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ISSN: 1040-2659 (Print) 1469-9982 (Online) Journal homepage: https://www.tandfonline.com/loi/cper20

North‐South Conflicts in Intellectual Property

Rights

Vandana Shiva

To cite this article: Vandana Shiva (2000) North‐South Conflicts in Intellectual Property Rights,
Peace Review, 12:4, 501-508, DOI: 10.1080/10402650020014573

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Published online: 19 Aug 2010.

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Peace Review 12:4 (2000), 501–508

North–South Con icts in I ntellectual Property

Rights

Vandana Shiva

Western intellectual property rights (IPR) regimes have emerged as major

instruments of North–South inequality. Not only do they block technology
transfer, they facilitate piracy of the indigenous knowledge and biodiversity of
Third World countries. They could, if not revised and reviewed, make northern
countries into the monopoly owners of knowledge, including knowledge that has
evolved cumulatively and collectively in indigenous cultures, selling it at high cost
to already impoverished and indebted countries of the South, pushing them
further into poverty and debt. Since the majority of the people in the South
depend on biodiversity for their livelihoods and survival, the hijack of their
resources and knowledge through IPRs is the hijack of their lives and livelihoods.
The IPR regimes in a digital age carry the mask of earlier times, when patents
were licensed to plunder and piracy. The primary difference between patents in
a digital age and patents in the gunboat age is that the new technologies can
colonize life itself, while the older technologies could only colonize land. But
patents and IPRs in the digital age share the earlier history of patents as
instruments of conquest, which deny prior rights and erase prior histories of
cultures. The appropriation of biodiversity and indigenous knowledge through
patents is made possible by making one language, one culture and one world-
view associated with rights while rendering all other languages, cultures and
worldviews disenfranchised. In the digital age, the language of genes and
molecules is used to rob the Third World of its biological and intellectual
heritage, through biopiracy, just as in the colonial era the language of Christian-
ity was used to rob non-European people’s of their land and gold.

T oday patents are associated with creativity and invention. They are an
exclusive right granted to an inventor to make, produce, distribute and sell
the patented product or use patented processes. However, patents have had
other functions and meanings in history. Patents have, through history, been
associated with colonization. At the beginning of colonization of the world by
Europe, they were aimed at the conquest of territory; now they are aimed at the
conquest of economies.
Letters, patents and charters created property rights to conquered lands. The
most frequent phrase in Columbus’ charter the Capitulaciones de Santa Fe, was the
dual verb “discover and conquer.” It was used seven times to assert rights to all
“islands and mainlands” before their discovery. The charter states:
ISSN 1040-265 9 print; ISSN 1469-998 2 online/00/040501-08 Ó 2000 Taylor & Francis Ltd
DOI: 10.1080/1040265002001457 3
502 Vandana Shiva

This charter makes patent the existence of “islands and mainlands” in the generative
formations of its language, and, in doing so, assigns proprietary jurisdictional authority
for that terrain to its would be, more accurately its “will-have-been-discoverer and
conqueror” as discoverer and conqueror.

These patents for discovery and conquest provide the background for the
contemporary con icts over patents generated by the General Agreement for
Trade and Tariffs (GATT) and the World Trade Organization (WTO), which
are often viewed as tools of recolonization by the Third World but viewed as
“natural” a right as conquest was during colonialism by Western powers.
There are, of course, differences in yesterday’s colonization and today’s
recolonization. Religion is not the ultimate justiŽ cation for today’s conquest.
Recolonization is a “secular” project, but there is a new religion of the market
that drives this so-called secular project. Territory, gold and minerals are no
longer the objects of conquest. Markets and economic systems are what have to
be controlled. Knowledge itself has to be converted into property, just as land
was during colonization. This is why today “patents” have been covered by the
broader label of “intellectual property” or property in the “products of the
mind.” Just as land that was claimed to have been “discovered” and was treated
as “Terra Nullius” or empty land in spite of being inhabited by indigenous people
just because it was not inhabited by white Europeans, knowledge that is claimed
to have been “invented” and hence “patented” and converted to “intellectual
property” is often an existing innovation in indigenous knowledge systems.
The claim to invention, like the claim to discovery in the patent charters of
colonial conquest, is the justiŽ cation for the take-over of market systems and
economic systems through globalized patent regimes. The cloak of reward to
inventiveness hides the real object—the control over the global economy. This
secular conquest of diverse knowledge systems and economies is at the heart of
the intense con icts and controversies on patents.

