RAFI, a Canadian NGO, in its recent Communique devoted to the issue of biopiracy, has provided many recent examples and updates of blatant cases of biopiracy in the South. Corporations, OECD countries and even a number of academic institutions have invested millions of dollars 'bioprospecting' in the South and have reaped the benefits by selling their patents to western multinational giants.

by Someshwar Singh

Geneva, 20July 2000 -- While the United States officially is finding it hard at the World Trade Organization (WTO) to understand the ‘phenomenon of biopiracy,’ out in the ‘real world’, cases abound of on-going attempts to profit unduly from the accumulated knowledge, practices and nature’s bounty within the territorial spheres of the developing South.

According to RAFI (Rural Advancement Foundation International), an NGO-based in Canada, corporations and OECD countries are investing hundreds of millions of dollars in the ‘bioprospecting’ and analysis of biomaterials. The products arising from their explorations sell for billions of dollars every year.

Moreover, a number of academic institutions, supposedly devoted to the alter of higher learning, have become conduits in biopiracy, and making big money by selling their patents acquired from the Southern territories to western multinational giants who have the infrastructure to sell the world their ‘new’ products.

Not just that. Even governmental departments ostensibly functioning for public benefit - such as those concerned with public health and agriculture - appear to be actively promoting bioprospecting, in a manner that is actually promoting biopiracy in the South.

And in some cases, as in Mexico, farmers are being shut out from the US market for apparently infringing patent rights of a small US seed company, which took the germplasm from Mexico in the first place. At least $200,000 was estimated in legal fees to challenge the patent.

There is thus a double loss to Southern countries if they complain - first by biopiracy and then by way of legal fees to be paid in the courts of countries involved in the biopiracy. The other side of the coin is a double benefit - first for the corporations, mainly the biotech giants, and then the legal firms of highly specialized trade lawyers!

In its May-June Communique devoted to the issue of Biopiracy, RAFI says people in the South are missing the financial benefits that should rightfully come from the exploitation of their sovereign resources and the commercialization of their indigenous knowledge. “They are also being pressed into a system that forces them to pay royalties and monopoly prices for access to the pirated bioresources.”

The RAFI Communique gives some recent examples and updates of blatant cases of biopiracy, illustrating the inadequacy and inequities of existing intellectual property systems in protecting the rights of farmers and indigenous peoples over their knowledge and biodiversity.  The current systems do not protect the interests of community innovators, and ultimately threaten conservation and improvement of biodiversity worldwide.

Mexican beans, South Asian basmati, Bolivian quinoa, Amazonian ayahuasca, West Africa’s sweet genes - all have been subject to intellectual property claims that are predatory on the knowledge and genetic resources of indigenous peoples and farming communities.

“The ‘steak-eaters’ here are not only the Gene Giants, but include major governmental and academic research institutions,” says RAFI.  “Biopiracy also attracts penny ante privateers who come into a community to pilfer, patent, and then sell their ‘inventions’ to larger enterprises.”

Last year RAFI and the Australian Heritage Seeds Curators Association (HSCA) released a report entitled ‘Plant Breeders’ Wrongs,’ documenting 147 suspected cases of institutional biopiracy. Industry representatives, patent offices and Plant Breeders’ Rights officials from Canberra to Geneva dismissed the charges, asserting that plant intellectual property abuses are isolated cases.

But the RAFI-AHSC study focused primarily on 118 Australian claims which amount to 6% of all applications made to the Australian PBRO since the legislation was adopted in that country, and the cases highlighted were only the most recent examples of a long line of ‘systemic biopiracy’ abuses.

The plunder and patenting of marine life also has not abated. Coral and sea creatures throughout the tropics have continued to prove profitable for many patent seekers. Most of these marine collections are taking place within the sovereign territory of countries, often without the proper authority, RAFI points out.

Tambuyog Development Center (a Philippine Civil Society Organization, CSO, working on marine ecosystems in Central Visayas and Mindanao and a partner with the South East Asian Anti-Biopiracy Program coordinated by SEARICE - South East Asian Regional Institute for Community Education) has been actively documenting cases of marine biopiracy.

