Landmark Victory in World's First Case Against Biopiracy Print E-mail
Dear,Dearest,
 
At the International Women's Day this year world-history is written by three fantastic women:Magda Aelvoet, Vandana Shiva and Linda Bullard.Because of their action an american multinational could not take a patent on a fungicidal product derived from seeds of the Neem, a tree indigenous to the Indian subcontinent and a product that for centuries is used by the agriculture population in India.

This once again is an example of how people in the South and North can work together for a better,more just world.By co-operating, and persist doing this even it costs 10 years before there is any result (as in this case),they could protect the rights from the South against this pirate actions from Northern capitalism.
Congratulations !
This is fantastic news,not only for the people in India,it also in a big support for everybody who works for a better,more just world.
And to get this fantastic result on the international women's day,that is even more fantastic !
Thanks very much
lots of love
lieve Research Foundation for Science,Technology and Ecology, New Delhi, India
The Greens/European Free Alliance in the European Parliament
International Federation of Organic Agriculture Movements

P R E S S    R E L E A S E

Landmark Victory in World’s First Case Against Biopiracy!!

European Patent Office Upholds Decision to Revoke Neem Patent

Munich, March 8, 2005.  In a landmark decision today, the European Patent
Office upheld a decision to revoke in its entirety a patent on a fungicidal
product derived from seeds of the Neem, a tree indigenous to the Indian
subcontinent. The historic action resulted from a legal challenge mounted
ten years ago by three Opponents:  the renowned Indian environmentalist
Vandana Shiva, Magda Aelvoet, then MEP and President of the Greens in the
European Parliament, and the International Federation of Organic Agriculture
Movements (IFOAM).  Their joint Legal Opposition claimed that the fungicidal
properties of the Neem tree had been public knowledge in India for many
centuries and that this patent exemplified how international law was being
misused to transfer biological wealth from the South into the hands of a few
corporations, scientists, and countries of the North.  Today the EPO’s
Technical Board of Appeals dismissed an Appeal by the would-be
proprietors—the United States of America and the company Thermo Trilogy—and
maintained the decision of its Opposition Division five years ago to revoke
the Neem patent in its entirety, thus bringing to a close this ten-year
battle in the world’s first legal challenge to a biopiracy patent.

Dr. Vandana Shiva, who travelled from India to be present at today’s
hearing, commented, “What a lovely celebration for the women of India that
this long-awaited decision falls on March 8th, International Women’s Day.
Denying the patent means upholding the value of traditional knowledge for
millions of women not only in India, but throughout the South.  The FREE
TREE WILL STAY FREE.  This victory is the result of extremely long
solidarity.  It is a victory of committed citizens over commercial interests
and big powers.”

Magda Aelvoet, Belgian Minister of State and former Health and Environment
Minister, was President of the Green Group in the European Parliament when
the original Opposition was submitted.  Just after the ruling, she
commented, "Our victory against biopiracy is threefold. First, it is a
victory for traditional knowledge and practices. This is the first time
anybody has been able to have a patent rejected on these grounds. Second, it
is a victory for solidarity:  With the people of developing countries—who
have definitively earned the sovereign rights to their natural resources—and
and with our colleagues in the NGOs, who fought with us against this patent
for the last ten years. And third, coming as it does on International
Women's Day, this is also a victory for women. The three people who
successfully argued this case against the might of the U.S. administration
and its corporate allies, were women: Vandana Shiva, Linda Bullard and
myself.  It can also inspire and help people from developing countries who
suffer the same kind of theft but did not think it was possible to combat it."

Linda Bullard, former President of the International Federation of Organic
Agriculture Movements (IFOAM), stated, “We are deeply gratified that through
our case the EPO has recognized the intellectual achievements of the South.
We were able to  establish that traditional knowledge systems can be a means
of establishing “prior art” and thus used to destroy the claims of “novelty”
and “inventiveness” in these biopiracy patents.  This now becomes case law,
but the historic precedent must be further developed and transposed into
overall international legal frameworks so that this type of theft is no
longer possible.”

Although two days had been set aside to examine the Appeal, the case was so
clear that the Technical Board of Appeals needed only two hours to reach a
decision to dismiss the Appeal.

The Opponents were legally represented throughout the ten year battle by
Prof. Dr. Fritz Dolder, Professor Intellectual Property with the Faculty of
Law at the University of Basel, in Switzerland.*  Dr. Dolder explained that
a reformulated claim submitted by the patent holders as part of their Appeal
was rejected on formal grounds.  Subsequently, the main body of the patent
was tested with regard to novelty, disclosure, and inventive step…“and
revoked irrevocably!  This is the first time that the EPO has legally
concluded a biopiracy case.”