P atent laws in the U.S. are guided by myths on which today’s superpower
stands. The Ž rst is the myth of discovery that went hand in hand with the
original deŽ nition of the scope of letters patent that allowed it to be said that
Columbus discovered America. The second is the myth of ignorance as inno-
vation. This is categorically stated in the 1715 Connecticut law:

If any person or persons shall set themselves to work to discover any commodities that
may be of use for the country, for the bringing in a supply of goods from foreign parts,
that is not as yet of use among us, he that discovers it shall have due encouragement
granted to him.

The early U.S. Patent Laws, like European laws, were for introducing new
methods, which were unknown in the U.S. but practiced elsewhere. They were
not related to inventiveness, only to the fact that the practice was not being
undertaken within the sovereign’s domains, and hence could be treated as
“presumed to be unknown.”
Prior art and prior use in other countries was therefore systematically ignored
in U.S. laws on monopolies granted on the basis of claims to invention. The
same assumption of ignorance as invention is enshrined in the U.S. Patent
 North–South Conicts in IPRs 503

Act of 1952. Section 102 of the Act treats as a prior art use in the U.S. and
publications in foreign countries. Use in foreign countries is not recognized as
prior art. Section 102 of the U.S. law, which deŽ nes prior art, reads as follows:

A person shall be entitled to a patent unless:

A. The invention was known or used by others in this country or patented or described
in a publication in this or a foreign country before the invention thereof by the
applicant for patent, or
B. The invention was patented or described in a trade publication in this or a foreign
country or in public use or on sale in this country more than one year prior to the
date of the application for patent in the United States.

Use in a foreign country therefore does not constitute prior art in U.S. patent
law.
Since patents are granted for new inventions, denial or non-recognition of
prior art elsewhere allows patents to be granted for existing knowledge and use
in other countries. This is the basis of biopiracy or knowledge of Indian
knowledge systems, and indigenous uses of biological resources being patented.
As Peter J. Thana has stated,

The statute talks about things that are publicly known and publicly used in this country
before the date of invention. You should not be able to claim as your invention,
something that was on the shelf, out there, before you invented it. Prior art excludes
devises in use elsewhere in the world. If, for example, somebody in Europe were
operating a machine and you independently and without knowledge of the existence in
good faith developed your own invention that was essentially the same machine, that fact
would not prevent you from obtaining a patent in the U.S. The European invention
would not be considered prior art in the statute.

The U.S. statute, which was designed to make the U.S. an independent
industrial power, was thus deliberately designed to deny prior art and hence treat
ignorance of prior innovation as the grounds of invention. Paradoxically, a legal
system aimed at preventing “intellectual piracy” is itself based on legitimizing
piracy.
This is the reason that neem, turmeric, ginger, bitter gourd, and basmati have
been patented. Biopiracy has emerged as an intrinsic part of Western industrial
IPR regimes that have now been globalized through the Trade Related Intellec-
tual Property Rights Agreement (TRIPs) of the WTO. The need for TRIPs
reform, and reform in Northern IPR regimes is therefore of utmost urgency.

T he epidemic of biopiracy is rooted in the old colonial assumption of “Terra

Nullius” or the empty earth—if a territory is empty of “white Christians” it
is assumed to be empty. Today, the “empty earth” has been replaced by empty
life—plants, animals, micro-organisms and humans become “inventions” when
their knowledge is discovered by Western science or Western commercial
interests, even if this knowledge has existed for centuries in indigenous cultures,
and even though life forms are not human inventions. Patents on life are based
on biopiracy, either because they involve the theft of nature’s creativity and
intelligence or the creativity and innovation of other cultures.
The era of biopiracy began with the Ž rst patent of life granted by the U.S.
504 Vandana Shiva

patent ofŽ ce. In 1971, General Electric and one of its employees, Anand Mohan
Chakravarty, applied for a U.S. patent on genetically engineered pseudomonas
bacteria. Taking plasmids from three kinds of bacteria, Chakravarty transplanted
them into a fourth. As he explained, “I simply shuf ed genes, changing bacteria
that already existed.” Chakravarty was granted his patent on the grounds that
the micro-organism was not a product of nature, but was his invention and,
therefore, patentable. As Andrew Kimbrell, a leading U.S. lawyer, recounts, “In
coming to its precedent-shattering decision, the court seemed unaware that the
inventor himself had characterized his ‘creation’ of the microbe as simply
‘shifting’ genes, not creating life.”
On such slippery grounds, the Ž rst patent on life was granted, and, in spite of
the exclusion of plants and animals from patenting under U.S. law, the United
States has since rushed to grant patents on all kinds of life forms. Currently, well
over 190 genetically engineered animals, including Ž sh, cows, mice, and pigs, are
Ž guratively standing in line to be patented by a variety of researchers and
corporations. According to Kimbrell, “The Supreme Court’s Chakravarty de-
cision has been extended to be continued up the chain of life. The patenting of
microbes has led inexorably to the patenting of plants, and then animals.”
Biodiversity has been redeŽ ned as “biotechnological inventions” to make the
patenting of life forms appear less controversial. These patents are valid for 20
years and, hence, cover future generations of plants and animals. Yet even when
scientists in universities or corporations shuf e genes, they do not “create” the
organism that they then patent.
Referring to the landmark Chakravarty case, in which the court found that he
had “produced a new bacterium with markedly different characteristics than any
found in nature,” Key Dismukes, Study Director for the Committee on Vision
of the National Academy of Sciences in the United States, said:

Let us at least get one thing straight: Anand Chakravarty did not create a new form of
life; he merely intervened in the normal processes by which strains of bacteria exchange
genetic information, to produce a new strain with an altered metabolic pattern. “His”
bacterium lives and reproduces itself under the forces that guide all cellular life. Recent
advances in recombinant DNA techniques allow more direct biochemical manipulation
of bacterial genes than Chakravarty employed, but these too are only modulations of
biological processes. We are incalculably far away from being able to create life de novo,
and for that I am profoundly grateful. The argument that the bacterium is Chakravarty’s
handiwork and not nature’s wildly exaggerates human power and displays the same
hubris and ignorance of biology that have had such devastating impact on the ecology
of our planet.

This major shift in the scope of patentability was not the result of any debate
in parliament or among the public, but of a patent ofŽ ce. Patents on life were
then globalized by a decision made during the Uruguay Round of GATT to
include IPRs in trade treaties, and to include life in IPR regimes. TRIPs was
drafted and pushed by industry. As James Enyart of Monsanto has stated,

Besides selling our concepts at home, we went to Geneva where [we] present [our]
document to the staff of the GATT Secretariat. We also took the opportunity to present
it to the Geneva based representatives of a large number of countries. … What I have
described to you is absolutely unprecedented in GATT. Industry has identiŽ ed a major
 North–South Conicts in IPRs 505

problem for international trade. It crafted a solution, reduced it to a concrete proposal

and sold it to our own and other governments. … The industries and traders of world
commerce have played simultaneously the role of patients, the diagnosticians and the
prescribing physicians.

The TRIPs agreement of GATT, by allowing for monopolistic control of life

forms, has serious ramiŽ cations for biodiversity conservation and the environ-
ment. Article 27.5.3(b) of the TRIPs agreement states:

Parties may exclude from patentability plants and animals other than microorganisms,
and essentially biological processes for the production of plants or animals other than
non-biological and microbiological processes. However, parties shall provide for the
protection of plant varieties either by patents or by an effective sui generis system or by
any combination thereof. This provision shall be reviewed four years after the entry into
force of the Agreement establishing the WTO.

The period for the review of TRIPs has therefore begun in 1999. While most
Third World countries wanted TRIPs changed to prevent patents on life and
biopiracy, the U.S. is upholding the patenting of life forms and indigenous
knowledge.

I n granting the Ž rst patent on life in 1980, the U.S. Supreme Court interpreted
life as “manufacture” and “constitution of matter.” This started the slide down
the slippery slope of patenting seeds, cows, sheep, human cells and micro-organ-
isms. The U.S. is proud of having started a perverse trend based on  awed
scientiŽ c assumptions that ignore the self-organizing, dynamic, interactive nature
of life forms, deŽ ning them as mere “constitution of matter.” As the U.S. paper
on the TRIPs review states, “The Supreme Court’s decision in Diamond,
Commissioner of Patents and Trademarks vs. Chakrabarty spurred the develop-
ment of a new industry—the biotechnology industry.”
The U.S. is committed to patents on life in order to defend its biotechnology
industry. Having opened the  ood gates to treating life forms and these
modiŽ cations as patentable, the U.S. patent ofŽ ce started to grant patents not
just to genetically modiŽ ed organisms (GMOs), but to process and products
derived from indigenous knowledge of biological resources. This is how patents
on neem, karela, and basmati have been given in the U.S. Instead of recognizing
that it is promoting piracy and changing its laws to prevent its practice, the U.S.
has rejected all Third World proposals for the recognition and protection of
indigenous knowledge.
The U.S. states that requiring patent applicants to identify the source of
genetic materials or traditional knowledge used in developing their claim “would
be impractical.” Recognizing indigenous knowledge should be a necessary
element of the test for inventiveness and novelty that is required under any
patent system. However, when it comes to traditional knowledge, this screening
for prior art is declared as impractical. Forcing all countries to change their
patent laws in spite of protests is considered practical. Imposing patents on life
on people in the North and South who reject patents on life is considered
practical. Changing the world’s cultures and enforcing property rights on seed is
considered practical. Collecting royalties from the poor in the Third World for
506 Vandana Shiva