According to Tambuyog, many of the specimens collected by bio-prospectors come directly from local and indigenous people in the region who provide the prospectors with important knowledge about these resources. Tambuyog has uncovered a number of questionable bioprospecting projects involving marine organisms, including work by University of California researchers who are active in many areas of the world, including the Philippines.

University of California researchers “discovered” and patented a potent anti-inflammatory agent, called pseudopterosin, which they found in a Caribbean (the nation state is not identified by the “inventors”) sea-whip (Pseudopterogorgia elisabethae). The compound, developed in conjunction with a professor of pharmacology at the University of California, Santa Barbara, has already been incorporated into a skin cream currently marketed by international cosmetic giant Estee Lauder in a product line called “Resilience.”

In the past two years, this one application has generated average yearly royalty income of well over $750,000 for the University. The same compound has also been licensed to OsteoArthritis Sciences Inc, and to Nereus Pharmaceuticals. In all, the royalties received by the University of California for patented ‘pseudopterosins’, not including the Estee Lauder license, is in the millions, RAFI notes.

Another rare sea creature worth its weight in gold is called Diazona chinensis. Working on a National Cancer Institute grant, researchers at the University of California-Santa Cruz have collected samples of the creature. An additional $500,000 was pumped into the research by The American Cancer Society in order to allow the scientists to further synthesize the compound.

Once again, the “inventors” tactfully avoid identifying where they collected their ‘samples’ or whose knowledge led them to the patent.  Researchers at the University of California’s Scripps Institute of Oceanography have also been busy collecting marine life through a number of public grants, including funding for collaborations with commercial partners.

Marine chemists at Scripps have isolated a chemical from a rare species of coral called eleutherobin, now patented and licensed to Bristol-Myers Squibb. The compound appears to prevent cells from dividing, and is thought to be an important tool in fighting solid cancer tumours. Another compound (manoalide), extracted by Scripps scientists from a sea sponge, is the subject of 30 patents by the University of California. The compound has been licensed to Allergan Pharmaceuticals for developing a treatment for psoriasis.

Of the top 150 prescription drugs in the USA, only two utilize compounds isolated from marine organisms, notes the RAFI newsletter. In a survey of 20 major bio-prospecting enterprises however, it was found that the companies collected about 17% of their samples from marine ecosystems and that enthusiasm for the potential of maritime organisms is growing.

“Companies and collectors like to think that anything salvaged from the sea is fair game - that no indigenous knowledge or national sovereignty need be sought or assigned, says RAFI. “This is hardly the case. As much as rural and indigenous communities have developed drugs and other useful inventions from plants, animals, insects, and soils it stands to reason that since the majority of humanity lives along seacoasts and waterways and have depended upon marine life for food, they have also experimented with marine resources for medicines and other non-food purposes.”

“Experience teaches us that the ‘wild’ or ‘uncultivated’ are not necessarily unresearched. While it is in the interests of biopirates to claim that they have discovered or invented that which they have never seen before, they must prove this to be true. In the absence of proof, the Biodiversity Convention - and patent regimes - must assume that any material within the reach of human hands has been discovered, described, and developed by one or more communities. To assume otherwise is to sanction piracy.”

As the heat is turned on to those involved in the process of biopiracy, there is anger and frustration. The RAFI communique recounts a case in the Philippines, where legislation regulating the removal of biological resources from the country is said to be among the most comprehensive in the world. SEARICE lobbied hard for the adoption of this access legislation and their partners, including Tambuyog have been active in ensuring that the legislation is upheld.

The attempt by the Philippines to control access to and promote benefit sharing from its biodiversity through Executive Order 247 (E0247) angered some marine researchers accustomed to easier access to these resources. When EO247 came into place it apparently caused some hold-ups with ongoing collection activities that Scripps was engaged in as part of a collaboration with Bristol Myers Squibb (BMS), one of the ten largest pharmaceutical enterprises in the world. In an effort to comply with the new legislation, the Philippine groups working with Scripps proposed a new Commercial Resources Agreement (CRA).