For further information, contact:
Research Foundation for Science, Technology and Ecology:  + 91/11-26561868,
-26968077, 26535422; E-mail: ; Web Site www.navdanya.org

The Greens/European Free Alliance in the European Parliament:  +32 2 284-1692;
E-mail ; Web Site www.greens-efa.org

IFOAM:  +49 228 926-5016; E-mail ;  Web Site www.ifoam.org

*The lawyer for the Opponents, Dr. Fritz Dolder, is also available for
questions at

Research Foundation for Science, Technology and Ecology, New Delhi, India


The Greens/European Free Alliance in the European Parliament


International Federation of Organic Agriculture Movements





BACKGROUND PAPER

ON  THE  NEEM  PATENT  BIOPIRACY CHALLENGE





In an Oral Proceeding on March 8th the Technical Board of Appeals of the
European Patent Office ruled to uphold a decision of its Opposition Division
revoking in its entirety a patent on a fungicidal product derived from seeds
of the Neem, a tree indigenous to the Indian subcontinent.  The ruling
concluded a ten-year battle to “Free the Free Tree” in the first legal
challenge to a Biopiracy patent.

CHRONOLOGY OF THE CASE
On December 12, 1990 the multinational agribusiness corporation W.R. Grace
of New York and the United States Department of Agriculture, Washington DC,
filed a European Patent application with the European Patent Office (EPO) on
the basis of a U.S. priority application of December 26, 1989, covering a
method for controlling fungi on plants by the aid of a hydrophobic extracted
neem oil.

After a very difficult and highly controversial examination procedure, the
grant of a European patent for this application was published on September
14, 1994, the main claim having been restricted by the EPO to:

“A method for controlling fungi on plants comprising contacting the fungi
with a neem oil formulation containing 0.1 to 10% of a hydrophoobic
extracted neem oil which is substantially free of azadirachtin, 0.005 to
5.0% of emulsifying surfactant, and 0 to 99% water.”

 In June of 1995 a legal opposition against the grant of this patent was
filed by Magda Aelvoet, MEP, on behalf of the Green Group in the European
Parliament, Brussels, Dr. Vandana Shiva, on behalf of the Research
Foundation for Science, Technology, and Natural Resource Policy, New Delhi,
and the International Federation of Organic Agriculture Movements, based in
Germany.

The Opponents submitted evidence to the EPO that the fungicidal effect of
hydrophobic extracts of neem seeds was known and used for centuries on a
broad scale in India, both in Ayurvedic medicine to cure dermatological
diseases, and in traditional Indian agricultural practice to protect crops
from being destroyed by fungal infections.  Since this traditional Indian
knowledge was in public use for centuries, it would seem that the patent
application in question lacked two basic statutory requirements for the
grant of a European patent, namely novelty and inventive step (in the U.S.
non-obviousness).

In addition, the Opponents charged that the fungicidal method claimed in the
patent was based on one single plant variety (Azadirachta indica) and hence
resulted in at least partially monopolising this single plant variety.
Since the European Patent Convention (EPC) explicitly prohibits the
patenting of plant varieties, the patent should therefore be revoked.

In a first preliminary statement of September 30, 1997, the Opposition Board
of EPO held that in summary, it appeared that “the present patent cannot be
maintained” in view of the [evidence supplied by the Opponents] for lack of
novelty and inventive step.  Moreover, the content of [additional evidence
filed by the Opponents] could “possibly form a very relevant prior art with
regard to the inventive step.”

In a second preliminary statement of June 15, 1999, the Opposition Board of
EPO held that according to evidence supplied by the Opponents it appeared
that “all features of the present claim (of the patent) have been disclosed
to the public prior to the patent application during field trials in the two
Indian districts Pune and Sangli” of Maharashtra, Western India, in summer
1985 and 1986.  Furthermore, the Opposition Board held that on the basis of
other evidence supplied by the Opponents, it appeared to be “mere routine
work for a skilled person to add an emulsifier in an appropriate amount” and
that therefore, “the present subject-matter was considered not to involve an
inventive step.”

On May 9th, following two days of an Oral Proceeding the Opposition of the
European Patent Office

Counsel for the Opponents is Dr. Fritz Dolder, Professor of Intellectual
Property, Faculty of Law, University of Basel (Switzerland).

THE NEEM TREE
The botanic name of the Neem Tree is Azadirachta indica, which is taken from
the Persian name for the tree, Azad-Darakth, meaning “the free tree.”  The
tree is a member of the mahogany family and is indigenous to the Indian
subcontinent.  Over the past century it has been introduced and now
flourishes in many countries of Africa, Central and South America, the
Caribbean and Asia.  Neem trees are attractive tropical evergreens that can
grow up to 30 meters tall and 2.5 meters in girth.  Their spreading branches
form rounded crowns as much as 10 meters across, and they may live for more
than two centuries.

