Bio-piracy in Zimbabwe, patenting by Swiss university denounced

by Chakravarthi Raghavan

Geneva, 26 Apr 2001 -- A leading international NGO and two NGOs from Zimbabwe have denounced the way in which the University of Lausanne, in Switzerland, gained access to Zimbabwe’s genetic resources via a benefit sharing agreement negotiated involving two Zimbabwe institutions, the University of Lausanne, and a US pharmaceutical company, as well as the grant, to a Lausanne University Professor, of a patent relying on traditional knowledge and the root of a tree, “Swartzia madagascariensis”, found throughout tropical Africa, according to a report in the SEATINI bulletin.

The denunciation has come from the Berne Declaration and two Zimbabwe NGOs, the Community Technology and Development Association (CTDA) and the Zimbabwe National Traditional Healers Association (ZINATHA). SEATINI is the Harare-based NGO, the Southern and Eastern Africa trade and information network, providing technical assistance and training for trade officials of the region.

The three NGOs have cited the case as another example of how current bio-prospecting in countries of the South contradicted the rules defined by the UN Convention on Biodiversity. “While the Swiss government supports the guidelines for Access and Benefit Sharing at the CBD, a Swiss University is engaged in illegal bio-prospecting activities in Zimbabwe,” says Francois Meinberg of the Swiss Berne Declaration.

The statement of the NGOs and details of the case are published in the SEATINI Special Bulletin on Intellectual Property Rights, and the issue comes to light on the eve of a WIPO-organized meeting next week where some of these issues are on the agenda of an intergovernmental committee.

The NGOs have condemned the way in which the University of Lausanne gained access to Zimbabwean genetic resources and the way the benefit sharing has been negotiated. They also reject the patent on antimicrobial diterpenes which Prof.  Hostettmann of Lausanne University took out on these resources and which is based on traditional knowledge.

The US patent 5’929,124 on anti-microbial diterpenes (according to the report in SEATINI) was granted to Kurt Hostettmann, professor at the University of Lausanne. The patented invention relies on traditional knowledge from Zimbabwe and on the root of the tree “Swartzia madagascariensis”, found throughout tropical Africa. Two years before, in April 1997, an addendum to a material transfer and confidentiality agreement between the American pharmaceutical company Phytera and the University of Lausanne was signed, under which Phytera received an option for an exclusive world-wide license and in return agreed to pay royalties of 1.5% on the net sales of any product marketed under this license. Professor Hostettmann, on the other hand, is obliged to give 50% of any royalties received to the National Herbarium and the Botanical Garden of Zimbabwe and to the Department of Pharmacy at the University of Zimbabwe.

The three NGOs complain that

·        Neither the state of Zimbabwe, nor the traditional healers affected by the bioprospecting have been correctly informed nor have they given their prior informed consent for the search of genetic resources in Zimbabwe.

The CBD, to which both Zimbabwe and Switzerland are parties, states that “access to genetic resources shall be subject to prior informed consent (PIC) of the contracting party providing such resources ...”

In Zimbabwe the mandate and the authority to allow access to genetic resources lies with the Ministry of Environment. That Ministry never signed a contract with the University of Lausanne, nor is there any contract which shifts the mandate from the Ministry to the University of Zimbabwe, which helped the University of Lausanne to get access to the resources. The African Model legislation for the regulation of access to biological resources states that the PIC of the state and the concerned local communities is needed.

Part of the information requested for the PIC should be the economic, social, technical, bio-technological, scientific, environmental, or any other benefits that are intended or may be likely to accrue and the proposed mechanisms and arrangements for benefit sharing.

·        The concerned stakeholders (traditional healers, local communities, the state of Zimbabwe) were not given any of this information before the University of Lausanne gained access to genetic resources and traditional knowledge.

“We have never given our consent to this deal”, states Prof. G. Chavunduka of the Zimbabwe National Traditional Healers Association (ZINATHA) which had submitted a number of samples of their medicines to the University of Zimbabwe for analysis. “The idea was just to confirm the properties of this medicine which traditional healers have been using for time immemorial.”

