Patent

Guest Post: Recent Developments in the "Arogyapacha: Kani" Case


We bring you a guest post from Rohan Saha, a final year student at the Nalsar University of Law, Hyderabad, on some recent developments in the Arogyapacha case, as reported in this Tehelka article here. On behalf of SpicyIP, Rohan also spoke with Dr Pushpangadan (ex TGBRI member who was the key person who drew up the benefit sharing proposal involving the Kanis: a proposal that has been lauded by international bodies such as the UN, World Bank etc) .

Recent Developments in the “Arogyapacha: Kani” Case

In an earlier post, Shamnad discussed the case of the Kani’s wonder berry – the “Arogyapacha”. For those who are outside the loop regarding the matter: the “Jeevani” drug, was developed by scientists at the Tropical Botanic Garden and Research Institute (TBGRI), based on the tribal medicinal knowledge of the Kani tribe of the Western Ghats and subsequently became a worldwide phenomenon with anti-fatigue, immunity-enhancing and liver-protecting properties (the drug also has a couple of patent / trademark controversies to its credit as noted in an earlier post, after all what’s a wonder drug if it’s ownership isn’t disputed?) .

Most people noted the benefits that accrued to the Kani tribe as a result of the licensing agreement between the TBGRI and the Arya Vaidya Pharmacy (AVP). The license fee and two percent royalty (for a period of ten years) on the profits were to be shared equally by the TBGRI and the Kani tribe. In addition, the plant itself was to be procured by the AVP exclusively from the Kani tribe through a trust which was formed for the purpose.

Unfortunately this arrangement hasn’t proved to be beneficial to the tribe. The tribe has been receiving no benefits from the sale of the drug. Kuttimathan Kani, who was one of the three people who introduced the herb to the world, is suffering with his wife and daughters who are seriously unwell. He has no money for their treatment and his family of six subsists solely on the basis of government rations and forest produce.

A recent article by Tehelka, explains that the patent (which was a process patent) has expired and the AVP as well as 11 others are now producing the drug while the tribe is completely cut off from the benefits. The trust, which was started with a corpus of Rs. 10 lakhs has exhausted its funds and is subsisting only on the basis of the royalties paid; it is barely enough to pay the bills. Furthermore, the trust members, as per its President’s admission, are in the dark about the agreement between the TBGRI, AVP and the Kani tribe. Besides the Rs. 10 Lakhs and a Rs. 2.5 Lakh royalty, received between 1999 – 2005, the trust has received no further funds even though “Jeevani” has become wildly successful (it sells for about $35 for 100 capsules or Rs. 160 for 75gm jars).

The deal had faced troubled waters since its inception when the Kerala forest department refused permission to the Kani tribe to either cultivate or collect the “aarogyapacha” plant and sell it to AVP. Since the plant was endemic the forest department even turned down an offer by AVP to pay the Kani initial seed money for cultivation, and enter into a buy-back arrangement for five tonnes of leaves a month (by virtue of the Forest Act, 1927 the Department is entitled to treat the forests as its personal estates). Subsequently a cultivation plan was introduced due to the intervention of the TBGRI.

According to Tehelka, Dr Pushpangadan, ex – director of the TBGRI (who was the director when the license agreement was signed) when asked about the state of the trust and the tribe, blamed the lack of education for the failure of the Kani tribals to benefit from the demand for “aarogyapacha” and charged that government with the duty to ensure that the tribe receives the benefit.

When we spoke to him, Dr Pushpangadan informed us that the patent expired in December 2007, as did the license agreement. Since then many companies have advertised “Jeevani” but he claims that none of these companies have actually started producing the product. The AVP has ceased production since the license agreement has expired and will be paying royalty on the stock they have left and this royalty will be shared between the TBGRI and the trust as per the license agreement.

The TGBRI itself will now start producing the drug and wishes to enter into a similar license agreement with the Kani tribe, but Dr. Pushpangathan thinks this will be a tough proposition since some members of the tribe now oppose the trust. The root cause of this opposition is the recent election which was held in order to elect a new board for the trust. The ex – board was ousted in the elections and the members of the ex – board now oppose the actions of the trust! Dr. Pushpangadan mentioned that the TGBRI has attempted to sort out matters between the tribe members but mediation has failed.

