Biopiracy

Marauding the world for treasure, they wear suits instead of headties

Photo by Sergey Semin on Unsplash

Biopiracy is the best way to describe the practice of traveling the world for the sole purpose of stealing intellectual property in genetic resources, even though it is not a real crime like its namesake, “piracy”¹ — but maybe it should be.

This week, a specialized organization of the United Nations, WIPO, the World Intellectual Property Organization² is finalizing an agreement that will protect genetic resources and associated traditional knowledge from large pharma companies who have rushed to patent these inventions in search of the next blockbuster drug, with no return to the Indigenous people who have the knowledge of how to use it. Sailing the seven seas, they searched the world marauding knowledge that was not patented or protected under western systems of law and claiming it as their own.

As early as 1985, there were efforts to curb this stealing, particularly after the Neem tree conflict which involved a traditional biologic used for dozens of ailments based on traditional knowledge in India. In 1985, a patent was obtained by a U.S. researcher on a seed extract process for the use of the Neem tree and sold to W.R. Grace, who obtained a patent in 1995 for a biopesticide (Neemex). In 2000, after decades of conflict between India and the U.S., the patent was revoked by the European Patent Council.³ Dozens more patents were also granted for other properties “discovered” by inventors for the Neem tree extracts, also up for revocation.

This international issue was addressed through the Convention on Biological Diversity, gaining enough nations’ signatures to go into effect, December 1993. Articles 8(j) and 15 recognizes the rights of Indigenous people to continue their traditional ecological management of the environment and the need to protect the intellectual property of indigenous peoples’ genetic resources and traditional ecological knowledge, respectively.

Art. 15 of the Convention on Biological Diversity reads, in part:

Access to genetic resources shall be subject to prior informed consent of the Contracting Party providing such resources, unless otherwise determined by that Party. . . Each Contracting Party shall take legislative, administrative or policy measures, as appropriate, . . . with the aim of sharing in a fair and equitable way the results of research and development and the benefits arising from the commercial and other utilization of genetic resources with the Contracting Party providing such resources. Such sharing shall be upon mutually agreed terms.

This was the first step in setting a framework for stopping biopiracy, charging the nations themselves with creating legislation to protect their own natural resources, but then also asking to share those resources in a fair and equitable way. By 2002, a guidebook had been developed for how pharma companies should approach the appropriate fair and equitable sharing of natural resources, called the Bonn Guidelines. These are voluntary guidelines and “are meant to assist Parties, Governments and other stakeholders when establishing legislative, administrative or policy measures on access and benefit-sharing and/or when negotiating contractual arrangements for access and benefit-sharing.”⁴

The Nagoya Protocol, signed in 2010 and entered into force in 2014, ensured that governments instituted focal points to contact about genetic resources in that country. In this way, each nation would have opportunities for benefit sharing and companies would have access that was appropriate to those genetic resources.⁵

What is missing?

For decades the Convention on Biological Diversity (CBD), Conference of Parties (COP), worked hard to implement Article 15 as well as Article 8(j) which broadly defines traditional environmental knowledge. But the practice of biopiracy continued. The University of Hawaii, had the audacity to patent the genome of the taro plant, considered an ancestor of the Native Hawaiians and a sacred plant of indigenous people of other Pacific Islands, and then charge royalties back to the farmers who had grown it for millenia! The patents were granted in 2002 and not surrendered by the University until 2006.⁶

Finally, the hole in the process — the point of applying for a patent — was addressed by the World Intellectual Property Organization — the closest thing to an international patent authority. In 2002, the Convention on Biological Diversity, Conference of Parties, asked WIPO to outline how they would protect GR (Genetic Resources) and TEK (Traditional Ecological Knowledge) in granting patents through disclosure requirements. The Technical Committee produced the WIPO Technical Study, made final for the Convention on Biological Diversity, Conference of Parties in 2004. It was subsequently updated in 2017, 2020⁷ and now there is an effort at this current meeting to implement these disclosure requirements through an intellectual property treaty in 2024.

For the next two weeks in Geneva, Switzerland (May 13-24), the WIPO diplomatic representatives will discuss and possibly sign a new treaty that will require a simple disclosure of what country is the origin of their invention, on their patent applications. I have been observing the opening talks and as usual, these international meetings begin with statements from all the parties, NGOs and IGOs, usually taking up the first two days. But these are important steps because it means everyone has their moment to be heard. As the new President (Brazil) of this meeting declared at the close of the nations’ statements, “no one is rushed; no one is hushed.”

Countries, even the United States, spoke in support of the treaty. However a couple statements opposing the treaty are worth noting. The Japan Intellectual Property Association, JIPA, (home to the Ainu Indigenous peoples⁸), opposed the new agreement stating: “We are strongly concerned about . . imposing this unnecessary burden of disclosure requirements on applicants, which have nothing to do with patentability.”

The burden of disclosure to which the JIPA refers is simply, from which country did this intellectual property originate.

IFPMA, the international association of pharmaceutical companies, spoke out against the new treaty, stating in what has to be the most tone-deaf comment of the day, “There has been no substantial evidence or assessments to justify the need for this instrument.”⁹ That statement alone is substantial evidence as to why the international association of pharmaceutical companies need guardrails on their biopirate ships.

Final thoughts

WIPO needs to adopt some stronger enforcement tools for verification of the disclosures, but as we see, international law moves very slowly, as it probably should. So at the next meeting, CBD and WIPO Parties should enforce and require verification of disclosures, that there has been informed consent as well as the disclosure of the country of origin in their patent applicants or make them “walk the plank”¹⁰ if they lie on their application.

This week marks two years of unintended consequences, and your support is greatly appreciated! Thank you for reading.

In case you are wondering, the article that received the most reads in the two years of “unintended consequences” was October 1, 2023, “The Law of Trees” with almost 4,000 reads.

1. The United Nations Convention on the Law of the Sea (UNCLOS) Article 101 defines piracy as: “any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew of the passengers of a private ship or a private aircraft. . . on the high seas against another ship or aircraft. . . [and] any act of voluntary participation [in a pirate ship].”

2. https://www.wipo.int/wipolex/en/text/305616

3. https://www.nature.com/articles/35012778

4. https://www.cbd.int/abs/bonn

5. https://www.cbd.int/abs/about

6. https://scholarspace.manoa.hawaii.edu/server/api/core/bitstreams/d1f5cc39-8e53-4595-b116-992722a0a356/content

7. https://www.wipo.int/edocs/pubdocs/en/wipo_pub_1047_19.pdf

8. https://en.wikipedia.org/wiki/Ainu_people

9. Comment from live stream and transcript of Day 2, May 14, 2024, WIPO Meeting, Geneva.

10. https://www.collinsdictionary.com/us/dictionary/english/walk-the-plank