Biopiracy Biopiracy is defined as, “the illegal appropriation of life – micro-organisms, plants and animals (including humans) and the traditional knowledge that accompanies it” Multinational corporations (MNCs) have been searching for rich natural resources everywhere to make out a product along with the traditional knowledge prevailing there, then patent it and mint money out of it.

Indigenous people have been growing plants for centuries based on their traditional knowledge and considered as public domain. Patent is for a new product or new idea or process or knowledge or innovation. Hence, the traditional knowledge is effectively excluded from obtaining patent. Plants cannot be patented but their genes and active compounds can be patented. So, the MNCs make use of this knowledge and resource to make windfall profits

This is an illegal appropriation of rights of indigenous people This is an illegal appropriation of rights of indigenous people. It is also a violation of international conventions and domestic laws, if any. Hence, biopiracy is a new from of colonialism of indigenous people to plunder their knowledge and the national resources. Naomi Roht-Arriaza (1996) observed: Indigenous and the traditional communities have had no practical opportunity to participate in the development of national or international intellectual property system.

Marcia Ellen Degeer (2003) observed that –“Patent law is the antithesis of Indigenous communities, because it is based on monopolistic and exclusionary rights while tribal communities emphasize the needs of the group and the benefits of all over the individual”. According to the patent law, an object or claim for patent will be granted when the following criteria are fulfilled; the object or claim be: i) new ii) Non-obvious and iii) Useful

Newness Indigenous people gathered knowledge passed on over generations and known to at least more than one person. This knowledge was an ‘invention’ when it was gathered or evolved over ages when patent law was unknown and now the law will consider it nothing new in it. Patent law considers that when an individual comes up with some innovation then granting patenting should be given so that he/she will enjoy exclusive rights which will benefit the society also. It is the reverse way in the case of indigenous people.

Cultural knowledge benefits the community which is prioritized over the individual. While market economy focuses an individual to benefit the society, the indigenous people consider society benefits first as this will benefit the individual also ultimately. Patent law was written by the west for its benefits with least consideration for the resource poor people and indigenous people.

Further, published information is not accepted for granting patent Further, published information is not accepted for granting patent. Many anthropologists’, ethnobotanists and other scholars have been documenting and publishing traditional knowledge in the pretext of research of which the indigenous people don’t know anything. In one way this prevents them in seeking any – use right but such published information could benefit them as MNCs cannot seek rights over such indigenous knowledge.

Non-obviousness or Inventive Requirement It is defined as follows: “A patent may not be obtained….. if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a while would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains”.

While passing judgement in the Graham Vs John Deere case, the USA Supreme court stipulated four criteria for non-obviousness. They are: 1) First, the scope and content of the prior art should be ascertained 2) Second, the level of ordinary skill in the particular field should be assessed. 3) Third, the difference between the prior art and the claims at issue is examined. 4) Finally, a determination is made as to whether these differences would have been obvious to a lay person in the applicable field at the time.

In other words a patent is considered obvious if a person could have created the invention with information known to the public at large. Going by this view, MNCs can patent genes as the biological matter was not considered earlier for this purpose. A plant and its medicine use is known to indigenous people. Now, the plant can be taken to lab, the active ingredient is separated and patented. Thus, the resource and the knowledge of the indigenous people get stolen in a biological way.

Usefulness or utility Requirement In order to grant patent to an invention, it should serve minimal useful purpose. That is, it should offer profits. Indigenous people never consider profit while making medicines or other preparations. So they are by passed on this account also by the MNCs. Further, the level of awareness and knowledge of the indigenous people are very limited. They lack money to pursue legally also as filing a suit a involves lot of money till it is disposed off.

Bioprospecting Any effort to find biological resources and the related indigenous knowledge for commercial exploitation is called Bioprospecting. Bioprospecting facilitates biopiracy as it identifies biological resources and traditional knowledge with potential for commercial use and biopiracy appropriates them without obtaining Prior Informed Consent (PIT) or providing adequate compensation.

Globalization Trade is a dynamic economic activity that brings trading countries closer to each other and rapid global trade has made boundaries irrelevant and led to more inter-dependence among the countries. Globalization is the integration of national markets. It is the internationalization of markets for goods and services and financial markets. It had led to the emergence of Multinational Corporations (MNCs) which operate as transnational enterprises.

Globalisation provides enhanced market access when it enjoys comparative advantage for its products. It means when a country can produce and sell goods of acceptable quality at a price lower than prevailing prices then it enjoys an advantage as its products would be in demand in importing countries.