Pillaging of African biological resources continues, study finds

A report by a South Africa-based non-profit organisation has found seven new suspected cases of biopiracy of African biological resources and traditional knowledge.

Riaz K Tayob

Issue No. 231/232 (Nov/Dec 2009)

ACCORDING to a report, 'Pirating African Heritage: The Pillaging Continues' by the African Centre for Biosafety, seven new suspected cases of biopiracy in Africa take the form of applications for or grant of patents in the United States, Europe and elsewhere. They add to the 36 cases found in the Centre's 2006 study 'Out of Africa: Mysteries of Access and Benefit Sharing'. The seven new cases are based on a preliminary study of patent applications lodged and patents granted in the US, European Union and elsewhere. Further investigation is merited by African governments, the report states, to determine conclusively whether biopiracy 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), skincare, sexual dysfunction, viruses and vaccines, insect repellents and possible cancer treatments.

The report states that the seven cases 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 do not disclose the existence of prior art in their patent applications, says the report.

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 is '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 cases examined in the report have patents pending or granted before the US Patent and Trademark Office, the World Intellectual Property Organisation (WIPO) or the European Patent Office. 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, the Yaounde-based African Intellectual Property Organisation, 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, the African Regional Intellectual Property Organisation based in Harare, includes Botswana, the Gambia, Ghana, Kenya, Lesotho, Malawi, Mozambique, Namibia, Sierra Leone, Somalia, Sudan, Swaziland, Tanzania, Uganda, Zambia and Zimbabwe.)

Skinned?

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. Creams with a small amount of extract sell for $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 $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). On the alleged novelty of Bayer's patent claims, the report discloses 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'. The report also criticises the scope of the application as being 'remarkably broad', pointing out that Vernonia is used in medicines all across Africa.

On the face of it, Bayer's patent claims appear to be biopiracy, the report states. On its part, 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 which produces the extract, is a member of the Swiss-based Union for Ethical BioTrade. This Union is a private outgrowth of the 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, the Union 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 kilogramme to plant collectors, what is the yield in plant extract, and how much income the company and its corporate customers derive from sales.

The report concludes that there is strong evidence that Bayer 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 may also constitute biopiracy.

Another case looked at in the report 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 'handy' 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 11 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.' The company further claims that Malagasy healers provide inaccurate information to researchers and that they lack scientific rigour in identifying and characterising 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 [are] highly unreliable and can't be used in any practical sense for treatment of medical conditions.'

Dicotyledon's application concludes, '[T]he 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 brings to the fore an issue that developing-country governments have repeatedly raised at the World Trade Organisation, WIPO and the Convention on Biological Diversity (CBD) in discussions on traditional knowledge and practices as prior art in the context of patent applications.

Patent injustice

Another case study in the report, 'Prettier skin for the conspicuous consumer from patented African cardamom', cites Moet Hennessey Louis Vuitton LVMH (France) as the applicant claimant on an extract of Aframomum angustifolium or Longoza plant.

Through its cosmetics brand Christian Dior SA, LVMH is selling products with the seed extract such as 'Dior Capture Totale Multi-Perfection Correction Serum'. The 'serum' costs $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 revitalising plant grown only in Madagascar', a claim which is patently untrue, the report states.

A. angustifolium and closely related 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 CBD meeting on 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'.

The applicant claimants in another case examined in the report are the Universities of Basel and Bern and the Swiss Tropical Institute. The claim here 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 an article on ethnobotany noted its traditional use in treating epilepsy'. The report thus questions the basis of their claim that the candidate drug is novel and inventive. 'It appears that it would be more accurate . 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 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 its 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.'

Biopiracy 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-African-heritage-the-pillaging-continues/menu-id-100029.html.

This article is reproduced from the South-North Development Monitor (SUNS, No. 6810, 9 November 2009), which is published by the Third World Network.

*Third World Resurgence No. 231/232, November-December 2009, pp 36-38