It is in India that the tree is most widely used.  It is mentioned in Indian
texts written over 2000 years ago and has been applied for centuries in
agriculture as an insect and pest repellent, in human and veterinary
medicine, toiletries and cosmetics.  It is also venerated in the culture,
religions, and literature of the region.  India has freely shared its “free
tree” and knowledge of its myriad uses with the world community; but now,
through the patent sytem, this important resource is becoming the private
property of a few corporations.

THE NEEM PATENTS
At the time the Neem patent challenge was filed, only four patents had been
granted on Neem products by the European Patent Office.  Today one can find
65 neem patent in the European Patent Office, and ???? have been granted
worldwide.  These include claims for insecticides, fungicidal effects,
methods of extraction, storage stable formulations of one of the active
ingredients, azadirachten, contraceptives, and medical uses. The majority of
neem “proprietors” are transnational corporations, such as the
pharmaceutical company Rohm and Haas, and the agrochemical giant W.R. Grace.

It should be noted that none of the neem patents involve a genetically
engineered product; neither has the tree itself been patented, nor any of
its parts.  The case which will be heard March 8th and 9th involves a simple
oil-based extraction of coarsely ground seeds from the Neem tree.

THE NEEM TREE AND BIOPIRACY
The neem patents will result in major financial gains for their so-called
owners, but the communities which first understood the neem’s uses and
shared this knowledge with the rest of the world will not be compensated at
all.  The neem patents are just one in a large catalogue of genetic
resources originating in the South over which intellectual property rights
are being asserted by a few multinational corporations originating, for the
most part, in the North.  The Northern patent system was not intended to
recognise or reward as inventive the products of community innovation
processes such as those which created the various uses of the neem today.
It is only when these uses are described in the terms of Western science and
technology that an “invention” is deemed to have taken place and an
individual “inventor” or a set of individual “inventors” is allowed to be
rewarded with the monopoly property rights that make a patent worth having.
This is the mechanism through which a massive transfer of biological and
intellectual wealth is taking place--from the Third World to the North.

The fungicide claimed in the USDA/W.R. Grace patent cannot be produced
without naturally occurring neem seeds.  One direct impact of the corporate
monopoly on the Neem made possible by the patent system is a staggering
increase in the companies’ demand for seed.  A processing plant set up by
Grace in India can handle 20 tons of seed per day.  Almost all the seed
collected-which was previously freely available to the farmer and healer-is
now purchased by the company, causing the price of neem seed to rise beyond
the reach of the ordinary people.  Neem oil itself, used for lighting lamps,
is now practically unavailable, as the local oil millers are not able to
access the seed.  Poor people have lost access to a resource vital for their
survival-a resource that was once widely and cheaply available to them.

In an effort to deal with the problems of biopiracy there were attempts to
introduce a mechanism for “prior informed consent” into the EU Directive on
“Legal Protection of Biotechnological Inventions.”  However, this
controversial legislation was enacted in July 1998 without building in any
of the proposed protective measures.  Now efforts are being focused on the
Biodiversity Convention as an international legal instrument to require that
patent applications involving biological resources identify the source of
the material.

THE NEEM CAMPAIGN
The Neem Patent challenge was initiated in solidarity with the Neem
Campaign, which was launched in 1993 by farmers in India who feared that
their genetic resources and traditional knowledge were coming increasingly
under foreign control through the legal mechanism of patents.  They likened
what they were experiencing to a modern form of “enclosure of the
commons”-but in this case it was not public land which is being privatized,
it was public knowledge.  A delegation of Indian farmers and scientists is
bringing to Munich 500,000 signatures of Indian citizens demanding that the
patents on Neem be withdrawn.

In addition to the three official Opponents in this case, the following
organizations were listed on the original Legal Opposition as associating
themselves with and supporting the action: Karnataka Rajya Raitha Sangha
(India); Third World Network (Malaysia); the Green Group in the European
Parliament (EU); the European Coordination No Patents on Life!
(Switzerland); Rural Advancement Fund, International (Canada); Cultural
Survival Canada (Canada); the Cultural Conservancy (USA); the Edmonds
Institute (USA); Institute for Agriculture and Trade Policy (USA);
Washington Biotechnology Action Project (USA); Rio Grande Bioregions Project
(USA).

PARTS OF THIS BACKGROUND INFORMATION WERE DRAWN FROM:
Intellectual Piracy and the Neem Patents, Research Foundation for Science,
Technology and Natural Resource Policy, Dehradun, India, 1993.

Campaign against Biopiracy, Research Foundation for Science, Technology and
Ecology, New Delhi, India, November 1999.

For further information, contact the offices of the Opponents:
Research Foundation for Science, Technology and Ecology:  + 91/11-26561868,
-26968077, 26535422; E-mail: ; www.navdanya.org
The Greens/European Free Alliance in the European Parliament:  +32 2 284-1692;
E-mail ; Web Site www.greens-efa.org
IFOAM:  +49 228 926-5016; E-mail   Web Site www.ifoam.org
-- Linda Bullard
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