resources and knowledge that came from them in the Ž rst place is considered
practical. But taking the simple step to change one clause in one law in the U.S.
and one clause in TRIPs is considered impractical. This suggests that the U.S.
is committed to promoting biopiracy.
TRIPs and U.S. style patent laws annihilate the rights of Third World
communities by not having any system of recognition and protection of indige-
nous knowledge. Biopiracy is intellectual and cultural rape. It is the slavery of the
new millennium, and there is only one way to stop it—to make it illegal in
international law by changing TRIPs. Anything short of stopping biopiracy
through reforming TRIPs is participation in a crime against nature and the poor.

W hen TRIPs was forced on countries during the Uruguay Round, many
issues of public concern were bypassed and the full ethical, ecological and
economic implications of patenting life were not discussed. Third World coun-
tries were coerced into accepting the Western style IPR system. As a result of
sustained public pressure after the agreement came into force in 1995, many
Third World countries have made recommendations for changes in Article 27.3
(b) to prevent biopiracy.
In a discussion paper submitted to the TRIPs Council in Geneva concerning
the patenting of life forms, the Indian Government wrote that:

Patenting of life forms may have at least two dimensions. Firstly, there is the ethical
question of the extent of private ownership that could be extended to life forms. The
second dimension relates to the use of IPRs concept as understood in the industrialized
world and its appropriateness in the face of the larger dimension of rights on knowledge,
their ownership, use, transfer and dissemination. Informal systems, e.g. the “shrutis” and
“smritis” in the Indian tradition and grandmother’s potions all over the world get scant
recognition. To create systems that fail to address this issue can have severe adverse
consequences on mankind, some say even leading to extinction.

African and Central American countries, as well India’s prestigious Research

Foundation for Science, Technology and Ecology, have also demanded a
Ž ve-year delay in the implementation of TRIPs. As a Third World country,
India’s interest lies in working with other developing countries to change the IPR
systems being globalized through TRIPs, claiming that TRIPs is biased in favor
of rich industrialized countries and global corporations.

A nother  aw of TRIPs that is also rooted in using the U.S. Patent as the
model is the introduction of patents on life forms through Article 27.3(b).
This Article was to be reviewed during the last WTO Seattle Ministerial
Conference. Bolivia, Columbia, Ecuador, Nicaragua and Peru submitted a
proposal, Protection of Intellectual Property Rights Relating to the Traditional
Knowledge of Local and Indigenous Communities. The paper states that:

The entire modern evolution of intellectual property has been framed by principles and
systems which have tended to leave aside a large sector of human creativity, namely the
traditional knowledge possessed by local and indigenous communities.

The group proposed that negotiations be initiated at the WTO Third

 North–South Conicts in IPRs 507

Ministerial Conference at Seattle to establish a multilateral legal framework for

granting protection to traditional knowledge. The entire African Group has also
called for systems to protect traditional knowledge. The African Group, repre-
sented through the Organization of African Unity (OAU), proposed that a
footnote be inserted to Article 27.3(b) stating that any sui generis law for plant
variety protection can provide for the protection of the innovations of indigenous
and local farming communities in developing countries, consistent with the
Convention on Biological Diversity and the International Undertaking on Plant
Genetic Resources. The African Group and India have also called for the
exclusion of life forms from patentability and for the WTO to be subordinate to
the Convention on Biological Diversity (CBD).
Although the African Group, Ž ve countries in Central and Latin America, and
India have called for changes in Article 278.3(b) on the basis of their right to a
review as built into the Agreement, the US and Europe are determined to block
the reform of TRIPs and any attempt to stop biopiracy. In a “Green Room”
consultation (the undemocratic structure of decision making in WTO), the
powerful industrialized countries told Mike Moore, the Director General that
they rejected all the proposals for the reform of TRIPs. The U.S. and Europe
have rejected developing country proposals related to Article 278.3(b) on the
grounds that the WTO cannot be subordinated to other international agree-
ments. This conŽ rms the environmental movement’s fears that the WTO
sacriŽ ces the environment for trade. Through the WTO, the rich North is
committed to protecting corporate monopoly rights, even if this means under-
mining protections for nature and people guaranteed by international agree-
ments and national constitutions.

