Biopiracy: plundering the treasure chest of traditional knowledge?

Biopiracy refers to the practice of commercially developing naturally occurring biological materials, such as plant substances or genetic cell lines, by a technologically advanced country or organisation without fair compensation to the peoples or nations in whose territory the materials were originally discovered.

Inevitably, this leads to a conflict of interest between foreign multinationals attempting to enforce IP rights, and developing countries trying to protect their cultural heritage. Many countries with a long history of traditional knowledge are hampered by the fact that very little of it is accessible in written form. Instead, knowledge is simply passed on by word of mouth from one generation to the next, making it incompatible with modern IP laws, both in terms of ownership and prior art effect.

Various initiatives have been adopted in order more fairly to reflect the contribution traditional knowledge makes to the modern world, particularly in the field of medicine. These include creating digital knowledge libraries to ensure that traditional knowledge has a prior art effect, and collaborative projects or benefit-sharing arrangements with local indigenous communities.

New legislative initiatives have also been introduced that dovetail with existing IP laws, such as the recent Nagoya Protocol on Access and Benefit Sharing.

Historically, the battle against biopiracy has been fought by revoking unwarranted IP rights in the courts, which proved costly and time- consuming. After fighting hard for the revocation of the tumeric and basmati patents granted by the USPTO, and the neem patent granted by the EPO, India initiated a project to create a Traditional Knowledge Digital Library (TKDL).

The TKDL provides a 30 million-page electronic database of more than 200,000 treatments, especially medicinal plants and formulations used in various Indian systems of medicine. The project involved meticulously transcribing more than 148 ancient books into five different languages.

The idea is not to restrict the use of traditional knowledge, but to ensure that patents are not granted erroneously due to lack of access to prior art, or for minor modifications of what was already known. India has now signed access agreements with a number of other international patent offices, allowing examiners to utilise the TKDL for prior art searches and examination.

To date, it is understood that well over 50 pharmaceutical patents worldwide 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. The 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 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.

The 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.

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 after 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.

The 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.

Zöe Clyde-Watson is a partner at D Young & Co LLP. She can be contacted at: zcw@dyoung.co.uk