The Director of the Scripps Institute, William Fenical in an angry letter dated 18 May 1998 (obtained by Tambuyog) to his Philippine ‘partner’ at Silliman University’s Marine Laboratory, makes clear his own allegiance to the pharmaceutical company.

“First, let me say that I am very concerned that the Government of the Philippines has decided NOT to honour our previous CRA which is clearly a binding contract. This behavior is outside international law!  Furthermore, we have only now been notified of this change, and find ourselves unable to remove our collected specimens from the Philippines. This is unreasonable behavior and does not show the government support we were offered. Surely, the new CRA can only be enforced AFTER we have been properly notified!"

“There are a few issues in the CRA which I know will not be agreed upon. First, we do not sell products, so asking us to guarantee 5% of sales is unreasonable. The agreement is between UCSD and the Philippine units, not between BMS and anyone. We can give 5% of our royalties. In the same regard, we cannot ‘Cause BMS’ to make any payments ($100,000 and $500,000) to any Philippine Government group. We do not tell BMS what to do under any circumstances.”

In response, the Philippine partners had to remind Fenical that the wording, on the subject of royalties in the new CRA was taken, word for word, from the original agreement already negotiated, and agreed to, by Scripps.

According to RAFI, pirates are adding to their booty not only through plant genetic resources, but also through the removal of livestock germplasm from the South. A controversy is brewing over African cattle, which have become important additions to the cattle market in Australia and have led to valuable new breeds of cattle without any benefit being returned to the countries that developed the breeds.

In 1987, a joint venture between the Commonwealth Scientific and Industrial Research Organization (CSIRO) - an Australian government agency - and a consortium of Australian producers (known as the Boran and Tuli Producers Consortium), collected Tuli embryos from Zimbabwe (and Boran from Zambia). The embryos were quietly taken to Cocos Island in 1988 where they were implanted into surrogate dams. In 1990, live calves landed in Australia. Andrew Mushita, Executive Director of Commutech, a CSO addressing collective rights issues in Southern Africa, and Regional Chair of the Community Biodiversity Development and Conservation Programme (CBDC), has been closely following the issue in Zimbabwe.

The Tuli breed brings significant advantages to the Australian beef industry. The breed combines high fertility, a docile temperament and excellent beef characteristics with high levels of resistance to the environmental stresses that exist in Zimbabwe (and many parts of Australia). Those involved in the transfer of the germplasm to Australia are clear about the benefits of the African stock.

Many commentators also praise the excellent meat quality attributes of the breed, with studies demonstrating that the meat quality on the Tuli even surpasses that of the well-known Angus breed.

It is difficult to estimate the exact value of the Tuli to the Australian beef industry, particularly since they are used for cross breeding. Geoff Ryan, an officer in the Australian Quarantine and Inspection Service indicated in October 1999 that because relatively few Tuli have been introduced into Australia, he doubted that the value of these breeds could be calculated. However, in terms of potential value, Dr. Stocker, the CEO of CSIRO said in 1993, that “The introduction of these breeds could lift production [of national herds] by up to 30 percent.”

The Australian beef industry is worth $2.4 billion per year. They are the largest red meat and livestock exporter in the world, producing 1.8 million tons with 62% of production available for export.

And now, writes RAFI, the Australian consortium is selling the embryos on the Australian and world markets. In May of 1994, just a few days after the Biodiversity Convention meeting in Nairobi wrapped up its final preparatory session leading to COP I - a meeting where germplasm piracy was a dominant theme - the second Boran and Tuli pure-bred embryo sale was held in Australia.

The Tuli embryos were in demand and a new world-record price was set at $5,500. Further, in 1994, during a sale of pure-bred 2-3 year old Tuli bulls offered for sale in Australia, the Consortium also revealed that:

“Semen and embryo sales have exceeded expectations with heavy demand from the Americas.”

It appears that the Australians are selling pure-bred embryos from Zimbabwe to countries in the Americas!

At the same time, the consortium revealed that “successful selective breeding using African Boran and Tuli breeds and an adapted Bos Taurus breed called ADAPTAUR is already attracting attention in the beef industry.”

