Heroes like Uday Singh, head of mycology and plant pathology at Banaras Hindu University, and Abhay Phadke, founder of Ajay Bio-Tech (India) Ltd, may not exactly be household names in India, but they deserve the nation's recognition for outstanding efforts made in the interest of Indian heritage and culture. It was these two men who were instrumental in winning back the patent for Neem for India last week. In a major victory for India's scientific community, the European Patent Office withdrew a joint patent given to the US Department of Agriculture and the chemical giant W R Grace for their process to extract oil from the Neem tree. The patent was for a method for controlling fungi on plants with the aid of hydrophobic extract of Neem oil.
By the end of last year, American companies had already wrested away the patent rights for traditional Indian crops such as basmati, karela, jamun and brinjal. But when W.R. Grace unethically acquired the European patent for Neem Oil on the basis of a research paper on the same subject as one that had been published over a decade ago by Uday Singh, it was time for a showdown. Singh was aghast to discover that they were awarded the patent as he had written a paper on the effect of Neem extracts and oil on fungi which was published as far back as 1980. Singh's work was first published in 1980 in the journal Mycologia, brought out by the Mycological Society of America. The American research saw the light of day as late as 1989. In 1981 Singh's paper was published in the Australian journal Plant Pathology. In 1984, it was the featured story in the German Journal for Plant Protection and Plant Diseases. An outraged Singh could not understand how the premise of his paper, which was the pioneering study on the fungicidal effect of Neem could be claimed as an original study by W.R. Grace.
The Delhi-based Research Foundation for Science, Technology and Ecology saw the justice in Singh's argument and decided to back him up.. Vandana Shiva of the Research Foundation and Magda Alvoet, former European Parliament member and head of Green Group, an NGO, filed a suit against W.R. Grace and Co and put their case before the European Patent Office in 1996 .A favorable interim judgment from the patent office in 1997 gave them reason to be optimistic about the final outcome.
Singh, who has been working on the anti-fungal activity of Neem products and Neem oil in the control of plant diseases since 1977 and also using it for plant disease control commented that "Neem's medicinal properties have been described even in the earliest Sanskrit medical writing. Many groups from Germany and other parts of Europe have supported my claim as they are aware that Neem is an Indian plant". He saw the case as an opportunity to free at least one indigenous plant from the US patent onslaught. During the course of the five-year-old case, Shiva and Alvoet submitted affidavits from scientists, farmers, practitioners of Ayurveda and other concerned individuals who supported the fight against this immoral and unethical American patent.
Thanks to the efforts of these committed parties, on May 18, the European Patent Office withdrew the joint patent given to the US Department of Agriculture and W R Grace. A four-member panel of the Munich-based EPO upheld objections by three parties opposing the patent granted in 1995 as amounting to "bio piracy." The panel in its ruling endorsed the arguments of the critics of the patent that the process for extracting the oil from the Neem tree was actually in use in India long before the 1994 patent application. The panel also ruled that the patent granted in 1995 is characterized by a "lack of novelty."
Supporting evidence submitted by Pune-based bio-tech entrepreneur Abhay Phadke was instrumental in sealing the decision. On October 27, 1996, Phadke, managing director, Ajay Bio-Tech (India) Ltd filed an affidavit with EPO through the opponent's lawyer Professor Dolder of Zurich. Subsequently, Phadke related how he had developed a process to manufacture Neem oil as a pesticide in 1985, which was startlingly similar to that patented by W R Grace and the United States as their "intellectual property."
Phadke's detailed presentation on the work carried out on Neem formulations provided a solid basis for the case. Phadke's affidavit claimed that as director of Rhone Poulench Agro-chemical (India) Ltd, he had informed his senior officials in Rhone Poulench, Lyon, France about the pesticidal properties of Neem and advised them about the potential to introduce Neem-based products in the international market.
Phadke's evidence was crucial for the examiners to realize that the patent was characterized by a lack of novelty thus making it illegitimate. However the patent for the process still remains in the hands of the American parties in the US. Plans to fight the patent in the US have also been formulated by the winning team.
It is a shame that the Indian Government or its institutions hardly provided any aid in this battle. A majority of the funding was provided by the European NGOs. If the administration does not wake up to the reality that India's cultural and scientific heritage is being stolen from right under our noses, then Indians will soon be facing the event of having to pay Americans to utilize their own indigenous biological wealth.
Courageous scientists like Phadke and Singh cannot fight the patent onslaught unleashed by powerful and moneyed American companies by themselves alone. As Singh says: "Nowadays, one small Neem plant is being sold for $60 in American markets. It is our plant. We have already lost basmati, karela, brinjal and jamun to them. I didn't want us to lose Neem as well."
On his return Uday Singh brought back a poignant symbol of victory ; a tiny Neem sapling in his hands.
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