Pillaging of African biological resources continues

Riaz K. Tayob

A new study documents additional cases of suspected bio-piracy in Africa are based on a preliminary study of patent applications lodged and patents granted in the US, EU and elsewhere.

As governments resumed negotiations on an international regime on access and benefit sharing under the United Nations Convention on Biological Diversity on 9 November in Montreal, with combatting bio-piracy as one major goal, a report has found seven new suspected cases of bio-piracy of African biological resources and traditional knowledge.

These suspected cases take the form of applications for or grant of patents in the United States, Europe and elsewhere, adding to the thirty six cases found in an earlier research project.

The report, “Pirating African Heritage: The Pillaging Continues” by the South African NGO, the African Centre for Biosafety, is a continuation of its 2006 study “Out of Africa: Mysteries of Access and Benefit Sharing” which found suspected bio-piracy across the continent [see SUNS #5984 dated 13 March 2006].

The seven new cases of suspected bio-piracy in Africa are based on a preliminary study of patent applications lodged and patents granted in the US, EU and elsewhere. Further investigation is merited by African governments, the report states, to determine conclusively whether bio-piracy has occurred and what action to take.

The seven cases include claims from universities, government departments as well as small and large companies. The claims relate to a wide range of products including for anti-aging (for example, by luxury goods maker Louis Vuitton under its Christian Dior label), skin-care, sexual dysfunction, viruses and vaccines, insect repellents and possible cancer treatments.

The report states that the seven case studies on patent applications or patents granted do not meet the fundamental requirements of patentability: novelty (the invention cannot duplicate something that already exists) and inventive step. The key question that must be asked is whether a patent examiner would have granted the patent had the existence of prior art been disclosed to them [as this obviates novelty].

The Patent applicants, the scientific community, business and industry and government agencies in the North generally, the report states, do not disclose the existence of prior art in their patent applications.

Furthermore, patent examiners rarely consider the traditional knowledge held by local and indigenous people and published in journals, databases and periodicals. The report charges that the patent system in Europe and the US are “being used to promote the misappropriation of traditional knowledge and biological resources from the South”.

The report contends that the illegality of a patent cannot be cured by the existence of prior informed consent, benefit sharing or so-called fair trade agreements.

The case studies have patents pending or granted before the US Patent and Trademark Office (USPTO), the World Intellectual Property Organization (WIPO), or the European Patent Office (EPO) and some include stated potential applications in South Africa and the regional patent offices of the African states that are Parties to OAPI and ARIPO.

[OAPI - Organisation Africaine de la Propriete Intellectuelle (African Intellectual Property Organization), based in Yaounde, includes Benin, Burkina Faso, Cameroon, Central African Republic, Congo, Cote d’Ivoire, Equatorial Guinea, Gabon, Guinea, Guinea Bissau, Mali, Mauritania, Niger, Senegal, Chad, and Togo.

[ARIPO - African Regional Intellectual Property Organization, based in Harare, includes Botswana, the Gambia, Ghana, Kenya, Lesotho, Malawi, Mozambique, Namibia, Sierra Leone, Somalia, Sudan, Swaziland, Tanzania, Uganda, Zambia and Zimbabwe.]

In one case study, Bayer Consumer Care (Germany) seeks patents on the Madagascan Vernonia Extracts for skin treatments. The claim is to the use of any extract from any plant of the Vernonia genus in Madagascar for “improving the skin status”. In addition, Bayer makes specific claim to eight Vernonia species.

The plant extract is wholesaled by Bayer to companies that use it as an ingredient in upmarket retail products. The creams with a small amount of extract sell for between US$49-79 for a one half to one ounce (14-28 gram) container. The report states that with Madagascar’s per capita gross domestic product of US$377 (2007), it implies that an average Malagasy could exhaust his or her entire annual income on seven jars of the cream containing about 2 grams of the relevant ingredient (“Ambiaty”).

The report discloses, on the alleged novelty of Bayer’s patent claims, the documented traditional use of the ingredient in herbal steam baths, and its use in dyes. Bayer’s “patent application makes no reference to these and other traditional uses of Ambiaty.” It also criticises the scope of the application as being “remarkably broad”, pointing out that Vernonia is used all across Africa as medicines.

On the face of it, Bayer’s patent claims appear to be bio-piracy, the report states. The company claims that its business is ethical and beneficial for Africa, its Malagasy corporate collaborators’ plants are sustainably harvested and that a “premium” over market price is paid for the raw plant material. A “premium” is paid in the form of new classrooms and school supplies for children.

The report notes also that Serdex, Bayer’s French subsidiary that produces the extract, is a member of the Swiss-based Union for Ethical BioTrade. This Union is a private outgrowth “BioTrade” Initiative of the United Nations Conference on Trade and Development (UNCTAD) and promotes “sourcing [of natural products] with respect”.

When accepting Serdex as a member of the Union, BioTrade identified unspecified areas for improvement. While the Union has a specialist in intellectual property issues, it is unclear if its audit extended to analysis of the ethics and novelty of Bayer’s patent claims, which appear dubious, according to the report.

The report recommends that Bayer be asked to back its fair trade claims with real numbers - what prices are paid per kilogram to plant collectors, what is the yield in plant extract, and how much income does the company and its corporate customers derive from sales.

On Bayer’s patent applications, the report concludes that there is strong evidence that the company is patenting traditional medicinal knowledge and resources. The claims are also very broad, applying to many species that are also found in other parts of Africa and which may also constitute bio-piracy.

Another case involves a patent application by Dicotyledon AG (Sweden) on extracts from Neobeguea mahafalensis, a tree commonly called “handy” which extracts, it claims, have a “sexual enhancing effect” and can be “used for treatment of sexual dysfunction”.

The report states that Dicotyledon may want to claim it as its own but it has long been used as an aphrodisiac in traditional Malagasy medicine. There is no indication in Dicotyledon’s patent application or on its website that it has any intention of sharing its bounty on equitable terms or otherwise.

However, the application does make the concession that N. mahafalensis is already used as an aphrodisiac in Malagasy traditional medicine and lists at least eleven citations of traditional use for sexual functions in the scientific literature.

The report states that Dicotyledon advances its patent novelty argument by insulting the holders of the knowledge of the plant: “Dicotyledon states that Malagasy traditional healers use so many plants for sexual enhancement that not all of them could possibly work.” And further claims that Malagasy healers provide inaccurate information to researchers and that they lack scientific rigour in identifying and characterizing plants.

It attacks traditional medicine by asking patent examiners to ignore documented traditional use by stating that “reports on presumed medical effects of plants based on indirect information obtained from local traditional healers and alike is highly unreliable and can’t be used in any practical sense for treatment of medical conditions.”

- Third World Network Features