Patent frauds the odds are stacked against developing countries

In more recent times, an indigenous plant in Ethiopia that has been used for generations in a variety of ways has suddenly become a subject of patent protection in industrialised countries. The story of endod rings in our minds with piercing familiarity as many other cases occur of indigenous plants suddenly becoming the property of firms or other institutions in industrialised countries. The specific and generic uses of some plants have been known in indigenous communities for years, but this knowledge has abruptly come to belong to somebody else. Such declarations are received with impunity in industrialised countries. Usually, the plants are subjected to 'scientific testing' and 'systematic verification', and the data which such laboratory activities produce tend to justify ownership. What is not really appreciated is that the data only tends to confirm what has already been known for generations. A few studies here and some clinical tests there become the basis of what are considered as 'original discoveries'. With this data (derived from knowledge hitherto well-established) and a little bit of 'scientific coating' of facts already known, property rights change places.

This is exactly what happened to endod. The berry was known to indigenous community members for ages in Ethiopia before systematic studies began to be carried out by Ethiopia's own 'son of the soil', Dr Aklilu Lemma. Lemma's research sensibilities were aroused when he noticed an abundance of dead snails at a point where the use of endod in laundry work was common. It became apparent that endod powder had fatal impact on snails, the deadly carriers of schistosomiasis and bilharzia. With this discovery, Lemma made efforts to develop a low-cost molluscicide after extensive field trials in Ethiopia. His endeavours were geared to replace the expensive chemical synthetics imported from industrialised countries. One of the remarkable characteristics of endod is that it could be widely grown, was easy to process, and was cheap to cultivate. It is also a natural detergent, soap and shampoo. This fact is interesting in that the berry powder is biodegradeable in 24 hours. Nature has its own answer to a lethal problem.

The institution that slowed down Lemma's progress and even delayed its widespread application in Africa was none other than the World Health Organization (WHO) itself. WHO insisted that the data emerging from Ethiopia was unscientific at best and unreliable at worst. Only data coming from well-established medical research centres can be beyond reproach; the developing countries are not known to possess research centres with such repute and data produced in these countries was not considered to be reliable. This attitude to research work emanating from developing countries is most unfortunate. It is responsible for scientific retrogression in Africa and many countries in the South.

Lemma himself is irritated by this widespread mentality. He notes:

... the root problems of research in Africa are not only lack of adequate facilities and funds, but also the biases and reservations of some individuals and organisations in industrialised countries who find it difficult to accept that any good science can come from our part of the world . . .

It also needs to be mentioned that property institutions in industrialised countries are also stacked against property regimes existing in the South. These biases, reservations and institutions have thus a reinforcing effect on each other.

One of the fundamental biases exhibited by WHO is the dissemination of the idea that only those products favoured by it are wholesome. Those lacking their express approval should not be developed or marketed. This is why a commercial molluscicide was recommended for use worldwide.

The endod case is now becoming a contentious issue because it promises to be a multimillion dollar product with benefits streaming to the 'discoverers'. Preliminary tests in the USA have shown that it clears water pipes that are blocked by zebra mussels. Municipal authorities heaved a sigh of monetary relief after knowing that water cleaning and supply facilities will no longer suffer disruptions. The fisheries sector has also raised expectations by announcing that the industry's spawning areas will no longer be threatened by massive losses.

We are witnessing a rising tide of anger because for too long products developed, cultivated and conserved through generations of selective interbreeding are being appropriated in the name of foreigners. One American university has already applied for a patent on endod. The indigenous people, or Ethiopia at large, are not among the key beneficiaries. No doubt Dr Aklilu Lemma has been brought into the equation of benefits, but the Ethiopians who have all along conserved the resource will not receive a penny.

Now that the product belongs to people other than the Ethiopians, the chances of producing high-yielding varieties looms large. The spectre of genetic erosion is indeed very real. The most immediate problem concerns growth in demand well in excess of the natural regenerative capacity of endod. As such, indiscriminate overharvesting of endod is a strong possibility because of the many poor Ethiopians who would take advantage of earning a few meagre dollars. The agents of collection would exploit the desperation of poor folk to overharvest endod.

The ownership of genetic resources and, indeed, of medicinal plants is likely to precipitate major tensions between biotechnology firms and the developing countries, particularly where such resources have been directly conserved and utilised by specific indigenous communities. For the time being, neither the international community nor the national governments in the South recognise indigenous ownership rights. Few have taken steps to lend the necessary legal support. An important policy consideration for national governments is to recognise the rights of indigenous communities by giving them the necessary legal cover. Access to medicinal genetic resources should also be regulated to prevent the kinds of destruction already described earlier.

