New Report Points To Widespread Biopiracy In Africa

NEW REPORT POINTS TO WIDESPREAD BIOPIRACY IN AFRICA by Chee Yoke Heong

Biopiracy is alive and kicking.

As governments from more than 100 countries hunkered down in January 2006 to try to agree on international rules to regulate bioprospecting and ensure that fair and equitable benefits return to countries and communities that provide biologcial resources and associated traiditonal knowledge, a new report calling for investigations into potential Africa-wide biopiracy made its debut in conjunction with the meeting.

The report, entitled "Out of Africa: Mysteries of Access and Benefit Sharing", was released by the Edmonds Institute and the African Centre for Biosafety, both public interest, non-profit groups in the United States and South Africa, respectively.

The report made a strong impact on delegates at the 4th Meeting of the Working Group on Access and Benefit Sharring in Granada, Spain in January 2006. This was the second session to negotiate an international regime under the Convention on Biological Diversity (CBD).

The biological resources concerned are for medicinal, agricultural, hoticultural and cosmetics uses. In most cases there are no evidence or even information of benefit sharing agreements. Some of the patents claimed appear highly questionable too. See the Box below for a list of findings that is suggestive of biopiracy. Each case thus requires further investigations.

Mariam Mayet, Executive Director of the African Centre for Biosafety spoke at a panel discussion on the first day of the Granada meeting where the report was first publicly announced. “In just one month of searches of various databases including the website of the US Patent and Trademark Office, we discovered these cases across the African continent. It was a shock to see the number of patents given or being claimed,” she said.

Co-panelist Dr. Ossama El Tayeb, head of the delegation of Egypt at the negotiations called the report the tip of an iceberg. There were five possible cases of biopiracy involving Egypt in the report. Reports such as this emphasised the urgency for a legally binding global treaty to prevent biopiracy. Dr. Ossama pointed out that from the list it was clear that derivatives of biologcial resources were very much the target of bioprospecting for commercial value, and this is why the international regime must include derivatives. Developed countries and their pharmaceutical, agriculture and biotechnolgy industries are vehemently against inclusion of derivatives in the scope of the international regime.

A USPTO official who was in the audience remarked that it was the first time he had seen the report and that he would look further into it.

1 Edmonds Institute president/director Beth Burrows described in the foreword that the 42- page document as "a litany of cases of suspicious biodiversity acquisition, " and report author Jay McGown contended that, "It's not about suspicious acquisition. It's about cases of biopiracy, or, to use the more old-fashioned term, 'theft'."

"It's a free-for-all out there," McGown added, "and until the CBD solves the problems of access and benefit sharing, the robbery will continue."

The publishers contended that the difficulties embedded on McGown’s task were huge and not always surmountable since he only spent a month researching the book during which he scorched the databases available on the internet. Despite all the difficulties, McGown did uncover a great deal that is suggestive of biopiracy, While his report may seem preliminary and his sketches incomplete, he has indicated potential contacts in each case, for verifying and clarifying and extending much of what he has found. It is obvious that much remains to be done and hopefully further research will be conducted by others.

"Biopiracy", according to the publishers is a term that refers to "the acquisition of biodiversity, i.e., biological material (plants, animals, microorganism, and their parts), or of traditional knowledge related to that biodiversity, without the prior informed consent of those whose biodiversity or traditional knowledge has been taken."

One of the best known and most recent cases of biopiracy had to do with Hoodia, an appetite suppressant that capitalized on the traditional knowledge of the San people. Developed and patented by the South African Council for Scientific and Industrial Research (CSIR), exclusive rights were sold to a British company. It was only after worldwide outcry that a percentage of the royalties - a miniscule percentage - came to the San in the form of a trust. The Hoodia case is still cited as a prime example of inadequate benefit sharing and questionable prior informed consent.

