[A2k] TWN INFO: Pillaging of African biological resources continues, study finds

[Sangeeta]

TWN Info Service on Intellectual Property Issues
10 November 2009
Third World Network
www.twnside.org.sg <http://www.twnside.org.sg>

Pillaging of African biological resources continues, study finds
Published in SUNS #6810 dated 9 November 2009

Geneva, 6 Nov (Riaz K. Tayob) -- As governments prepare to resume
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].

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."

Dicotyledon's application concludes, "the studies cited above could not have
led anyone skilled in the art of plant ethnomedicine [to conclude] that
Neobeguea mahafalensis possesses any particularly useful properties
vis-a-vis treatment of sexual dysfunctions."

This case raises an issue that developing country governments has raised
repeatedly in discussions on traditional knowledge and practices as prior
art in the context of patent applications, at the World Trade Organisation,
WIPO and Convention on Biological Diversity.

The case study "Prettier Skin for the Conspicuous Consumer from Patented
African Cardamom" cites Moet Hennessey Louis Vuitton LVMH (France) as the
applicant claimant on "The comprising of an Extract of Aframomum
angustifolium or Longoza Plant".

Through its cosmetics brand Christian Dior S. A., LVMH is selling products
with the seed extract such as "Dior Capture Totale Multi-Perfection
Correction Serum". The "serum" costs US$135 for a one ounce (28 gram)
container. Marketing material states that the "secret" of the expensive
product is A. angustifolium, which is described as "a rare revitalizing
plant grown only in Madagascar", a claim which is patently not true, the
report states.

These plants have a number of food and traditional medicinal uses in various
parts of Africa, although it is unclear if it is used as a skin treatment as
well. But LVMH's patent claims are broadly written, and cover any extract
from the plant's seeds used in cosmetics and may additionally infringe on
traditional knowledge.

Even though LVMH attended a recent meeting of the Convention on Biological
Diversity regarding access to genetic resources and benefit sharing, the
report writers were not "able to find any information to indicate that LVMH
has a benefit sharing agreement in place to share the profits from its A.
angustifolium products."

On the study "New Drugs from East African Cussonia Trees", the applicant
claimants are the Universities of Basel and Bern and the Swiss Tropical
Institute. The claim is on drugs from Cussonia zimmermannii, a tree found in
Tanzania, Kenya, Uganda, Mozambique, and other countries in East and
Southern Africa. Extracts are active on the human central nervous system's
GABA(A) receptor and may be of use in treating a variety of diseases,
including epilepsy and mental disorders such as anxiety.

The Swiss "inventors" concede that "Kenyan researchers noted in 1986 that
the plant is traditionally used to treat mental illness and that in 1964
noted its traditional use in treating epilepsy," the report states. It
questions that basis of the claim that the drug is novel and inventive.

"It appears that it would be more accurate, however, to say that the Swiss
institutions have used their own Western methods to confirm African
traditional knowledge about the plant - rather than inventing something
themselves - when it already existed!", the report stated.

The other cases in the report are: "Lice Treatment from Africa's Lemon
Bush"; "Viral Prospecting: Looking for Vaccines in the Blood of African
Hunters"; and "Africa's Marine Resources Up for Grabs".

In the conclusions, the report states that, "African terrestrial and aquatic
biodiversity, and even human biological samples, continue to be claimed as
the exclusive intellectual property of corporations and other institutions.
Adding to the exploitation and gross inequity, these African resources are
often patented for use in expensive luxury goods or healthcare products that
relatively few Africans can afford and which do not serve most Africans'
needs."

Bio-piracy in Africa remains a huge problem and "there is little to suggest
that the true owners of these resources have consented to the patent claims.
In most cases, there is even less evidence that sharing of benefits is
taking place, much less equitable plans that have been negotiated with
Africans as equal partners".

The report recommends that more in-depth research should be undertaken to
confirm, challenge and further document misappropriation of African
resources.

(The full report is available at:
http://www.biosafetyafrica.net/index.html/index.php/20090810233/Pirating-Afr
ican-
heritage-the-pillaging-continues/menu-id-100029. html) +