In part because they have been unable to convince India’s scientists, businessmen or political leaders of their arguments, environmentalists opposed to patents have turned to the judiciary to influence government policy. A recent petition filed with the Supreme Court by a group called the Research Foundation for Science, Technology and Ecology is a case in point. The lawsuit alleges the government failed to take measures to protect the intellectual capital inherent in India’s biodiversity. Biodiversity encompasses many forms of knowledge: natural flora and fauna, Indian forms of medicine like ayurveda and indigenous tribal herb lore. The lawsuit says a patent has been granted to a United States company on an anti-diabetic mixture of bittergourd, eggplant and blackberry. It also cites a patent in Japan on Indian curry and another in the US on a variety of basmati rice as further examples of New Delhi’s failure. As has been the pattern of previous attacks on patents, the charges are equal parts half truth and hysteria.
The US patent office provides temporary patents on any invention brought to its attention. But these are subject to challenge and can be easily revoked. A US patent filed on the use of turmeric for healing, for example, was easily challenged. The anti-diabetic mixture is still revocable. The Japanese patent on curry has yet to be even granted. Challenging such weak claims is easy. In any case, a patent cannot be filed on a naturally occurring substance. It can be applied to the use of such a substance for a novel purpose. Thus eggplant, for example, can never become someone’s property. Basmati is not even a patent issue. A US company has legitimately filed a patent on a new hybrid rice strain. Whether the strain can be called basmati is a not a patent issue but a geographical indications concern. India has just legalized such names. However, it has failed to cooperate with Pakistan on ensuring only rice grown in the subcontinent carries the basmati name. New Delhi can be faulted for being slow in passing a wide range of laws on intellectual property rights. A biodiversity bill is still pending. But a reason for this delay was the unwillingness of many groups — environmentalists, saffronites and communists — to accept the notion of intellectual property. Only when they recognized India’s opposition to a global trend was self-defeating did they change their tune. But India is still marked by patent illiteracy. The infrastructure remains primitive. Indigenous knowledge is largely undocumented, making protection nearly impossible. And because the domestic patent regime is so weak,
Indian inventors prefer to file for protection overseas. Making intellectual property safer in India is what is needed. Not ill-informed judicial petitions that are primarily designed to arouse unnecessary popular fears rather than help the country prepare for a knowledge based society.