Biopiracy and the growing rift between IPR Haves and Have-Nots

IPR illiteracy, a flavor of nationalism and an inkling for demagogy makes a toxic combination.  We recall an incident in 2007-2008 when Indonesia made a big international fuss when it delivered a strain of Bird Flu virus (H5N1) to the WHO, then to discover that others, in this case Gilead Research, a US company, patented what they believed covered “their” virus materials, ending in a legal quandary as why Indonesia had to subsequently encounter problems getting access and sufficient supply of the medicines against Bird Flu. Wasn’t it an Indonesian virus (H5N1) from the 2005 Bird Flu outbreak that was selected by WHO Global Influenza Surveillance Network (“GISN”) for use in vaccines in the first place? Later, when patent claims on this and other H5N1 viruses emerged, Indonesia’s discontent grew further. The mere fact that Indonesia supplied the virus to the WHO was, in its view, reason enough to be “compensated”. I guess they meant to be “licensed” under the Gilead/Roche patent(s) e.g. by being freed to pay any royalty under those patent(s) covering Tamiflu.

The subsequent international uproar caused by Indonesia’ refusal to further provide WHO with virus material, was very much troubled by a lack of understanding of patenting and the role of IPR. Firstly, providing of a virus strain as such merits no intellectual award, let alone an intellectual property right. Secondly, under their own patent laws, countries like Indonesia can take ownership of rights to biological organisms isolated from either people or livestock and decide which companies or researchers use them. Would Indonesia by doing so have helped subsequent research to achieve a cure, a medicine or a test? Helped, yes maybe, but any form of “entitlement”? No. In other words, the idea that you deliver “material” for which you deserve to be remunerated is like saying that the supplier of brick stones is entitled to (parts of) the profit made by the property developer and construction company that made and subsequently sold the building.

It was the beginning of an issue recently raised again, now in the EU Parliament, biopiracy. More and more medicine development is based on materials from (mostly) developing countries or countries with a weak IPR system. “Biopiracy” usually refers to the industrial practice of patenting products based on the traditional knowledge or genetic resources of indigenous peoples, without authorization or providing compensation to source countries.

In July 2012 MEP Catherine Grèze, of France and the Greens/European Free Alliance wrote a Report, which was discussed this week in the Development Committee (DEVE) at the European parliament.

In her report she concluded that she is of the view

“that the introduction of a mandatory disclosure requirement in the context of the WTO-TRIPS is needed. In parallel, special attention needs to be paid to the expansion of bilateral trade agreements that may jeopardise further developing countries’ interests, through the enactment of so-called ‘TRIPS plus’ standards for IPRs. It is essential to ensure that the EU refrains from pushing developing countries, especially LDCs, to accept through bilateral agreements far-reaching IP standards regarding seeds/agriculture and health/medicines.”

That’s exactly what some countries most affected by what they consider to be “biopiracy” have made a strong case for: that the only way forward for use of traditional knowledge and indigenous materials is to require

(a) disclosure of the source and origin of genetic resources and associated traditional knowledge (ATK) used in inventions;

(b) provide evidence of prior informed consent (PIC) from competent authorities in the provider country and

(c) provide evidence of fair end equitable benefit sharing, to be certified in an international certificate of origin

The problem with many of the policy discussions at the moment in WIPO, the EU and other fora is that the subject is very ideology driven, where politicians are less interested in the working of IPR nor in fact based discussions rather to make broad statements and politically correct – that is anti-IP, anti-patent – statements. This is a pity as legitimate claims on traditional or indigenous knowledge certainly deserve the attention of the IPR community. However as with most of the “sensitive” subjects (free access to medicines, software patents, research being allegedly by patent and “patent grabbing”) progress is not served by emotional ideological debates rather fact based studies.

The recommendation to add to any patent application whether indigenous knowledge has been “used” is meaningless. Patent applications are no political or ethical documents. If the provider of indigenous knowledge is of the opinion that he “contributed” to the invention leading to a patent, he can under international patent laws, claim “co-ownership” or otherwise claim parts of potential future license income. However we have the feeling that it will be hard to prove that any indigenous knowledge as such ever led to a paten. There is more to get a patent you have to prove progress over what is known already, an “inventive” step. Did the provider of indegenous knowledge provide that “inventive step”. If so, then the proper road is to use existing patent methods to claim your right.

Do not get us wrong: Like the strive for “fair trade” it certainly is a great thing to have those countries or people that contributed to increased knowledge by letting third parties, countries or companies use IK, be rewarded in some way or the other. Blaiming IPR does not bring the solution to this issue any closer though.

For further reading, among which a 2006 study on 36 cases of “biopiracy”have  been described and researched, see:

GRAIN: “Indonesia fights to change WHO rules on flu vaccines” (2009)

FAIR POLITICS: ” MEP Grèze writes report on biopiracy and intellectual property rights

Biopiracy is a large unknown challenge that must be tackled by the EU, writes Catherine Grèze

Boven, Morohashi (Nuffic/Unesco/MOST) “Best Practices using Indigenous Knowledge (2002)

Huff Post: “Biopiracy: patenting the Public Good”

McGown, “Out of Africa: Mysteries of Access and Benefit Sharing”  (2006)


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