATT Uruguay Round agreement. In March about 200,000 gathered in Delhi demanding, among other things, that the draft treaty - known colloquailly as 'the Dunkel draft' after chief negotiator, Arthur Dunkel - should be translated into all Indian languages. On 2 October, about half a million converged upon Bangalore to voice their fears about the impending legislation, aware of the threat that GATT poses to their livelihoods, by allowing multinational organisations to enter Third World markets at their expense.
In particular, many of them began to question the Dunkel Draft's call for an international harmonisation of property rights legislation. In their demonstrations, protesters carried twigs or branches of neem, a tree found throughout the drier areas of India.
Several extracts of neem have recently been patented by US companies, and many farmers are incensed at what they regard as intellectual piracy. The village neem tree has become a symbol of Indian indigenous knowledge, and of resistance against companies, which would expropriate this knowledge for their own profit.
A tree for all seasons
Of all the plants that have proved useful to humanity, a few are distinguished by astonishing versatility. The coconut palm is one, bamboo another. In the more arid areas of India, this distinction is held by a hardy, fast-growing evergreen of up to 20 metres in height - Azadirachta indica, commonly known as the neem tree.
The neem's many virtues are to a large degree attributable to its chemical constituents. From its roots to its spreading crown, the tree contains a number of potent compounds, notably a chemical found in its seeds named azadirachtin. It is this astringency that makes it useful in so many fields.
Medicine
Neem is mentioned in many ancient texts and traditional Indian medical authorities place it at the pinnacle of their pharmacopeia. The bark, leaves, flowers, seeds and fruit pulp are used to treat a wide range of diseases and complaints ranging from leprosy and diabetes to ulcers, skin disorders and constipation.
Agriculture
The Upavanavinod, an ancient Sanskrit treatise dealing with forestry and agriculture, cites neem as a cure for ailing soils, plants and livestock. Neem cake, the residue from the seeds after oil extraction, is fed to livestock and poultry, while its leaves increase soil fertility. Most importantly, neem is a potent insecticide, effective against about 200 insects, including locusts, brown plant-hoppers, nematodes, mosquito larvae, Colorado beetles and boll weevils.
These properties, and others, known to Indians for millennia, have led to the tree's being called in Sanskrit Sarva Roga Nivarini, the curer of all ailments', or in the Muslim tradition, Shajar-e-Mubarak, the blessed tree'. Access to its various products has been free or cheap: there are some 14 million neem trees in India and the age-old village techniques for extracting the seed oil and pesticidal emulsions do not require expensive equipment. A large number of different medicinal compounds based upon neem are commonly available.
In the last 70 years, there has been considerable research upon the properties of neem carried in institutes ranging from the Indian Agricultural Research Institute and the Malaria Research Centre to the Tata Energy Research Institute and the Khadi and Village Industries Commission (KVIC). Much of this research was fostered by Gandhian movements, such as the Boycott of Foreign Goods movement, which encouraged the development and manufacture of local Indian products.
A number of neem-based commercial products, including pesticides, medicines and cosmetics, have come on the market in recent years, some of them produced in the small-scale sector under the banner of the KVIC, others by medium-sized laboratories. However, there has been no attempt to acquire proprietary ownership of formulae, since, under Indian law, agricultural and medicinal products are not patentable.
Patent appeal
For centuries the Western world ignored the neem tree and its properties: the practices of Indian peasants and doctors were not deemed worthy of attention by the majority of British, French and Portuguese colonialists. However, in the last few years, growing opposition to chemical products in the West in particular to pesticides, has led to a sudden enthusiasm for the pharmaceutical properties of neem.
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.Having garnered their patents and with the prospect of a licence from the EPA, Grace has set about manufacturing and commercialising their product by establishing a base in India. The company approached several Indian manufacturers with proposals to buy up their technology or to convince them to stop producing value-added products and instead supply the company with raw material.
In many cases, Grace met a rebuff. M N Sukhatme, Director of Herringer Bright Chemicals Pvt. Ltd, which manufactures the neem-based insecticide Indiara, was put under pressure by Grace to sell the technology for a storage-stable neem extract, which does not require heating or any chemical change. Sukhatme refused their offers, stating: 'I am not interested to commercialise the product.'
But Grace eventually managed to arrange a joint venture with a firm called P J Margo Pvt. Ltd. They are now setting up a plant in India which will process neem seed for export to the US. Initially, the plant will process 20 tons of seed a day. They are also setting up a network of neem seed suppliers, to ensure a constant supply of the seeds and a reliable price. Grace is likely to be followed by other patent-holding companies. In 1992, the US National Research Council published a report designed to 'open up the Western world's corporate eyes to the seemingly endless variety of products the tree might offer'.
According to one of the members of the NRC panel, 'In this day and age, when we're not very happy about synthetic pesticides, [neem] has great appeal.'
This appeal is blatantly commercial. The US pesticides market is worth about $2 billion. At the moment biopesticides, such as pyrethrum, together with their synthetic mimics, constitute about $450 million of this, but that figure is expected to rise to over $800 million by 1998. 'Squeezing bucks out of the neem ought to be relatively easy,' observes Science magazine.
Plagiarism or innovation?
Grace's aggressive interest in Indian neem production has provoked a chorus of objections from Indian scientists, farmers and political activists, who assert that multinational companies have no right to expropriate the fruit of centuries of indigenous experimentation and several decades of Indian scientific research. This has stimulated a bitter transcontinental debate about the ethics of intellectual property and patent rights.