In a press release Mariam Mayet said, "When you look at what has been taken in the recent past from Egypt to South Africa, it runs the gamut from biodiversity used for medicine to biodiversity used for agriculture, horticulture, cosmetics, and industrial purposes. It's unbelievable how much has been taken without a public accounting and probably without any permission from the communities and peoples involved".

"There's a huge amount to be accounted for," Burrows noted. "It's not easy to prove biopiracy. Where contracts are not published and national rules of access and benefit sharing may not exist or are not attended to by bioprospectors, or the companies and institutions they represent, it is difficult to verify claims of theft, even when you catch the thieves with the booty in hand, . . . or in their patent portfolios."

Mayet added that, "For ABS according to the vision of the CBD, one should be able to verify that in each instance of use, particularly where biodiversity and/or its derivatives have been patented, the whole process began in prior informed consent and a benefit sharing agreement from the people whose biodiversity has been accessed."

2 Although the CBD addressed the terms and conditions for access to genetic resources and benefit-sharing in the original treaty that came into force in 1993, it was not until 1999 that efforts were made to operationalize the treaty's provisions. The process was taken forward in negotiations at the 2002 World Summit on Sustainable Development, held in Johannesburg, and continued at the 4th Meeting of the ABS Working Group held in Granada, Spain in January 2006.

Many developing countries’ delegations from Latin America, Africa and Asia spoke out on biopiracy during the week’s tough negotiations, as they pressed for international regulation in the face of strong resistance from developed countries, with Norway as the exception.

...... BOX 1

Below is a list of findings by McGown of cases that is suggestive of biopiracy. "Out of Africa: Mysteries of Access and Benefit Sharing" is available on the Edmonds Institute website: http://www.edmonds-institute.org

Medicine from Out of Remarks Biodiversity Diabetes Drug Produced by Kenya Patent held by Bayer. No a Microbe evidence of a benefit- sharing agreement related to the microbe from which the drug was derived. A Treatment for Diabetes Libya, Egypt Patent held by Phytopharm Plc., UK. Cannot find company intellectual property policy on the traditional knowledge it patents nor any evidence of a benefit-sharing agreement related to this patent. Antibiotics from a Termite Gambia Patent held by Glaxo Hill SmithKline. No information about any benefit sharing arrangements between the company and Gambia. An Antifungal from a Namibia Patent held by Merck. No Giraffe information on any benefit- sharing agreements Infection-fighting Amoeba Mauritius Patent filed by Sutherland Maciver, Director of

3 Amoebics, UK. No information on a benefit- sharing agreement between any institution in the UK and Mauritius. A Treatment of Impotence Congo (Brazzaville) Patent held by Option Biotech, Canada. No evidence of a benefit- sharing agreement between company and Congo or any other country where the raw materials were found. Vaccines from Microbes Egypt Cambridge Biostability plans to commercialise vaccine but no evidence that the company intends to share any benefits from it. Four Multipurpose Ethiopia and neighbouring Patent filed with no Medicinal Plants countries information about benefit- sharing arrangement. Hoodia, the Appetite Namibia, South Africa, Patented by the South Suppressant Angola, Botswana African Council for Scientific and Industrial Research with exclusive rights sold to British company, Phytopharm. The San people received miniscule royalty. Antibiotics from Giant West Africa, from Sierra Patent issued in Europe and Land Snails Leone to Nigeria pending in Canada, the US and Japan. Additional research is needed to find out if and how this patent is being further developed. Drug Addiction Treatment Central and West Africa Patent application made by from Iboga Myriad Genetics and Washington University. No discussion of benefit- sharing agreement. Multipurpose Kombo Butter Central and West Africa A series of patent claims have been filed but no evidence of any benefit- sharing agreement.

