Background paper on†the†NEEM† patent† challenge.

On May 9th and 10th the European Patent Office in Munich will conduct an "Oral Proceeding" to hear the arguments of both sides in the case of a patent granted to the United States Department of Agriculture and the multinational corporation W.R. Grace for a method of controlling fungi on plants by the aid of an extract of seeds from the Neem tree.† The hearing provides an important opportunity to examine the problem of BIOPIRACY, the appropriation of biological resources and knowledge from the South through the patent system.

Facts 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."

†††† Counsel for the Opponents in the Oral Proceedings will be 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 40 neem patent applications at various stages in the European Patent Office, and 90 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 May 9th and 10th involves a simple oil-based extraction of coarsely ground seeds from the Neem tree.†††

A list of all the Neem patent applications at the European Patent Office will be available at the Press Conference or can be ordered from one of the numbers below.

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 neemís 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 companiesí 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.†

Organizations supporting the NEEM patent challenge:

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).

For further information, call:

From May 8th - 10th:† +(49 0)172 896 38 58

Before and after, telephone one of the Opponents:

Parts of this background information were drawn from:

The above publications will be available at the Press Conference in Munich on May 8th or may be ordered from RFSTE, !-60, Hauz Khas, New Delhi - 110 016, India.

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