'Intellectual' War

Is it over and again Intellectual challenge in form of financial benefit?
This might not be very exaggeration if someone puts it like that!
It is well known (and also accepted) that Indians are more meritorious and intellectually ahead than the native Americans & Europeans. No, I am not commenting from any prejudice, but several surveys are there to present the stated fact.
But for past 15 years Developed nations (mostly USA and EU) have tried to throw challenges to India by owning patents on several products which is originally Indian and falls under ‘Traditional Knowledge!’
Intellectual Property Rights is an emerging aspect of international business. Management of IPRs has become one of the major attributes of M&A, Take Over or JVs! To protect the business interest of every nation, TRIPS (Trade Related Aspects of Intellectual Property Rights) has come into force under WTO! Most of the nations are signatories of the same! Yet violation is taking place in every second day! Copyrights, Geographical Identification, Trademarks are not that badly hit as in the case of patents! And India is the worst hit!
So, what is a patent?
It is a product or process which includes innovative step, industrial application, novelty and which must not fall under the ambit of ‘prior use’. Patent is generally granted for 20 years and governed by Indian Patent Act, 1970, (Amended in 2002).
WIPO has defined patent as “an exclusive right granted for an invention, which is a product or a process that provides a new way of doing something, or offers a new technical solution to a problem.” [http://www.wipo.int/freepublications/en/patents/450/wipo_pub_l450pa.pdf]

But surprisingly enough, while granting patents, many a times ‘prior use’ and ‘novelty’ have been looked down upon! The little example of that Basmati, Neem, Haldi (Turmeric), fennel, coriander, cumin, sunflower, peanut, reri (castor) all have been patented by USA and EU companies!! (Though some of them revoked later).

Before going into past, first let see the most recent one!
Lal Dantmanjan (Red Herbal Gentifrice) has been patented by Colgate-Palmolive in USA! Yes, it is the same Dantmanjan which reminds millions of Indians about ‘Raju & Masterji’ TV Commercials by Dabur! And which categorically falls under the age-old practice of Indian Ayurveda, which means Lal Dantmanjan is a Traditional Knowledge and is in public use for decades.
Colgate-Palmolive got the patent this year in June in USA. The same company has filed for patent of this product in India too in 1995. But that is yet to be granted.
The Secretary of ‘The Association of Manufacturers of Ayurvedic Medicines’ (Amam) is of the opinion that India must apply for ‘post grant’ objection sighting the example of Traditional Knowledge. And India’s application must be cancelled on the ground of ‘traditional knowledge.’

But Traditional Knowledge of India has developed a peculiar ‘tradition’ of being patented outside the country!

It began all with Neem. In 1995 the patent was granted to WR Grace and US Department of Agriculture. After severe opposition from various Indian groups, it was cancelled in 2005 on the ground that the invention was not ‘novel’ and was in ‘public use’ in India.

Turmeric was next on the line. Two NRI associated with Mississippi Medical Centre, Jackson was awarded patent on Haldi by USPTO. For ages, this has been in use in India for curing various diseases. Vehement protests by India forced the patent office to‘re-examine’ and it found that it falls under ‘prior art’, thus, not patentable!

Wheat too was patented by Monsanto, European Patent Office (Munich Office) granted the patent in 2003. Later, with the help of PIL in the Supreme Court of India and Greenpeace Organisation, India was successful to get the patent cancelled.

The fragrance of Basmati is still a buzz word in the Patent circle. USA Co. Rice Tec was granted patent of Basmati under the brand name of ‘Texmati’ and ‘Kasmati.’ With much effort India was able to prove that Basmati was long-grain scented rice which has specific geographical origins in India. Both Texmati and Kasmati are none other than variants of Basmati: India has successfully proved that point in the ‘post grant opposition’ appeal. So after much debate and thorough re-examination Basmati patent was partially revoked (grain-specific claim of Rice Tec was struck down by the Patent office) and it was stated, “Rice Tec would not be able to block the country’s (India) Basmati Rice export to US; it could, however, produce ‘similar or superior grains’ outside India.”

Though India is yet to file cases against the patent of Isabgol: Psyllium Husk, Saunf: FENNEL, Dhania: CORIANDER, Jeera: CUMIN, Surajmukhi: SUNFLOWER, Moongphali: PEANUT, Arandi, Reri: CASTOR, Karela (Bitter gourd), Jamun and Brijnal, Jar Amla: Phyllanthus Niruri, various countries of Europe, Asia and USA have already patented these products and they are enjoying the huge economic benefit from these products. [courtesy: Allahabad High Court website]

To some critics, this is happening over and again because of the difference in the patent law of USA and India. According to law firm Sagar & Suri, “India first examines a patent application, then widely publishes it for third parties to challenge, and only then grants the patent. However, the US keeps the patent application a closely guarded secret and grants it without allowing other parties to challenge it. After the patent has been granted, third parties are then allowed to petition against the patent. This shortfall in the patent process in the US that ultimately needs to be revised to prevent future cases like this (Basmati) from occurring.”

In 1995, when ‘modified’ GATT was resurfaced in the form of WTO, various developing nations had shown their concern for their Business and Commerce prospect. Especially Third world countries faced the “intellectual challenge’ from the developed nations. As IPRs are ‘golden hen’ in the business circuit, countries like USA, EU have used their clout and patented various products/processes which in actuality have separate origins. Left wing parties raised these issues of ‘Economic abuse’ when India became member of WTO!

TRIPS agreement is not enough successful in protecting the IPRs of the developing and under-developed nations. Much stricter regulations need to be imposed to prevent the abuse of IPRs.
Experts believe, disclosure of the source and country of origin, evidence of prior informed consent by concerned national authority and fair sharing of benefit must be incorporated in the patent application form itself.