Cosmetics from Out of Biodiversity

4 Skin Whitener from an Aloe South Africa and Lesotho Patent held by US form Unigen. No evidence of benefit-sharing agreement. Beauty and Healing from Gabon and Western Central Patents held by Dior. No Okoume Resin Africa evidence of benefit-sharing agreement. Skin and Hair Care from Morocco Patent pending. No clear Argan Tree evidence of benefit-sharing arrangement. Skin Care Plus from Egypt Claims by company ‘Pharaoh’s Wheat’ marketing the product questionable. Skin Care, Etc. from Sub-Saharan African Patent held by Cognis. No Bambara Groundnut benefit-sharing agreements are found. Skin Care from ‘The Southern and Eastern Africa Patents filed in US and Resurrection Plant’ Europe. No evidence of benefit-sharing agreements.

Agricultural and Out of Horticultural Products from Biodiversity Endophytes and Improved Algeria and Morocco Patent issued to New Fescues Zealand’s AgResearch. No evidence of benefit-sharing agreements. More Endophytes for Morocco and Tunisia Patent filed by University of Improving Fescues Arkansas, US. No evidence of benefit-sharing agreements. Nematocidal Fungi Burkina Faso Swiss company, Casale group holds patent in US. Also applied for patents in Europe, China, Norway and Africa. No information on any benefit-sharing agreements. Groundnuts Malawi One of the varieties C-99R was collected by the US Department of Agriculture (USDA) 50 years ago and has since been commercialized. No evidence of benefit-sharing arrangements. More Groundnuts Senegal, Mozambique, A 2003 USDA report urged

5 Sudan, Nigeria new collections of peanut varieties including from Africa. Impatiens with a Trailing Tanzania Patents filed by Syngenta in Growth Habit Europe and the US. No evidence of benfit-sharing arrangements. Molluscides Somalia, Ethiopia, Egypt Patents pending in Europe, and elsewhere Canada and the US. No evidence of benefit sharing arrangements.

Biodiversity Acquisitions Out of for Further Investigation Ocean Riches Cape Verde, Comoros, Many patents issued for Egypt, Eritrea, Kenya, marine resources in Africa. Mauritius, Mozambique, No evidence of benefit- Seychelles and South Africa sharing arrangements. Cosmetics from ‘Kokori Nigeria Patent issued for a fruit that Fruit’ could be called by a different name in Nigeria. A Skin Treatment from Africa A US patent has been issued Tamarind on prevention and treatment of sunburned using tamarind. Is this really a patentable invention? The Cancer Fighter from Most of Sub-Saharan Africa Plant is native to many Bitterleaf countries. Is this invention actually new? Infection-Fighting Uganda Patent has been taken out Mycobacteria five times in the US. No evidence of benefit-sharing agreements.

Biodiversity Acquisitions Out of Under Investigation Industrial Enzymes from Kenya US Genencor claimed Microbes patent ownership of the microbes and enzymes which the Kenyan government is contesting. Teff Ethiopia Dutch company Soil and Crop Improvement is attempting to take over ownership of the teff varieties from the Ethiopian

6 government. The Infection Fighter Zimbabwe Patents taken out by University of Lausanne which was then commercialized by a US firm. Its benefit-sharing arrangement is questionable. Medicinal Plants Gabon, Nigeria Patents issued to Sanofi- Aventis for extract from Uvaria klaineri in Gabon but no mention of how company obtain the plant. In Nigeria, plant extracts whose intellectual property is up for sale by the US Army. Skin Cream from Coco-de- Seychelles Japan’s Kao Corporation Mer claim the use of coco-de- Mer in one of its products. Unclear if this is true but a patent application is pending in Europe. Cosmetics from the Baobab Africa Cognis filed patents on use Tree of baobab leaves. But the plant has traditionally been widely use in Africa so ‘invention’ is not new.

The Government of India submitted a report on biopiracy to the CBD Secretariat that was distributed to all participants. Analytical work undertaken on misappropriation of genetic resources and associated traditional knowledge from India the National Institute of Science Communication and Information Resources (NISCAIR), India.

7 The Institute conducted detailed studies in the years 2000 and 2003 on misappropriation of genetic resources and associated traditional knowledge from India. The 2000 study covered patents granted at the US Patent and Trademark Office (USPTO). A broader 2003 study looked at patents granted at USPTO, the European Patent Office and the UK Patent and Trademark Office.

