Neem - intellectual property rights (IPR)

The commercial development of neem-based insecticides has raised some interesting legal issues, after a patent was granted to an American company, W.R. Grace & Co, for a neem-based insecticide. The patent concerns extraction of stable compounds that deter insects from eating plants.

Controversy

Observers immediately questioned whether the patent covered a truly new process. Novelty is an essential property of a patented invention. A hearing at the European Patent Office in 2000 established that the European patent (EP0436257) was invalid, because the use of hydrophobic elements in neem, for pest control, was already known in India. The patent was revoked. However, the patent issued by the United States Patent Office in 1992 remains valid.

Wider questions

The neem patent case is more complicated than sometimes presented. It was not an attempt to patent the tree itself, but was clearly regarded by the European Patent Office as an attempt to patent indigenous knowledge. However, the case is one of a number that raise wider ethical and legal questions about patenting uses of plants that originate in other countries, or which have traditional uses which have not been written down.

These cases have spurred the Indian government and other countries to take a much more proactive approach to recording indigenous knowledge (IK). If IK is recorded in written form, it will be easier to demonstrate that proposed patents do not represent novel uses.

It should be noted that in India itself, numerous patents have been granted on specific aspects relating to use of neem.