And where India stands today?

In the second amendment of Patent Law of India in 2002, disclosure of source and GI was made mandatory for applying patent within the country. Revocation of patent is incorporated if disclosure is not done or given inaccurately. Further to prevent patents based on TK, which is not always in written form, provisions have been made to include anticipation of invention by available local knowledge, including oral knowledge, as one of the grounds for opposition and for revocation of patent.

For protection of traditional knowledge Biodiversity Act of 1999 has been enacted. Sui Generis System, electronic database of TK (mostly of medicinal plants) i.e. Traditional Knowledge Digital Library (TKDL), power to oppose and give prior approval for patenting by NBA have become operational under this law.

Still, the numero uno ‘Emerging Economy of the world’ is yet to achieve the desired success rate in the protection of IPRs. Indian IPR laws should be more stringent not only in paper, but also in practice!

India has proved its genius and intellectual capital to the western world in various manners. In this new kind of ‘Intellectual War’, the hope is that India will emerge as a Champion yet again!!

Mr. President: Yes, We CAN!!

‘Dream a huge, big and a gigantic dream!’ The first lady of USA has asked the generation Y of India. She knows the power of dream. Her dream, sorry, their dream has given them a new residence at White House: The dream ‘Yes, we can!’
So the dream merchants are now in India: Mr. Barack Hussain Obama and Ms. Michelle Obama. They are selling different kinds of dream in a packaged form. Though, these dreams cannot have any Freudian connotation but diplomatic and political inclination with a touch of Real Politik!
America’s dream of retaining its ‘economic superpower’ status had been shattered due to the recession which was as bad as 1930’s Great Depression but the effect was more on than the ‘30s! The rate of unemployment in USA in October, 2010 is alarmingly high! In every second day many employees are getting pink slips.
This year only, 141 American banks have been shut down, surpassing the worst period of recession! According to the Federal Deposit Insurance Corporation, this failure would cost $254 million! To stabilize the national economy, just before President Obama’s visit to India, US Federal Reserve announced that it would purchase the government securities worth $600 billion. In last quarter US Economy’s growth rate was 2%!
So, quite expectedly America has to strengthen its business ties with India as ‘natural ally’. And Mr. President has come here exactly for that reason. Just think about his contingent, 300 CEOs! It seems like the Chief Executive Officer of the United States of America has arrived!! He has already announced $10 billion trade deals which would create 54000 jobs in America. Economists estimate, to combat the unemployment rate, US needs to create atleast 3 lakhs jobs per month. Thus, it’s a tiny step only!!
For the first time ever, an US president has admitted that “"There (in USA) still exists a caricature of India as a land of call centers and back offices that cost American jobs. That's a real perception." He emphasized on dismissing this ‘old stereotypes’ in order to create jobs, growth and higher living standards for both the countries! The President wants India must lift barriers on certain sectors in relation to foreign investments! (namely retail and others). USA wants the Indian market to sell, he stated that while answering a question by a Mumbai college student.
America is no more the largest economy; it is struggling to fight unemployment and financial bankrupt situation. So, it needs newer market, by whatever means. Just think, an US president is openly admitting standing in a third world country that, “Now because of the rise of India, China and Brazil and some other nations, there is a real competition out there and potentially healthy. This is keeping the US on its toes, because I feel we still can compete." USA, once the monopoly of the economic activities, is now talking about creating a ‘win-win’ situation to sell products to Asian markets and openly admitting the threat from so-called poor nations (barring China ofcourse!).The president is again dreaming of prosperous USA.

And what one section of Indian media is doing? They are simply analyzing that why Obama is not coming out on Pakistan’s terror issue! Why would he do that? First of all, as long as Pakistani terror outfits are there that would help USA to sell sophisticated weapons, war jets to them, especially when their war-market is shrinking! Pakistan would give them similar amount of business, could be more than India in coming days. Pakistan is still limping to have a stable political and economic order, if USA lends them a helping hand (it is doing that), they would grab every single opportunity, much of USA’s interest! So why spoiling a stable relationship?

Moreover, he stated that Islam is a peaceful religion, Jehadis are giving a bad name to it. Rightly so! Thus, Pakistan is not a terror state but it’s not that quick on terror issue. It’s a subtle message to Pakistan as well that, ‘big brother is watching!’ How could a section of Indian media even thought of that Obama would call ‘Pakistan a terrorist state’ like the Indians do? Even I believe, Pakistan is not a terrorist state, peace-loving people live there too, though they are minority!
So, the way Politically, diplomatically and Economically Obama needs to deliver, he has delivered exactly on the expected lines!
Obama, otherwise a damn smart and young President is here to save his country, financially. His charm, easygoing attitude, spending time with underprivileged kids, interaction with the students are just fine! Michelle has become a star by her candour! But how could we forget the post he holds presently? May be he is a far better orator and administrator(?) than the erstwhile president George W Bush, but his policies are on the lines of US imperialism. He himself has admitted that. In his words, “I actually think that the US has an enormous partner in India probably because we have so many Indian Americans, because of the shared values that we have. India is going to be a critical partner with US in the 21st century. That was true when George Bush was President and that was true when Clinton was President. I don't think our firm belief is going to alter in a significant way.”
If you carefully read between the lines, the underneath message will come out that USA’s foreign policy is not changing. And USA knows India’s rightist governments’ love for them!
Yes, Mr. President we are also dreaming big with you, though a slightly different one! USA is bidding goodbye to its imperialism and a new world order is gradually taking place. The harbinger of the CHANGE, we believe, yes, we the Indians, CAN!
Enjoy, incredible India!!