In the year 2000, there were 4869 references on 90 medicinal plants in the USPTO database of which 80% of the references were on seven medicinal plants, i.e. Kumari, Mustaka, Tamraparna, Garjara, Atasi, Jambira, and Kharbuza. 408 references were available on Aloe vera for March 2000 alone. 762 patents on medicinal plants were studied, of which about 360 could be categorized as traditional.

In the year 2003 there were more than 15000 references on 53 medicinal plants in USPTO, EPO databases and hence a threefold increase in the number of granted patents.

In the year 2004 the study was carried out on 119 Priority Medicinal Plants for the number of granted patents, which further validated the fact that there were increasing numbers of biopiracy cases.

In 2000 the number of patents granted at the USPTO for 119 Medicinal Plants was 17329. In 2002 there was a 16.8% increase to 20835 patents. In 2004, this further increased by another 13% to 23956.

The study also revealed that Aloe vera has the maximum number of granted patents among them, with the figure of 1063 in 2000, 1458 in 2002 increasing to 1811 in 2004. Similarly, Cyperus rotundus had 872 granted patents in 2000, 924 in 2002, and 954 in 2004. In their research, the Institute also came across cases of possible misappropriation from other Asian countries.

End In view of the above study, an illustrative study on patents granted on endemic plants from developing countries like China, India, South Africa, Mexico, Sri Lanka and Malaysia was carried out at USPTO, EPO databases for search of biopiracy. The study was carried out by studying the assignee/inventor’s country and the original source of biological material. Given below are a few illustrative examples of biopiracy in India. Turmeric (Curcuma longa Linn.) The rhizomes of turmeric are used as a spice for flavouring Indian cooking. It also has properties that make it an effective ingredient in medicines, cosmetics and as a colour dye. As a medicine, it has been traditionally used for centuries to heal wounds and rashes. In 1955, two expatriate Indians at the University of Mississippi Medical Centre (Suman K. Das and Hari Har P. Cohly) were granted a US patent (no.5, 401,504) on use of turmeric in wound healing. The Indian Council of Scientific & Industrial Research (CSIR), New Delhi filed a re- examination case with the US PTO challenging the patent on the grounds of prior art. CSIR argued that turmeric has been used for thousands of years for healing wounds and rashes and therefore its medicinal use was not a novel invention. Their claim was supported by documentary evidence of traditional knowledge, including ancient

8 Sanskrit text and a paper published in 1953 in the Journal of the Indian Medical Association. Despite an appeal by the patent holders, the USPTO upheld the CSIR objections and cancelled the patent. The turmeric case was a landmark judgment case as it was for the first time that a patent based on the traditional knowledge of a developing country was successfully challenged. The US Patent Office revoked this patent in 1997, after ascertaining that there was no novelty; the findings by innovators having been known in India for centuries. Neem (Azadirachta indica A. Juss.) Neem extracts can be used against hundreds of pests and fungal diseases that attack food crops; the oil extracted from its seeds can be used to cure cold and flu; and mixed in soap, it provides relief from malaria, skin diseases and even meningitis. In 1994, European Patent Office (EPO) granted a patent (EPO patent No.436257) to the US Corporation W.R. Grace Company and US Department of Agriculture for a method for controlling fungi on plants by the aid of hydrophobic extracted Neem oil. In 1995 a group of international NGOs and representatives of Indian farmers filed legal opposition against the patent. They submitted evidence that the fungicidal effect of extracts of Neem seeds had been known and used for centuries in Indian agriculture to protect crops, and thus was a prior art and unpatentable. In 1999 the EPO determined that according to the evidence all features of the present claim have been disclosed to the public prior to the patent application and the patent was not considered to involve an inventive step. The patent granted on was Neem was revoked by the EPO in May 2000.

(THIRD WORLD RESURGENCE #186 (February 2006))