The NGOs point out that there have been no mutually agreed terms for a fair and equitable benefit sharing mechanism. An agreement signed between the University of Zimbabwe and the University of Lausanne stipulates that in the event of finding any product which may require the application of intellectual property rights, this will be subject of joint negotiation and application.

But contrary to Article (F) of this agreement, as the Chairperson of the Pharmacy Department indicated, the University of Zimbabwe did not take part in the negotiation process between the University of Lausanne and Phytera. No one has consulted stakeholders in Zimbabwe on whether they agree with the amount of royalties they are to receive. Indeed, the amount negotiated between the University of Lausanne and Phytera is very low compared to other benefit sharing agreements.

The average range of royalties on net sales for materials with value added data such as ethno-botanical information is 1-4 percent, including exceptional cases of up to 50% (in a contract between the Swiss Federal Institute of Technology and Venezuela). In the case of “Swartzia madagascariensis”, moreover, a low benefit sharing percentage must be shared with an intermediary, the University of Lausanne.

A patent taken out on illegally accessed genetic resources should be declared invalid. However, as patent offices do not consider the origin of patented materials, the current patent regime in fact supports biopiracy.

The NGOs also request further analysis of whether Professor Hofstettmann’s ‘invention’ actually fulfills the requirements for a patent (e.g. novelty), or if it is largely based on illegally acquired traditional knowledge.

“In this case, the involved NGOs are willing to fight the patent at the US patent and trademark office” states Andrew Mushita of the CTDA in Zimbabwe. A documentary telecast by Swiss television in June 2000 indicates that other bioprospecting projects of Prof. Hostettmann (e.g. the search for a natural “Viagra” medicine on behalf of the Swiss pharma giant Novartis) have also been carried out in violation of the CBD. Phytera already made headlines in 1996, when - in an attempt to circumvent the Biodiversity Convention - they proposed plant sampling contracts to botanical gardens in the North without any provision for benefit-sharing with the countries of origin. Several botanical gardens in Germany rejected such contracts. Swiss and Zimbabwean NGOs demand that in the case at hand, an access and benefit sharing agreement be negotiated that fulfills the objectives of the Biodiversity Convention and involves all the main stakeholders in Zimbabwe. The NGOs also demand that the contract between the University of Lausanne and Phytera be cancelled and the patent withdrawn.

CTDT and Berne Declaration demand that the current research agreement between the universities concerning the open access to medicinal and poisonous plants of Zimbabwe be suspended with immediate effect for the following reasons:

a)   The government is not party to this agreement as required by the Convention on Biological Diversity (CBD). The representative of the Ministry of Environment and Tourism confirmed at the meeting, that they are the only legal authority to grant access to any Zimbabwean biological resources.

b)   The benefit sharing mechanisms and frameworks of the agreement are not consistent with common practice. For example, there are no provisions for a future benefit-sharing agreement if a product is commercialized.

c)   Under the current agreement only the University of Zimbabwe is a beneficiary, thus marginalizing other stakeholders such as traditional healers and the government.

d)   The current agreement has no mechanism to acknowledge and compensate the use of traditional knowledge systems.

e)   It seems that access to medicinal plants was granted to the University of Lausanne at less than a fair value. CTDT and Berne Declaration call upon the Ministry of Environment and Tourism of Zimbabwe to take the initiative and a leading role in defining a model agreement for access and benefit sharing. Such an agreement involving all relevant stakeholders should contain provisions for prior informed consent, mutually agreed terms and benefit sharing mechanisms. To avoid shortcomings and loopholes, the new agreement should be accessible for comments by civil society.

Add the three NGOs: “As the terms of access to the genetic resources of Zimbabwe are renegotiated, the University of Lausanne is given an opportunity to prove its good will by supporting a fair contract. Hopefully, they will not miss it.” - SUNS4884

The above article first appeared in the South-North Development Monitor (SUNS) of which Chakravarthi Raghavan is the Chief Editor.

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