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USA - INTERNATIONAL / PATENTS / BIOLOGY - TRADITIONAL KNOWLEDGE

Food for Thought: The Biopiracy of Jasmine and Basmati Rice

Michael Woods

Albany Law Journal of Science & Technology, Vol 13 No 1, 2002

Many commentators are concerned about the exploitation of traditional knowledge and indigenous skills in the less developed countries: some are even sceptical about the appropriateness of extending intellectual property protection to these fields at all, given the problems of applying the concept to this sector. The present article has a somewhat different approach. While sharing the general concern, particularly as regards the patenting under United States law of biological resources from less developed countries, the author considers that the remedy lies in two areas. The first is the amendment of the TRIPs Agreement, to provide better protection for indigenous knowledge. The second is the amendment of United States law, to exclude patenting agricultural biotechnology in particular and, more broadly, the resources with "rich cultural histories" in the countries concerned. The author points to the experience with Indian and Pakistani Basmati rice and Thailand Jasmine rice. He refers to the United States Supreme Court judgment in Diamand v Chakrabarty, in which the Court held that, "while a new plant found in the wild is not patentable, … the work of a plant breeder in aid of nature was a patentable invention". In other words, the restrictions on appropriating indigenous biological subjects can be circumvented by genetic modification of the plants and the creation of a new and patentable subject: cross-breeding may also result in novel plant lines, which have been held to be patentable in the United States in the Supreme Court judgment in JEM AG Supply Inc v Hi-Bred International Inc. The author examines United States patent policy, the policies of some of the less developed countries, the TRIPs Agreement (with particular reference to Article 27(2)) and the United Nations Convention on Biological Diversity (to which the United States is not a party). He defines biopiracy, following Valentina Tejera, as "the unauthorized and uncompensated expropriation of traditional knowledge and resources" and illustrates his thesis by describing the rice and similar markets and the attempts to patent modified versions of crops such as rice, wheat, maize, soybeans and sorghum. These attempts are seen by some as exploitation of traditional farmers and by others as applying technology to improve the quality of life for all mankind. In general, the author favours strong intellectual property laws, except when they act as an incentive to "profit at the expense of less developed countries". [20087]