BIOPIRACY
powder. A US patent was granted for “red herbal dentifrice” in June 2010, but experts in Ayurvedic medicine claim that the ingredients have been used for the same purpose for hundreds of years. Indian activists have urged their government to intervene, alleging that this is the latest act of biopiracy in which Western corporations plunder techniques, plants or genes used in the emerging world for the purposes of commercial gain.
In fact, India is becoming increasingly vocal over the alleged pillaging of ancient knowledge, and has joined sixteen other nations to form the Group of Like-Minded Megadiverse Countries, an alliance that has accused richer countries of tapping the emerging world’s natural resources for medicines and cosmetics. Te group has been created to act as a mechanism of co-operation to promote interests in biological diversity, the protection of traditional knowledge, access to genetic resources and the equitable sharing of benefits derived from their use.
Other countries, such as Australia, are tapping into indigenous knowledge by making use of benefit-sharing arrangements under existing IP legislation. For example, the Jarlmadangah Burru Community in Western Australia holds a joint patent for a traditional Aboriginal pain-killing medicine. Local members of the Aboriginal community had for many generations used bark from the freshwater mangrove tree (Barringtonia acutangula) to relieve pain. Chemists from Griffith University successfully isolated several new natural products from the tree’s bark, which led to a joint patent for the active compounds and their therapeutic use as analgesics.
have been withdrawn or revoked based on information present in the TKDL, and similar databases now exist elsewhere in the world.
In March 2011, India’s Council of Scientific and Industrial Research co-organised a conference with WIPO in order to disseminate information about TKDL as a model for the protection of traditional knowledge. Several other regions rich in traditional knowledge have expressed an interest in replicating the TKDL model.
In spite of the TKDL, the conflict between IP rights and traditional remedies continues, as illustrated by a recent legal battle between India and the US. Te world’s largest producer of toothpaste, the Colgate Palmolive Company, has been involved in a dispute over its attempt to patent a herbal tooth cleaning
www.worldipreview.com
Similar benefit-sharing agreements with scientists have been signed with indigenous groups in Canada and South Africa. However, funding for such projects is scarce and securing any sort of commercial return for either party is heavily dependent on long term investment from the biotech/pharma industry.
While benefit-sharing appears to offer an equitable solution to the conflict between indigenous knowledge and the commercialisation of modern medicines, loopholes can still be exploited. Indeed, a dispute recently erupted in Australia aſter an American cosmetics company (Mary Kay) applied for a patent based on the extraction of anti-oxidant ingredients from the Kakadu plum. Local indigenous groups claimed that the plum had been used as a traditional medicine for many years and that Mary Kay had not consulted them about any benefit-sharing agreements in relation to commercialisation. Amid strong opposition from local groups, Mary Kay defended its use of the plum on the grounds that it had obtained it from an authorised
supplier who had harvested it under licence, and that no-one had previously used the ingredients in a cosmetic formulation. IP Australia is yet to issue a decision, but it seems certain to be an interesting test case. It is noteworthy that the US is one of only three countries not to have signed up to the UN Convention on Biodiversity, thus US companies can avoid the scrutiny to which other companies are subjected.
A more recent development has seen criminal charges for biopiracy brought in India in relation to the nation’s first genetically modified food, Bt Brinjal (eggplant). In an unprecedented decision earlier this year, the National Biodiversity Authority of India initiated legal action against Mahyco/ Monsanto and their collaborators for using local brinjal varieties in developing Bt Brinjal without prior approval from the authorities. Te law mandates that when biodiversity is to be accessed for commercial research, local communities who have protected local varieties and cultivars for generations must be consulted and if they consent, benefits must accrue to them per the internationally applicable Access and Benefit Sharing Protocol.
To date, there is no global framework for the protection of traditional knowledge. While there are various different legislative initiatives in place, there is no ‘one size fits all’ solution and the above models will need to be tailored to individual countries. Moreover, although projects such as the TDKL may help prevent the grant of invalid patents, there are still cultural concerns that documentation projects allow free access to traditional knowledge without necessarily having prior and informed consent from the indigenous communities. It seems inevitable that the debate will continue for some years. n
Zöe Clyde-Watson is a partner at D Young & Co LLP. She can be contacted at:
zcw@dyoung.co.uk
Zöe Clyde-Watson has a PhD in organic chemistry and her areas of expertise include pharmaceutical and veterinary chemistry, therapeutic/diagnostic methods and polymers.
World Intellectual Property Review November/December 2011
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