Monsanto Vs. Greenpeace in the Delhi High Court

Some news today about Mahyco’s (Monsanto’s Indian partner) suit in the Delhi High Court challenging the Central Information Commission’s November 2007 order which required the Department of Biotechnology to disclose information pertaining to Bt Brinjal.

The Maharashtra State Information Commission had previously denied this request on the ground that it “would affect the competitive position of a third party” (Sec. 8 ) – in this case Monsanto. The CIC had overruled this decision holding that notwithstanding the existence of such a ground of withholding of information, where public interest lay in the disclosure of information, such information could not be denied. The Delhi High Court passed an interim order in December 2007 staying the order till the next hearing of the case on April 23.

More details in this Business Standard article.

Greenpeace has obtained similar data on Monsanto’s genetically modified insect resistant maize in Europe through a court order. The Monsanto data, when independently evaluated, had given rise to conclusions that were contradictory to Monsanto’s observations.

Armed with the new data, the international NGO had launched a campaign, though not with much success, to see that the marketing approval given to the particular maize variety (MON 863) in Europe was withdrawn. Greenpeace is looking at the possibilities of a similar review of the data generated by Mahyco for its brinjal variety..

What’s startling about this suit is that Mahyco’s argument that in disclosing this information, India is violating our TRIPs data protection obligations. This is the Novartis case all over again. The Delhi High Court is notoriously more narrow-minded with patent suits and I hope this isn’t a strategy to arrive at data protection by other means.

Sui Generis protection for Traditional Medicine

I picked up an interesting snippet of information from the Business Standard yesterday.

“The government may take back its earlier plan to provide five-year data protection to traditional systems of medicine.”

Stop press! The Government had a plan to provide five-year data protection to traditional systems of medicine?! Who knew!

We’re informed of some of the history about this startling plan in the article:

The government’s plans for data protection began after a high-level inter-ministerial committee, set up by the Department of Chemicals and Petrochemicals in 2004, favoured such protection for traditional medicines and agro-chemicals.
After considering the Department of AYUSH’s submission, the committee, in its report submitted in May 2007, recommended that irrespective of the nature or the period of data protection granted to pharmaceuticals in general, a five-year data protection should be provided for traditional medicines. (See Satwant Reddy Report)

It also wanted the health ministry to make amendments to the Drugs and Cosmetics Rules, 1945, to effect the change.

But not anymore. Evidently someone at the Department of Ayurveda, Yoga, Unani, Siddha and Homoeopathy (AYUSH) decided that “such a protection will lead to similar demands from the allopathic segment” .. who are already beneficiaries of the stronger Patent system.. ahem.. one could possibly argue.

More:

While the government has been supporting the move to introduce data protection for traditional medicines, it has been reluctant to offer similar protection to the pharmaceutical sector in general due to the concerns of the domestic drug industry.

Domestic manufacturers say “data protection”, which results in “non-reliance” of data generated by the patent-holding company, will increase the cost of drug production and delay the entry of generic drugs into the domestic market.

“There are serious concerns relating to the ever-greening of patents under the guise of data protection and the need for providing affordable drugs to people,” it had reasoned.

Data protection to pharmaceuticals has been one of the most debated issues due to the strong reservations expressed by the domestic drug industry against such a move.

On the other hand, multinational drug majors have been saying that data protection is a prerequisite for foreign investments in drug research in India.

While the committee recommended a five-year data protection for traditional medicines, it refrained from making such a recommendation for other pharmaceutical products.

I fail to see how one has anything to do with the other, Data exclusivity for drug test results and data protection for traditional medicines. It’s like blocking the passage of the Copyright Act on grounds that artists could conceivably demand Patent type rights.

But I support the outcome.

From every angle that you approach it, a plan to gift monopolies over traditional medicine appears ill-conceived. Such a move is likely to discourage existing traditional practitioners and healers from experimentation and improvisation. Instead it sounds like it may benefit most the very pharmaceutical companies who are engaged in the sort of bio-piracy we witnessed with the turmeric cases. Pharmaceutical companies do not need further incentives to research traditional medicines.. it’s research that’s already been done for them over millennia.

While proper benefit sharing mechanisms need to be put in place to ensure that communities can receive their rightful share from commercial exploitations of their traditional knowledge, the answer cannot be an expansion of the already inflated IP System. The answer to the Question of the IP commons, does not lie in the creation of more property.