In April 1993, a Congressional Research Service (CRS) report to US Congress set out some of the arguments used to justify patenting:
'Azadirachtin itself is a natural product found in the seeds of the neem tree and it is the significant active component. There is no patent on it, perhaps because everyone recognises it as a product of nature. But ... a synthetic form of a naturally occurring compound may be patentable, because the synthetic form is not technically a product of nature, and the process by which the compound is synthesised may be patentable.'
However, neither azadirachtin, a relatively complex chemical, nor any of the other active principles have yet been synthesised in laboratories. The existing patents apply only to methods of extracting the natural chemical in the form of a stable emulsion or solution, methods which are simply an extension of the traditional processes used for millennia for making neem-based products. The biologically active polar chemicals can be extracted using technology already available to villages in developing countries, says Eugene Schulz, chair of the NRC panel. Villagers smash'em [the seeds] up, soak [them] in cold water overnight, scoop the emulsion off the top and throw it on the crops.'
W R Grace's justification for patents, therefore, pivots on the claim that these modernised extraction processes constitute a genuine innovation:
'Although traditional knowledge inspired the research and development that led to these patented compositions and processes, they were considered sufficiently novel and different from the original product of nature and the traditional method of use to be patentable.'
'Azadirachtin, which was being destroyed during conventional processing of Neem Oil/Neem Cake is being additionally extracted in the form of Water Soluble Neem Extract and hence it is an add-on rather than a substitute to the current neem industry in India.'
In short, the processes are supposedly novel and an advance on Indian techniques. However, this novelty exists mainly in the context of the ignorance of the West. Over the 2,000 years that neem-based biopesticides and medicines have been used in India, many complex processes were developed to make them available for specific use, though the active ingredients were not given Latinised scientific names. Common knowledge and common use of neem was one of the primary reasons given by the Indian Central Insecticide Board for not registering neem products under the Insecticides Act, 1968. The Board argued that neem materials had been in extensive use in India for various purposes since time immemorial, without any known deleterious effects. The US EPA, on the other hand, does not accept the validity of traditional knowledge and has imposed a full series of safety tests upon Margosan-O.
The allegation that azadirachtin was being destroyed during traditional processing is inaccurate. The extracts were subject to degradation, but this was not a problem since farmers put such extracts to use as and when they needed them. The problem of stabilisation arose only when it needed to be packaged for a long time to be marketed commercially. Moreover, stabilisation and other advances attributable to modern laboratory technology had already been developed by Indian scientists in the 1960s and 1970s, well before US and Japanese companies expressed interest in them.
Dr R P Singh of the Indian Agricultural Research Institute asserts:
'Margosan-O is a simple ethanolic extract of neem seed kernel. In the late sixties we discovered the potency of not only ethanolic extract, but also other extracts of neem ... Work on the neem as pesticide originated from this division as early as 1962. Extraction techniques were also developed by a couple of years. The azadirachtin-rich dust was developed by me.' The reluctance of Indian scientists to patent their inventions, thus leaving their work vulnerable to piracy, may in part derive from a recognition that the bulk of the work had already been accomplished by generations of anonymous experimenters. This debt has yet to be acknowledged by the US patentors and their apologists. The CRS report claims that 'the method of scattering ground neem seeds as a pesticide would not be a patentable process, because this process ... would be deemed obvious' - a statement that betrays either lamentable misjudgement or a racist dismissal of indigenous knowledge. The discovery of neem's pesticidal properties and of how to process it was by no means 'obvious', but evolved through extended systematic knowledge development in non-Western cultures. In comparison to this first non-obvious leap of knowledge, it is the subsequent minor derivatives that are 'obvious'.
From waste to wealth?
W R Grace and P J Margo also claim that their project benefits the Indian economy. It does so, they say, by'providing employment opportunities at the local level and higher remuneration to the farmers as the price of Neem Seeds has gone up in the recent times because value is being added to it during its process. Over the last 20 years the price of neem seed has gone up from Rs300 a ton to current levels of Rs3000-4000 a ton.'
In fact, the price has risen considerably more than this: in 1992 Grace was facing prices of up to $300 (over 8,000 rupees) per ton.
This increase in the price of neem seeds has turned an often free resource into an exorbitantly priced one, with the local user now competing for the seed with an industry supplying consumers in the North. As the local farmer cannot afford the price that the industry can, the diversion of the seed as raw material from the community to industry will ultimately establish a regime in which a handful of companies holding patents will control all access to neem as raw material and all production processes. P J Margo claims that this is 'a classic case of converting waste to wealth and beneficial to the Indian farmer and its economy'. This statement is in turn a classic example of the assumption that local use of a product does not create wealth but waste; and that wealth is created only when corporations commercialise the resources used by local communities.
There is a growing awareness throughout India that the commoditisation of neem will result in its expropriation by multinational companies. On 15 August, Indian Independence Day, farmers in the state of Karnataka rallied outside the offices of the District Collector in each district, to challenge the claims of those multinational companies such as W R Grace demanding 'intellectual property rights'. The farmers carried neem branches as a symbol of collective indigenous knowledge.
Finally
Their campaign has been supported by many noted Indian scientists. Dr R P Singh expressed his 'whole [hearted] support [for the] campaign against the globalisation of the neem.' Dr B N Dhawan, Emeritus Scientist at the Central Drug Research Institute, maintains: 'It is really unfortunate that the benefits of all this work should go to an individual or to a company. I sincerely hope that .. the neem will continue to remain available for use by people all over the world without paying a high price to a company.'