O n May 10, the anniversary of the launch of the Ž rst Indian movement for
independence, a major milestone was crossed in the contemporary move-
ment of freedom from biocolonialism and biopiracy. The European Patent
OfŽ ce (EPO) struck down Patent No. 0436257 B1, jointly held by the U.S.
Government and the multinational W.R. Grace, as based on the piracy of
existing knowledge, and lacking in novelty and inventiveness. U.S.D.A. and
W.R. Grace had Ž led the Patent on December 12, 1990. On September 14,
1994, the European Patent OfŽ ce granted a patent for

A method for controlling fungi on plants comprising contacting the fungi with a neem
oil formulation containing 0.1 to 10% of a hydrophobic extracted neem oil which is
substantially free of azadirachtin, 0.005 to 50% of emulsifying surfactant, and 0 to 99%
water.

I Ž led a patent challenge on June 5, 1995 as Director of the Research

Foundation for Science, Technology and Ecology, with Linda Bullard, President
of the International Federation of Organic Agriculture Movements, and Magda
Alvoet, currently Health and Environment Minister of Belgium. We Ž led a legal
opposition because the use of neem extracts for fungicide and pesticide has been
practiced for centuries and investigated scientiŽ cally and commercially for
decades prior to the claim to invention in the USDA–Grace patent. Over Ž ve
508 Vandana Shiva

years, we brought every possible evidence to bear on the case through afŽ davits
from farmers and scientists.
The work for the “Neem Challenge” started in 1994 when I Ž rst read about
the neem patents in a journal. We launched the “Neem Campaign” in India,
and formed the “Neem Team”—an international network of patent warriors to
support our national campaign. We started the campaign because of the
importance of neem in our culture, our agriculture and our health systems. We
picked the fungicide patent because it was owned by the U.S. Government and
a big multinational corporation (MNC). It was therefore a powerful symbol of
biopiracy and the  aws of Western industrial IPR systems. Neem is an important
symbol because it is used on a large scale for medicine and agriculture in India.
If biopiracy can occur with such commonly used knowledge, what would be the
fate of less prevalent examples of traditional innovation? Neem was also import-
ant because it is an ecologically sound alternative to hazardous pesticides. Our
campaign “No more Bhopals, plant a neem” started in 1984 at the time of the
Bhopal disaster. Neem has been a central part of the ecological and sustainable
agriculture work that we have done in India through national networks on
organic farming. Finally, neem is a symbol of freedom as the “Free Tree.” Its
scientiŽ c name, Azadirachtin Indica, is derived from Azad Darakt which means free
tree. Liberating the free tree thus became the symbol of our liberation movement
to free knowledge systems and biodiversity from biopiracy.
The neem battle has been described as one between Davids and Goliaths—the
Davids being three women and their organizations, the Goliaths being a
superpower and a major multinational corporation. The USDA and Grace
attorneys tried every argument under the sun to dismiss the case and block the
proceedings, including procedural arguments that as an Indian I could not bring
a case to the EPO and that the Research Foundation had not paid a $2,000 fee.
Working together as friends and colleagues over more than a decade, Linda
Bullard, Magda Alvoet, and others in the movement against biopiracy evolved
creative ways to challenge money power with moral power, and the might of
corporations and governments with solidarity. In this case David won and on the
afternoon of May 10, 2000 the patent was revoked! Freeing the free tree was part
of an experiment in Ž nding new ways to defend liberty in an era of biocolonial-
ism.

Vandana Shiva is a physicist, environmental activist, and Director of the Research Foundation for
Science, Technology and Natural Resource Policy. She has been a visiting professor and has lectured
at the University of Oslo, Norway, Schumacher College, U.K., and Mt. Holyoke College, U.S. She
currently lectures at York University, Canada, the University of Lulea, Sweden, the University of
Victoria, Canada, and organizations and institutions worldwide on the environment, feminism and
economic development. Besides her academic and research contributions, she has also served as an
adviser to governments in India and abroad as well as NGOs, such as, The International Forum on
Globalization, Women’s Environment and Development Organization and Third World Network.
She was the winner of the Right Livelihood Award for 1993. Her books include Stolen Harvest, Biopiracy,
Monocultures of the Mind, The Violence of the Green Revolution, and Staying Alive. Correspondence: Director
Research Foundation for Science, Technology and Ecology, A-60, Hauz Khas, New Delhi–110 016,
India. E-mail: vshiva@giasdl01.vsnl.net.in