Protectionism and the WTO patent regime

"Pundita, Before getting too outraged over the Monsanto [chapati] patent...consider that India has been breaking US patents on drugs and medicines in India for a long time, and then manufacturing equivalents of such medicines by God knows what techniques for domestic sale and usage. My tears shed for the Indians in this Monsanto matter: zero.
John in Lexington"

Dear John:
Pundita agrees with the spirit of your points, as my 2/2/2005 blog amply illustrates. Yet the patents issue regarding agriculture and pharmaceutical products shows two very different reckonings, as a Third World Network report indicates:

When the US introduced IPRs [International Property Rights] in the Uruguay Round as a new issue, it accused the Third World of 'piracy'. The estimates provided for royalties lost in agricultural chemicals are US$202 million and US$2,545 million for pharmaceuticals.

However, as the Rural Advancement Foundation International (RAFI), in Canada has shown, if the contribution of Third World peasants and tribals is taken into account, the roles are dramatically reversed: the US owes US$302 million in royalties for agriculture and $5,097 million for pharmaceuticals to Third World countries, according to these latter estimates.

In other words, in these two biological industry sectors alone, the US owes $2.7 billion to the Third World. This debt will not be paid by the US unless we have our biodiversity legislation in place.

The heart of the issue deals with the legal issues relating to 'prior art:'

Patents are supposed to satisfy three criteria: Novelty, Non-obviousness, and Utility:

Novelty implies that the innovation must be new. It cannot be part of 'prior art' or existing knowledge. Non-obviousness implies that someone familiar in the art should not be able to achieve the same step. Most patents based on indigenous knowledge appropriation violate the criteria of novelty combined with non-obviousness because they range from direct piracy to minor tinkering involving steps obvious to anyone trained in the techniques and disciplines involved.

In the case of the chapati patent, the company didn't even bother to make a minor adjustment to the product. They simply listed the genetic make-up of certain strains of wheat--developed through generations of openly shared knowledge among Indian farmers--and termed that list an "invention." So it's not called biopiracy for nothing.

Biopiracy--the practice of slapping a patent on indigenous products that evolved through open sharing of knowledge--represents pseudo-science and bad business practice. The larger issue is the controversy about the so-called "WTO patent regime" and how the regime fuels biopiracy. There is some weight to the charge that EU and US companies have greatly abused the spirit and intention of the WTO and the legal system by slapping patents on indigenous products in less developed countries. Basmati rice and chapati wheat are but two in a long list of outrageous patents, which includes the infamous patent on turmeric.

Few Americans are aware of the biopiracy issue, but this is a huge issue in China and India and throughout the developing world. At the heart of the issue is the charge by LDC governments that US and the West European governments have used the WTO as an extension of the plantation policies that supported the European colonial empires.

This is a big and hideously complex subject and there are abuses on both sides. Also, there are divisions within the ranks, as this World Socialist Web Site story indicates. Trotskyites are battling with India's Stalinist Communist Party over the issue of patents.

I note that Trotskyites have a bad habit of injecting doctrinal rhetoric even into the weather report, so first you have to scale socialist verbiage before you can grapple with the really confusing part of the story about Indian patent legislation, TRIPS, and the WTO patent regime.

But not to discourage the reader from giving it a try. Even if you emerge confused, as Pundita did, you'll have an idea of how big this issue is, and why US trade policy should take it under serious consideration.

The WTO patent regime falls under the growing list of protectionist issues. See Mover Mike's pithy essays What is Senate Bill 295? and Can't Someone Rid us of Meddling Governments? for warnings about the rising tide of protectionism and its destructiveness.