Those familiar with the case in both Zimbabwe and Australia concede that the removal was undertaken with as low a profile as possible.  Zimbabwean officials insist that the Australians were aware that the embryo transfer would have been opposed had the Harare authorities been aware of the plan.

“Others familiar with Aussie antics say that at least two similar removals took place in the Middle East involving commercially-important sheep breeds. In each case, germplasm was spirited out of the country of origin with as little fuss as possible. In at least one case, the country of origin is now buying the germplasm back from Australia.”

If Tuli and Boran breeds boost Australian beef, then the African countries should receive a commercial proportion of the value-added market, RAFI contends. “If the commercial gain is $800 million per annum, then - at minimum - the two countries should earn five percent, or $40 million, per year. Until that commercial benefit is fully realized, Australia’s aid programme should be maintaining the native herds in their home countries and financing their further local development....  To do anything less would mean that Australians are the beneficiaries of foreign aid to Zimbabwe and Zambia. Certainly the two countries are giving the Aussies far more value than they are currently receiving in aid from that country.”

In another reported case, University of Wisconsin scientists are now making money from their patents on ‘brazzein’, a super-sweet protein extracted from the berries of a West African plant, Pentadiplandra brazzeana.

The Wisconsin scientists ‘discovered’ the super-sweet berries in Gabon, where local people have known and consumed the berries for many years.  Despite being the inspiration and origin for brazzein, neither Gabon nor its people will share the benefits. University of Wisconsin scientists won four U.S. patents on the brazzein protein between 1994-1998. They were the first to isolate, sequence, and synthesize the DNA encoding for the production of P. brazzeana’s sweet protein. The breakthrough in synthesizing the brazzein protein, and the ability to produce it in high-tech laboratories, essentially eliminates the need for P. brazzeana to be collected or grown commercially in West Africa as a source for the super-sweet protein.

Brazzein is reportedly 2,000 times sweeter than sugar, a quality that makes it highly desirable as a natural low-calorie sweetener. Corporate interest in brazzein is strong. The low-calorie, dietetic sweetener market represents a wholesale value of $1.4 billion worldwide. Several multinational companies have already licensed the brazzein technology from Wisconsin, but the University will not disclose the names of the businesses, or the licensing fees.

NeKtar Worldwide, a small company based in Texas, bought exclusive rights for the use of brazzein as an extracted sweetener. Working with biotech company ProdiGene, NeKtar hopes to extract large quantities of the low-calorie sweetener from maize that has been genetically modified to express the super-sweet protein. “We expect to extract one kilogram of Brazzein from a ton of corn processed. This doesn’t sound like much until you realize that this equates in sweetness to at least 1,000 kilograms of sugar,” said Jim Eckles, CEO of Nektar Worldwide. “High fructose corn syrup (HFCS) is the leading sweetener in the United States today, and this technology could produce a new [sweetener] with twice the sweetness without adding calories.” NekTar says that they have successfully modified maize to express super-sweet genes, but a commercial product is still 3-4 years in the future.

The University of Wisconsin’s recipe will put traditional sugarcane and sugarbeet growers on a diet (if not cause outright starvation) while they themselves get fat on the genius and indigenous knowledge of West African communities, says RAFI. “This issue is less of benefit-sharing than it is one of equitable trade practices."

“West Africa has a right to protect and benefit from its indigenous resource and knowledge. Sugar growers around the world (including beleaguered sugarcane workers in the U.S.) have a right to protection as they adapt to a potentially profound technological change. The WTO, UNCTAD, the Common Fund on Commodities, FAO, and the CBD all have a role to play here.

“First and foremost, however, Wisconsin’s wrongful patents should be withdrawn,” contends RAFI. The University of Wisconsin’s Exclusive Monopoly Patents on West Africa’s Sweet Genes are contained in U.S.  Patent No. 5,741,537 - April 21, 1998: No. 5,527,555 - June 18, 1996; No. 5,346,998 - September 13, 1994; and  No. 5,326,580 - July 5, 1994.

