Appropriating Life: Biopiracy as Neocolonialism

-- By LaurenPackard - 10 Mar 2015

I. What is biopiracy?

The United States Patent and Trademark Office (“PTO”) engenders ownership to any person or corporation who can show novelty, utility, and non-obviousness. Such a scheme enables ownership of life itself.

Bioprospecting describes the process whereby pharmaceutical companies discover and commercialize new products based on biological resources, usually plants. Oftentimes Big Pharma, wielding US intellectual property law, appropriates and then commercializes generations of indigenous knowledge without compensating indigenous peoples. This form of exploitation is known as biopiracy. Some examples:

Neem Tree

Indians have used the neem tree, which has anti-fungal properties, for millennia as pest control and as medicine. In 1995, the European Patent Office granted a patent on a neem derivative to the USDA and to Grace, a multinational chemical company. In 2000, a coalition of European and Indian green groups successfully opposed the patent.

Rosy Periwinkle

Africans have used the rosy periwinkle, which is native to Madagascar, for centuries, primarily to treat diabetes. In 1958, scientists patented two rosy periwinkle derivatives—vinblastine and vincristine. The former treats childhood leukemia and the latter treats Hodgkin’s lymphoma. Worldwide sales are over $113 million a year.

Basmati Rice

In 1997 US corporation RiceTec? was granted a patent on a “novel line” of Basmati rice crossed with a semidwarf variety of Basmati rice. Indians have been breeding and growing Basmati rice for centuries and India produces about 650,000 tons of Basmati rice annually. The Indian government intervened and invalidated several claims in the patent and limited it to three strains of rice.

The US has also granted American companies with patents on Gabonese oubli berries (granted in 1994, hit the market in 2009 as artificial sweetener “cweet”), a variety of Mexican yellow bean (granted in 1999 and revoked in 2008), Bolivian quinoa (granted in 1994 and abandoned shortly after) and Indian turmeric (granted in 1995 and revoked in 1997).

While biopiracy threatens the autonomy and standard of living of those whose knowledge is appropriated, its implications are further-reaching. Intellectual property law now suffuses the globe and concentrates monopolies (on life, no less) in the hands of a few at the expense of everyone else.

II. Intellectual property laws as a mechanism for neo-colonialism

In 1994 the WTO began administering the Agreement on Trade-Related Aspects of Intellectual Property Right (TRIPS). TRIPS introduced intellectual property rights into international trade for the first time—essentially, it requires all developing nations to conform the basic tenants of US intellectual property law. The US Supreme Court first allowed a patent on a living organism in 1980. Since then, patents on gene sequences and particular protein functions have become commonplace. (see Diamond v. Chakrabarty).

Western intellectual property law is antithetical to the open-access and community-generated knowledge indigenous communities have developed over generations. Furthermore, patents are expensive to file and process. Consequently, although developing countries are the source of 90% of the world’s biodiversity they hold fewer than 5% of all patents worldwide. According to one estimate, the US has exploited over $2.7 billion’s worth of knowledge from developing countries. And bioprospecting will practically curtail or even completely preclude indigenous peoples’ access to the plants on which they’ve relied for centuries or millennia—patents may make their use illegal, or pharmaceuticals will practically preclude their use by co-opting the supply and access to these plants.

Spanish sovereigns sent Christopher Columbus on his journey with “letters patent” granting him the power to claim any land he discovered that was not governed by white Christians. So—is biological life the next frontier of unclaimed territory? And is intellectual property the West’s religion du jour?

III. A potential solution

In 2010, the UN’s Convention on Biological Diversity adopted the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization. The Nagoya Protocol has been ratified by 59 states (including the EU). The US has signed but not ratified the treaty.

The Nagoya Protocol seeks to address the ethical pitfalls of bioprospecting by imposing access obligations and benefit-sharing obligations between the jurisdiction where the genetic resources are located and the contracting party. The access obligations require clear rules and procedures for obtaining prior informed consent and subsequent permits. The Protocol requires “fair and equitable” benefit-sharing between the parties on mutually agreed-upon-terms—benefits can be monetary or nonmonetary (e.g. royalties). And, notably, the contracting parties must comply with the domestic laws where the genetic resource is extracted.

IV. Does it go far enough?

The Nagoya Protocol presents practical impediments to success: patents as they stand do not require disclosure of the location where genetic resources were “found” (which may preclude fair benefit-sharing) and developing countries require a large amount of capacity-building until their institutional competence regarding intellectual property meets our Western standards.

The most damning feature of the Nagoya Protocol is that it still advocates strict adherence to Western intellectual property ideals. Genetic resources will still have “an owner”—the countries wherein these resources are found merely get more oversight in regards to their relationship vis-à-vis would-be colonizers. Those countries also get a bit more of the proceeds from the appropriation and exploitation of their indigenous knowledge. Perhaps Monsanto will reinvest some profits in India by building a lab there, so nearby residents can work as lab technicians instead of living by subsistence—in other words, developing countries can support their occupiers’ efforts and more efficiently perpetuate Western legal constructs. The Protocol says that’s “progress.” But it is merely entrenching colonists more deeply into developing countries.

An inventiveness requirement in lieu of the current non-obviousness and novelty requirements would functionally eliminate patents on molecules or other forms of life.

At the heart of the draft is a contradiction. The model of idea ownership that underlies the patent system is at odds with the way human knowledge discovery is really organized. But "biopiracy" only makes sense as a concept if something is being stolen, which is only the case if that something is otherwise owned.

The problem is misdescribed, which is what gives rise to contradiction. The scope of patentability in society A is wrongly allocated, which gives a reason to enclose (rather than steal) the knowledge generated in a communal fashion in society B. The problem is resolved by sharply restricting or eliminating patent law in society A, a process which can be pursued without reference to society B's virtuous communitarians at all. We should have been done this at the end of the 20th century, as a few people (me among them) then urged. Now that the Chinese Communist Party has realized the value to its own purposes of government-created monopoly rights protected by international trade law, we will not so easily deal with what back then was basically a pharmaceutical company protection program with the US IT industry attached.

But propertizing "traditional knowledge" is no step in the direction of a useful answer. It's just another payoff that helps to stabilize the system of misappropriations that is "intellectual property."

You can find, in another draft, the courage to abandon not only patent law but the impression that you need something other than patent law with which to destroy patent law.