In 1981 Loren Miller, a director of a natural medicine company, returned to the U.S. carrying a sample of the hallucinogenic plant ayahuasca.
Miller’s proposal was to have the sample, apparently given to him by an indigenous tribe in Ecuador, patented as a new plant variety of his own making. The director, despite not meeting with basic patent requirements, was soon successful in his application with the U.S. Patent and Trademark Office.
To the consternation of indigenous groups, at the stroke of a pen, Miller had won the exclusive right of production and sale of a plant that had for thousands of years been at the centre of the spiritual and medicinal practices of indigenous communities across the Amazon.
What Miller did was a particularly egregious example of a practice that critics now term”biopiracy”. This results in the knowledge and genetic resources of indigenous peoples being appropriated by outsiders who register legal monopolies of control over the resource without any regard or compensation given to the original indigenous property owners.
Since Miller’s time it has become a practice involving the worlds biggest corporations who have made claims from everything from to basic foodstuffs like rice to Amazonian plants whose active ingredients drive a pharmaceutical industry worth billions of dollars.
Now however, Peru, the home of ayahuasca, is leading the world in a fight against biopiracy.
Peru has a raft of legislation on its books that provides a simple solution to the problem of a corporation in a far away country lodging a patent claim on a crop or plant endemic within its borders: ignore it.
As Andrés Valladolid of Peru’s Institute of Competition and Intellectual Property (INDECOPI) explained at an APEC meeting last month, as far as Peru is concerned “the State exercises sovereign rights over its genetic resources, while indigenous peoples have rights over the collective knowledge they have created, developed and preserved over the centuries.”
If an outside entity claims ownership over indigenous knowledge or resources under Peruvian law, it appropriates something that cannot be appropriated and it is automatically invalidated.
Valladolid heads a Commission against biopiracy, one of the only insitutions of its kind in the world, which actively seeks out international cases of biopiracy to formally invalidate them and alert the authorites in the countries concerned.
Maca and other successes
The commission certainly has its work cut out.
According to a recent report there are 11690 patent applications on genetic resources native to Peru. Amongst them are claims on symbolic Peruvian foodstuffs, including; quinoa, purple maize, lúcuma, cat’s claw and, perhaps the most contentious of all, maca.
The turnip-like root plant that grows in the rugged mountainous climbs of Peru has seen an explosion of demand in recent years due to its alleged superfood like qualities. With it has come a mad dash, mainly led by Chinese agro-exporters, to take maca and grow it outside of Peru raising fears of patented GMO versions of maca dominating the market in years to come.
Nevertheless, the commission has invalidated six patents relating to maca registered for nutritional supplementation, insomnia treatement and testosterone therapy uses and is currently fighting a patent claim from as far away as Poland.
The commission has also had success in invalidating patent claims made in countries as far afield as Japan, Korea, France and the U.S. on yacón (an Andean plant used for treating diabetes) and sacha inchi another superfood originating in the jungle of Peru that has weight loss and dermatological benefits.
For all its good intentions however, Peru’s anti-piracy legislation is only effective as other governments around the world are willing to allow. Peruvians might be free to cultivate as much as their own produce as they like but they cannot export into foreign markets due to infringements of patent rights recognized in those countries.
All this underlies the necessity of a wider challenge to international intellectual property regimes, but recent developments are only moving in the opposite direction. The Trans Pacific Partnership (TPP) agreement, a trade agreement between 12 Pacific rim countries which is widely seen as one of the most significant configuration of global trade rules ever, commits its signatories (of which Peru is one), to an IP regime far more favorable to the spurious claims of corporations against original genetic resource holders than anything seen in previous agreements.
Where the WTO’s Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) essentially internationalized the already lax IP requirements of the U.S. IP regime, article 8.1 of the TPP agreement outlines instead that “patents shall be available for any new forms, uses, or methods of using a known product; and [these] may satisfy the criteria for patentability, even if such invention does not result in the enhancement of the known efficacy of the product”.
Also contained in TPP are provisions that make it easier for patents on flora and fauna to be applied and entrenched, and provisions that increase patent term limits and weaken the conditions on which they can be opposed.
Is another way possible?
Perhaps the biggest drawback of Peru’s approach centers on the fact than rather attacking the concept of intellectual it property itself, it only seeks to carve out Peruvian claims and legacy payments to the Peruvian state, which then has to be trusted to pass on the money to the communities who have historical claims to genetic resources.
As Valladolid states “The objective is not to impede the use of our resources by others, rather it is to ensure that it is done legally and that it benefits the sustainable development of the country.”
Paradoxically, the Peruvian state could be more zealous in enforcing a foreign patent claim against its own citizens where the patent owner makes good on providing compensatory payments.
As the case with maca shows however, the primary concern of local cultivators is to directly benefit from the genetic resources around them. Many argue that this is precisely the freedom they should be given, rather than trying to help them indirectly thorugh patent protections.
The outlook of many Peruvian growers would certainly seem to be more aligned with a growing body of economists, lawyers and philosophers who argue that IP is a false property right that at best hampers competition and at worst is an immoral assault on freedom.
As Kathy Montero, a maca distributor told Latin Correspondent, “people will demand Peruvian maca over Chinese maca not because of patent protection, but because of its unique quality. What is needed to maintain our advantage are policies that will break down barriers abroad, encourage people to grow more and remove the incentive to sell on the black market. We do not fear competition.”