In the Palawan region of the Philippines, researchers at the University of Illinois at Chicago (UIC) have been involved in a project aimed at exploiting pharmacologically important diversity in the region. The Palawan NGO Network, Inc. (PNNI), which is a partner in the Anti-Biopiracy Program, has been actively tracking the activities of the UIC team. The UIC team is particularly interested in a plant, known as dichapalin I, which they believe possesses significant anti-cancer pharmaceutical properties.

The UIC project, funded by the MacArthur Foundation and the National Cancer Institute, is working with national partners, including the Philippine National Herbarium of the National Museum, the University of the Philippines, and the Palawan Council for Sustainable Development (PCSD).

The Memorandum of Agreement (MOA), signed by the partners, leaves no doubt about the importance to the project of patenting Philippines’ genetic resources. Researchers are expected “to take measures accordingly that would include filing a patent protection on the invention (discovery) namely on the potential use of the said compound as a drug to treat cancer and the licensing of the patented invention.”

The Philippine organizations are responsible for ensuring that the appropriate permits are issued and for sending out the samples and the compounds as well as to “secure prior informed consent from Palawan.” Prior informed consent of local communities is one of the Philippine government requirements of Executive Order 247, established to curtail biopiracy.

However, PNNI has been unable to determine whether the UIC project has received any prior informed consent from the people in the region.

UIC intends to license the invention to a pharmaceutical company and to share benefits with its partners. These benefits will be disbursed through a trust fund established and administered by UIC.  Following Philippine legislation, the partners have established a “benefit sharing” agreement laying out how royalties arising from the licensing of the compound to a pharmaceutical company would be shared.  While the agreement appears to provide the Philippines partners with substantial benefits, the numbers represent the percentage of royalties negotiated by UIC from the pharmaceutical company, not the percentage of royalties overall.

As a result, if UIC were to negotiate five percent of royalties, the actual share of royalties going to the Philippine partners would be less than three percent. Further, because the project royalties are controlled by UIC, administrative charges on the royalties will likely further lower the amount to the Philippines.

The UIC must ensure that any collection is done with the prior informed consent of the indigenous groups in the area before collection commences, RAFI maintains. “Further, these groups must be informed that whatever the benefit sharing arrangement agreed to, for the most part, these royalties only exist on paper and may never materialize or may only materialize in the far distant future. Typically source countries receive less then three percent of net royalties and often receive less than one percent. RAFI knows of no local community that has ever actually received any royalty benefits.”

The RAFI Communique also outlines the examples of the Enola bean case in Mexico which has affected its farmers, who now have to engage in costly litigation for the right to use their own beans.

Another case cited is in the Chiapas, Mexico, where eleven indigenous peoples’ organizations and their many supporters are demanding that a $2.5 million, U.S.-government funded bioprospecting program suspend its activities. Despite the protest by local Mayan organizations, the University of Georgia (U.S.) says it will not halt the five-year project, which aims to collect and evaluate thousands of plants and micro-organisms used in traditional medicine by Mayan communities.

The project is led by the University of Georgia, in cooperation with a Mexican university research center, El Colegio de la Frontera Sur (ECOSUR), and Molecular Nature Ltd., a biotechnology company based in Wales, U.K. The five-year project will receive a total grant of $2.5 million from the U.S. government’s International Cooperative Biodiversity Groups (ICBG) - a consortium of U.S. federal agencies, including the National Institutes of Health (NIH), the National Science Foundation (NSF) and the U.S. Department of Agriculture (USDA) that awards grants to public and commercial research institutions that conduct bioprospecting/biopiracy programs in the South.

Using indigenous knowledge to guide its research, the Chiapas ICBG project aims to discover, isolate, and evaluate pharmacologically important compounds from the plant species and microorganisms employed in traditional Mayan medicine. Over the centuries, the Maya have developed a rich medical knowledge.

The ICBG and the University of Georgia should withdraw from Chiapas unless and until the communities there invite them to return, RAFI suggests. RAFI holds that exclusive monopoly intellectual property over products and processes constrain innovation and disenfranchise society.  It does not believe that there currently exists any adequate mechanism, including the Biodiversity Convention, capable of safeguarding the rights and interests of local communities.-SUNS4714

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