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Predatory Patents

Biopiracy and the privatization of global resources

By Hope Shand

The primary stewards of the world’s biodiversity are the farmers, Indigenous peoples and local communities, primarily in the global South, who developed, nurtured and continue to use these resources today. Rural poor people in the global South rely on biological products (i.e., derived from plants, animals and microorganism) for an estimated 85 to 90 percent of their livelihood needs. More than 1.4 billion rural people depend on farm-saved seeds and local plant breeding as their primary seed source. More than three-quarters of the world’s population rely on traditional medicines for their primary health needs.

Given that the majority of livelihoods in the global South are dependent on biodiversity, losing control over these resources is one of the biggest threats to Indigenous peoples and traditional communities. This loss is occurring through a phenomenon known as biopiracy.

What is Biopiracy? 
Biopiracy refers to the privatization of genetic resources—whether derived from plants, animals, microorganisms or humans—or related knowledge. Individuals and corporations are using intellectual property laws, which include trademarks, patents and Plant Breeders’ Rights, to gain monopoly control over such resources. The privatization of biological resources and related knowledge constitutes biopiracy, even though this process may be legal under national law, and even if it includes a so-called “benefit sharing” agreement. (Benefit-sharing typically means that providers of genetic resources get a portion of the benefits, monetary and non-monetary, resulting from the use of their resources.)

The rights of farmers and Indigenous peoples are eroding as biological products and processes become subject to exclusive monopoly control under intellectual property systems. Both industrial patents and Plant Breeders’ Rights, for example, increasingly criminalize seed saving; prohibit research using proprietary seeds; and restrict access to and exchange of seeds, plants or breeding materials. Worse still, once a resource is privatized, it is likely that a community will no longer have the legal right to use it, may no longer be able to afford to buy it, and may lose the power to decide how it is used.

Case in Point: Mexican Yellow Bean
In 1994, Larry Proctor, the owner of a U.S.-based seed company, purchased a bag of commercial bean seeds in Sonora, Mexico.  He carried the beans back to the United States, where he picked out the yellow-colored beans, planted them and allowed them to self-pollinate. Two years later, Proctor applied for and won a U.S. patent on any dry bean (Phaseolus vulgaris) having a seed color of a particular shade of yellow.  He also obtained a plant variety protection certificate on the yellow bean variety he called “Enola.” In late 1999, armed with the patent and breeders’ right certificate, Proctor sued two companies that sell Mexican beans in the United States, charging that they were infringing upon his patent monopoly. As a result, shipments of Mexican yellow beans have been routinely stopped at the U.S. border, forcing Mexican bean farmers to forfeit valuable export income. In November 2001, Proctor also filed a suit against 16 small bean seed companies and farmers in Colorado.

Proctor’s yellow bean patent has not gone unchallenged, however. In December 2000 the International Center for Tropical Agriculture (CIAT) filed a formal request for re-examination of U.S. patent no. 5,894,079—also known as the yellow bean or “Enola bean” patent—with the U.S. Patent & Trademark Office (PTO) in Washington, D.C. CIAT is an international plant breeding institute that maintains a gene bank containing more than 27,000 samples of Phaseolus seeds collected from farmers’ fields, including beans that are identical to Proctor’s patented yellow bean. CIAT legally challenged the patent to keep these beans in the public domain.

Furthermore, plant geneticists recently performed genetic fingerprinting of Proctor’s patented yellow bean and found that it is identical to a bean variety of Mexican origin.  Nevertheless, more than three years since the patent was challenged, the PTO has not issued a final ruling. And even if the PTO decides to overturn the patent, the Patent Office makes no provision to compensate Mexican or U.S. farmers who suffered damages as a result of the unjust monopoly.

Patents and Monopoly Power
The yellow bean controversy starkly illustrates the power of exclusive monopoly patents to block agricultural imports, to disrupt or destroy export markets for Third World farmers, and to legally appropriate staple food crops or sacred medicinal plants. But it’s only one example: South Asian basmati, Bolivian quinoa, Amazonian ayahuasca, Peruvian maca and Indian chickpeas have all been subject to intellectual property claims that are predatory on the knowledge and genetic resources of Indigenous peoples and farming communities.

The 10-year-old United Nations Convention on Biological Diversity (CBD)—a treaty created to conserve biodiversity and promote fair and equitable benefit sharing—has failed to adopt meaningful regulations to stop biopiracy. By encouraging bilateral deals and contracts (often called “bioprospecting” agreements) that are linked to intellectual property and the concept of benefit sharing, the CBD has essentially facilitated the monopolization of biological resources. According to Alejandro Argumedo of the Indigenous Peoples Biodiversity Network, “Equitable benefit sharing is not achievable in the context of predatory patent regimes and in the absence of regulatory mechanisms that safeguard the rights and interests of farmers, Indigenous peoples and local communities.”

Battling Biopiracy
Fortunately, there is a global movement of resistance to biopiracy. A growing number of people’s organizations, institutions and governments have condemned biopiracy, defeated predatory patents, and defended the intellectual integrity of farmers and Indigenous peoples. At the last three meetings of the U.N. Convention on Biological Diversity, civil society and Indigenous people’s organizations hosted the “Captain Hook Awards” ceremony (www.captainhookawards.org) to highlight the most egregious cases of biopiracy, and to demonstrate that the CBD has done nothing to stop it.

The ceremony has also celebrated peoples’ organizations and others who have resisted biopiracy. For example, Indigenous peoples in Mexico were recognized in 2002 for defeating the U.S. government's $2.5 million bioprospecting project in Chiapas. And a coalition of Peruvian farmer and Indigenous people’s organizations were honored this year for opposing patent claims by U.S.-based PureWorld, Inc., on maca, a traditional Andean food and medicinal crop.

At the international level there is also growing recognition that patent regimes require urgent societal review, and that property “rights” must not be allowed to trample human rights. The U.N. Human Rights Commission has identified intellectual property as an obstacle to the rights of poor people in the global South. In 2002, an independent commission in the United Kingdom concluded that intellectual property rights impose costs on most developing countries—and do not reduce poverty.

Ultimately, the most important way to stop biopiracy is to strengthen and protect the control of local communities over the biodiversity they nurture, and to resist legal systems, international treaties or contract agreements that seek to privatize our rich biodiversity. 

Hope Shand is research director of the ETC Group (formerly known as RAFI) , an international civil society organization that is dedicated to the conservation and sustainable advancement of cultural and ecological diversity and human rights (www.etcgroup.org).

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