The agreement was hailed as a step forward in Indian traditional knowledge; perhaps the short term benefits of the scheme overshadowed the long term considerations. Even at the agreement’s inception there were numerous concerns about informed consent of the tribe (only three members of the tribe introduced the plant to the scientists without consultation with the rest of the tribe and others in the tribe were apparently excluded from the process), nature of the benefit conferred (whether the alliance would continue beyond the ten years and whether there would be non – monetary benefits) and the identification of beneficiaries (many tribe members have complained that they have no knowledge about the trust, the drug “Jeevani” or the proposed benefits) now these very considerations are being cited by the tribe members as allegations against the TGBRI, but with political motivations.

So who do you blame? Looking at it from the point of view of the CBD and the National Biodiversity Act, the license agreement failed significantly to benefit the traditional knowledge holders in an equitable manner, but at the same time it should be taken into account that one of the reasons for its failure is the tribe itself.

In this case, the role of IPR has also emerged as a crucial impediment. The fact that TBGRI failed to protect “Jeevani” as a trademark and that no product application was filed even as a “mailbox” after India signed the TRIPS led to free exploitation of the product at a later stage and this exploitation excludes the tribe.

Barring IPR, the illiteracy of the Kanis and the infighting in the tribe made them vulnerable targets and they failed to realize the potential benefits which could have accrued to the tribe. Perhaps the government should have stepped in to sort out matters and ensure that the benefits are enjoyed by the tribe as a whole but at the end of the day, the internal working of the tribe cannot be externally dictated and the tribe has to take responsibility as a whole for its failure to capitalize on an excellent opportunity.

Finally, the initial problem that the agreement faced was simply due to the fact that an essential actor, in the form of the Forest Department, was excluded from the equation and this should be kept in mind while formulating any traditional knowledge agreement on the basis of forest resources.

Shamnad Basheer

Shamnad Basheer

Prof. (Dr.) Shamnad Basheer founded SpicyIP in 2005. He's also the Founder of IDIA, a project to train underprivileged students for admissions to the leading law schools. He served for two years as an expert on the IP global advisory council (GAC) of the World Economic Forum (WEF). In 2015, he received the Infosys Prize in Humanities in 2015 for his work on legal education and on democratising the discourse around intellectual property law and policy. The jury was headed by Nobel laureate, Prof. Amartya Sen. Professional History: After graduating from the NLS, Bangalore Prof. Basheer joined Anand and Anand, one of India’s leading IP firms. He went on to head their telecommunication and technology practice and was rated by the IFLR as a leading technology lawyer. He left for the University of Oxford to pursue post-graduate studies, completing the BCL, MPhil and DPhil as a Wellcome Trust scholar. His first academic appointment was at the George Washington University Law School, where he served as the Frank H Marks Visiting Associate Professor of IP Law. He then relocated to India in 2008 to take up the MHRD Chaired Professorship in IP Law at WB NUJS, a leading Indian law school. Later, he was the Honorary Research Chair of IP Law at Nirma University and also a visiting professor of law at the National Law School (NLS), Bangalore. Prof. Basheer has published widely and his articles have won awards, including those instituted by ATRIP, the Stanford Technology Law Review and CREATe. He was consulted widely by the government, industry, international organisations and civil society on a variety of IP issues. He also served on several government committees.

One comment.

  1. AvatarYeshwanth

    These Articles are all good, but not well researched or thought out before penning down. There are several aspects that need to be looked into before pointing fingers. I can tell with authority that the only loser out of the TBGRI agreement has been the TBGRI itself because the scientists there have been demoralised because of all the criticism that is flowing from researchers sitting in air conditioned cabins who would not even have known Kani as a tribe and neither would have the media or for that matter anybody cared what happens with the life of these tribals. The truth in my statement can be understood by the fact that for more than 10 years after the Kani agreement, we have not had another benefit sharing model. I have worked with international Agencies, government and with corporates and very well know where to find a balance, a balance that most people who get into the business of criticism will easily miss out on.

    Reply

Leave a Reply

Your email address will not be published.