Development & Aid, Environment, Tierramerica

Biological Patents Yield Unequal Benefits

BONN, May 26 2008 (IPS) - The existing patent system does not require the petitioner to document the origins of his or her knowledge or innovation, which experts say is a boon to biopiracy.

The medicinal or nutritional powers of many plants can lead to enormous economic benefits, which put patents for naturally existing plants at the center of an ethical, commercial and legal debate.

One example is the Hoodia gordonii bush, which grows in arid regions with high saline soils, such as the Kalahari Desert in southern Africa. For centuries, numerous indigenous peoples of Botswana, Namibia and South Africa, like the San, have used this plant to curb appetite and relieve thirst.

Until less than four decades ago, the plant was known only by the bush people, the original inhabitants of the region, who call the plant “kowa”.

But in the 1970s, South African soldiers discovered its benefits on their marches of occupation in Angola, observing how their bush guides consumed the plant and were able to withstand several days without water or food.

In 1996, scientists at the South African Council for Scientific and Industrial Research were able to isolate the plant extract, which they called P57AS3, with the properties already known by the bush people, and recommended to reduce caloric intake.

In 1997, Phytopharm laboratory bought the license to develop and market hoodia. Today, several biotech giants, like Pfizer and Unilever, share the benefits.

Only in 2009 will the local peoples have rights to any financial compensation.

There are many similar examples of biopiracy, in which researchers or companies claim unauthorized ownership of living organisms in developing countries and the rights to collective knowledge in products and services.

This practice must be eliminated and replaced with clear international rules, agree experts and government representatives. This is one of the proposals of the United Nations Convention on Biological Diversity, in force since 1993.

“The fair participation of the peoples of the countries of the South in the economic benefits derived from marketing their knowledge and the biological resources of their regions is a central problem to be resolved in today's debates,” Konrad Übelhör, head of biodiversity for the German aid and development agency GTZ, told Tierramérica.

Übelhör noted that in addition to sharing the benefits, the peoples of the South have the right to the transfer of technology and education to modernize efforts to obtain the plant properties that are part of the inventory of their traditions.

Andreas Drews, also of GTZ, told Tierramérica that a fundamental cause of biopiracy lies in the international legal framework of patents.

“The applicant for a patent currently does not have to document the origins of his or her knowledge,” said Drews. “For that reason alone, we do not know the true dimension of the biopiracy problem.”

“To grant a license or a patent, it should be required that the beneficiary document the origins of the active agents of the products,” added the expert.

Paragraph 5 of Article 15 of the Convention on Biological Diversity establishes that the traditional doctors and the governments of their countries, who for centuries have employed the biological resources specific to their regions, should give “prior informed consent” for the international commercial use of those resources.

The biotechnology multinational corporations argue that such consent is not necessary to market medicinal plants and their derivatives, or they allege that it is often impossible to obtain it.

“Biopiracy violates the United Nations Declaration on the Rights of Indigenous Peoples (2007),” said Michael Frein, of the Protestant Church Development Service (Evangelischer Entwicklungsdienst).

However, neither the declaration nor the Convention is legally binding, so there is almost no possibility of defending oneself against biopiracy, he told Tierramérica.

Furthermore, governments of industrialized countries, such as the United States, refuse to ratify the Convention.

But if, for example, U.S.-based companies want to exploit seeds registered with the UN Food and Agriculture Organization (FAO), they have to sign obligatory contracts to distribute royalties to the official owners of those seeds.

Biopiracy and the means to fight it were debated in Bonn at the May 12-16 meeting of the countries party to the Cartagena Protocol on Biosafety, an instrument of the Convention on Biological Diversity, and will be part of the talks of the 9th Conference of Parties to the Convention, which lasts here until May 30.

The delegates are attempting to adopt international obligatory rules for fair access to biodiversity resources and the equitable distribution of their benefits; for the safe use of genetically modified organisms; and for achieving the goal set by the 191 countries party to the Convention: reversing by 2010 the current pace of the loss of flora and fauna species to extinction.

Unanimity is required to establish norms in these areas.

Delegates from Australia, Canada and Japan, and representatives of the biotech giants are opposed to an international legal system against biopiracy. But Brazil, India, Indonesia, Malaysia and South Africa insist on the need to regulate the commercial use of genetic resources and to establish mechanisms of compensation.

For the GTZ's Übelhör, “it's natural” that the poor countries demand a share of the benefits, since “80 percent of the biodiversity is found in developing countries.”

“In the access to biodiversity and its ecologically sustainable exploitation lies the solution to the fight against hunger,” he said.