The regulated access to medicinal germplasm is a crucial policy option if developing countries are to reap benefits from the commercialisation of research results. It is important to recognise that the North has used germplasm resources from the South to produce new varieties of crops. Nearly all germplasm-derived innovations were patented without any income reaching the communities from where germplasm was sourced. Some examples may suffice here. A community in Nigeria has been using an indigenous berry as a sweetener for ages. Local researchers identified the berry and worked with British scientists to extract thaumatin, a sweetener used in the confectionary industry. The gene was patented in the UK. The community that conserved the genetic resource and provided the eth-nobotanical lead is not receiving any benefits. By the same token, Nigerian scientists also participated in the identification of the cowpea trypsin inhibitor, a gene known for its insect-killing ability. Again, the local research contribution did not benefit from the commercialisation of the gene (which was patented in the North). In Kenya, we have the sad story of Maytenus buchananii, a medicinal plant species used by the indigenous Digo community to treat cancerous conditions. The US National Cancer Institute took the whole stock to feed their research programme. The rights of the Digo community to this resource was not recognised. The rosy periwinkle, a species native to Madagascar and Jamaica, is now cultivated extensively in the USA. Its indigenous use as a potent herb gave a research company in the USA the essential ethnobotanical lead to explore its anti-cancer medical properties. Today it is the source of vincristine and vinblastine, two powerful drugs against cancer and childhood leukaemia. Indigenous communities in Madagascar and Jamaica have received no compensation for conservation and ethnobotanical leads. There are many more instances of this kind where indigenous property right questions are effectively sidelined.

Efforts to recognise traditional and indigenous property rights over medicinal germplasm will not only ensure income streams, but also help in fostering programmes among indigenes who conserve genetic resources in all their diversity.

As many more products in Africa and elsewhere in the Third World face similar fates, the question that arises is what regulatory and institutional mechanisms need to be put in place to protect indigenous resources?

My suggestion is that governments in developing countries must first recognise the right to these resources before commensurate recognition is to flow from the industrialised countries. This is a vital first step. Second, developing countries must make every effort to document and build databases on all existing indigenous knowledge related to biodiversity. Also to be documented and preserved, is how specific cultures have used plants and other resources, including soils, to treat ailments. I understand that some soils in Saudi Arabia are capable of treating leprosy. Tons of the soil are being freighted to the USA. The Arabs are inebriated with income from oil, so no resistance is exercised on 'small-time' resources.

The gathering process should seek financial assistance from goodwill donors without strings being attached. It is imperative that the documentation process becomes a national exercise. The knowledge should then be the national property of the state in question. Any user of it should first obtain the express permission of the country where the knowledge is preserved. If two or more states have the same resource, they would stand to gain if interstate collaboration is effected. This way, the nationally-owned knowledge that is exappropriated by new 'discoverers' is likely to be contested.

It is essential that a nationwide survey, research and documentation effort is mounted as a matter of priority. The nation can then trade this knowledge for royalties in the event of commercial success. The field of ethnobotany becomes indispensible in this respect.

Recently, new institutional arrangements have come into existence as part of the wider effort to conserve medicinal genetic resources and to utilise them for commercial reasons. Shaman Pharmaceuticals, for instance, has designed a system of response to the needs of native forest communities which ensures that not only does it conserve medicinal plants in all their diversity, but also returns a portion of the profits derived from commercialisation of plant-based drugs to the country or countries involved in collection or screening (King, 1992: 7). Unfortunately, most indigenous communities may seek forms of compensation that accelerate their transition from native to Western cosmopolitan lifestyles. What specific structure and content should compensation strategies take is a matter that requires considerable thought and imagination. The Shaman strategy includes a proposal to establish clinic or dispensary facilities for illnesses that native communities are unable to cure. Shaman has also been involved practically in educational campaigns to reinforce conservation ethics among members of indigenous cultures. For example, copies of data on medicinal plants studied by the company were given to local school teachers for instruction.5 Another approach, which should in any case build on the first strategy, that is, build knowledge of indigenous cultures in relation to biodiversity and soils, is captured by the InBio-Merck model.

It is not clear to what extent the model provides for InBio's acquisition of crucial biotechnological techniques for its own future development. The range of techniques is wide, and InBio can seek to obtain fundamental genetic engineering and other relevant technologies from Merck for varietal enhancement. In the final analysis, InBio should address two basic issues. (1) How will it resolve indigenous rights of ownership of genetic resources in the face of increasing international pressure to standardise the intellectual property right system? (2) What contractual strategies will it develop to acquire technologies (for example genetic engineering, protoplast fusion, etc.) other than the basic conventional ones needed for chemical prospecting? Many countries are watching the Costa Rican case with unmistakable enthusiasm, and its success will transform InBio into a major international consultancy unit for many biodiversity-rich developing countries.

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