Among the developed countries, Australia and Canada have enacted PBR legislation recently. Basing on such models, we can develop a system characterised by ease of implementation, transparency in operation and social equity. An inter-disciplinary dialogue held at Madras in January 1994 offered suggestions for a PBR legislation (Swaminathan, 1994, however, dated 1993). The problem is formidable as many cultivated species of plants have several botanical varieties and numerous cultivars and land races. For example, there are over 100,000 cultivars of rice (Swaminathan, 1993) and none of them has been registered in an internationally acceptable manner. The Madras draft proposed that the legal instrument may be titled "Plant Varieties Recognition and Rights Act". It proposed the Ministry of Agriculture, and co-operation of Government of India, as the principal implementing agency. Central and State level offices are to be set up under a Commissioner of Plant Variety Rights (PVR), supported by Registrars of PVR at the State level. An autonomous ‘National Institute for Plant Variety Testing and Evaluation’ and an autonomous ‘Centre for Analysis and Resolution of Conflicts’ are also proposed to be set up. The ‘National Bureau of Plant Genetic Resources’ (NBPGR) and similar appropriate centres for vegetatively propagated material, will have to be organised as repositories of seeds and planting material of the varieties submitted for recognition. Those who submit proposals for recognition are expected to provide the complete details of the cultivars they wish to register. The procedures adopted in this regard should conform to the provisions of the International Code of Nomenclature of Cultivated Plants (ICNCP), the international rules that regulate names and registration of plant varieties.

All this may seem unconnected to medicinal plants, but actually not so and certainly will not be so in future, when new varieties of medicinal plants are developed through biotechnology.

PROBLEMS ASSOCIATED WITH RIGHTS ON MEDICINAL PLANTS

It should be noted that the provisions discussed above, take care of new varieties of medicinal plants, along with crop plant varieties, but not their products or uses.

The following are some of the issues that complicate the protection of the rights on medicinal plants. Some of these issues are also common to crop plant varieties, to an extent.

a) Information published in any language, such as even that in the classical indigenous medical texts, or contemporarily published prior to a specified date, cannot be patented.

b) Currently it is not really possible to patent biological organisms, as it will lead to many complicated situations and disputes. For example, a mere modification of a few genes that do not affect the existing uses of a species, would make it possible to register it as a new organism. Questions, whether it is ethical at all to patent organisms, have also been raised, in the face of patent applications for human-animal chimaeras. The US Patent and Trade Mark Office, asserted that it can stop issuing patents on moral grounds (Nature, 392, 423, 1998). On the other hand, the European Patent Office is likely to lift its own 1995 martorium on the patenting of plants and animals (Nature, 393, 200, 1998). The issue of patenting organisms, natural or experimentally produced, is in deep controversies, that are unlikely to be settled in the near future.

c) If the plant species sought to be improved is an endemic to a country, the rights on its use may, some how, be protected. When a species is distributed in two or more different countries, either as native or naturalised taxon, as in the following species, which are popular in indigenous medicine in India, where should the rights go?

Adhatoda vasica Indo-malayan

Aloe vera native of Canary Islands, cultivated widely

Azadirachta indica widely cultivated in tropics

Cassia fistula China, Indo-malayan

Catharanthus roseus native of Madagascar, cultivated widely

Costus speciosus Indo-malayan

Gymnema sylvestre tropical Africa, Asia, Malaysia

Holarrhena antidysenterica Indo-malayan

Ricinus communis African, cultivated widely

Santalum album south Indian, cultivated in Africa, Australia

Saraca asoca Indo-malayan

Withania somnifera from Canary Islands to the Indian region

There are innumerable examples of important medicinal plants of wider distribution, that prevents their ascribal to any particular country. The best recourse then is protecting the rights on the physical plant material on the grounds of geographical indication (occurrence), under the TRIPS regime, as we cannot prevent some other country from utilising the species that grow in her own territory.