TWN Info Service
on WTO and Trade Issues (Nov09/08)
Pls find below a story on a recent report on 7 new suspected cases of bio-piracy of African biological resources and traditional knowledge titled "Pirating African Heritage: The Pillaging Continues" by a South African NGO, the African Centre for Biosafety.
(The full report is available at:
I hope you find it to be useful.
of African biological resources continues, study finds
Geneva, 6 Nov (Riaz K. Tayob) -- As governments prepare to resume negotiations on an international regime on access and benefit sharing under the United Nations Convention on Biological Diversity on 9 November in Montreal, with combatting bio-piracy as one major goal, a report has found seven new suspected cases of bio-piracy of African biological resources and traditional knowledge.
suspected cases take the form of applications for or grant of patents
The report, "Pirating African Heritage: The Pillaging Continues" by the South African NGO, the African Centre for Biosafety, is a continuation of its 2006 study "Out of Africa: Mysteries of Access and Benefit Sharing" which found suspected bio-piracy across the continent [see SUNS #5984 dated 13 March 2006].
seven new cases of suspected bio-piracy in Africa are based on a preliminary
study of patent applications lodged and patents granted in the
The seven cases include claims from universities, government departments as well as small and large companies. The claims relate to a wide range of products including for anti-aging (for example, by luxury goods maker Louis Vuitton under its Christian Dior label), skin-care, sexual dysfunction, viruses and vaccines, insect repellents and possible cancer treatments.
The report states that the seven case studies on patent applications or patents granted do not meet the fundamental requirements of patentability: novelty (the invention cannot duplicate something that already exists) and inventive step. The key question that must be asked is whether a patent examiner would have granted the patent had the existence of prior art been disclosed to them [as this obviates novelty].
Patent applicants, the scientific community, business and industry and government agencies in the North generally, the report states, do not disclose the existence of prior art in their patent applications.
patent examiners rarely consider the traditional knowledge held by local
and indigenous people and published in journals, databases and periodicals.
The report charges that the patent system in Europe and the
The report contends that the illegality of a patent cannot be cured by the existence of prior informed consent, benefit sharing or so-called fair trade agreements.
case studies have patents pending or granted before the US Patent and
Trademark Office (USPTO), the World Intellectual Property Organization
(WIPO), or the European Patent Office (EPO) and some include stated
potential applications in
[OAPI - Organisation Africaine de la Propriete Intellectuelle (African Intellectual Property Organization), based in Yaounde, includes Benin, Burkina Faso, Cameroon, Central African Republic, Congo, Cote d'Ivoire, Equatorial Guinea, Gabon, Guinea, Guinea Bissau, Mali, Mauritania, Niger, Senegal, Chad, and Togo.
- African Regional Intellectual Property Organization, based in
one case study, Bayer Consumer Care (
The plant extract is wholesaled by Bayer to companies that use it as an ingredient in upmarket retail products. The creams with a small amount of extract sell for between US$49-79 for a one half to one ounce (14-28 gram) container. The report states that with Madagascar's per capita gross domestic product of US$377 (2007), it implies that an average Malagasy could exhaust his or her entire annual income on seven jars of the cream containing about 2 grams of the relevant ingredient ("Ambiaty").
report discloses, on the alleged novelty of Bayer's patent claims, the
documented traditional use of the ingredient in herbal steam baths,
and its use in dyes. Bayer's "patent application makes no reference
to these and other traditional uses of Ambiaty." It also criticises
the scope of the application as being "remarkably broad",
pointing out that Vernonia is used all across
the face of it, Bayer's patent claims appear to be bio-piracy, the report
states. The company claims that its business is ethical and beneficial
report notes also that Serdex, Bayer's French subsidiary that produces
the extract, is a member of the Swiss-based
accepting Serdex as a member of the
The report recommends that Bayer be asked to back its fair trade claims with real numbers - what prices are paid per kilogram to plant collectors, what is the yield in plant extract, and how much income does the company and its corporate customers derive from sales.
Bayer's patent applications, the report concludes that there is strong
evidence that the company is patenting traditional medicinal knowledge
and resources. The claims are also very broad, applying to many species
that are also found in other parts of
Another case involves a patent application by Dicotyledon AG (Sweden) on extracts from Neobeguea mahafalensis, a tree commonly called "handy" which extracts, it claims, have a "sexual enhancing effect" and can be "used for treatment of sexual dysfunction".
The report states that Dicotyledon may want to claim it as its own but it has long been used as an aphrodisiac in traditional Malagasy medicine. There is no indication in Dicotyledon's patent application or on its website that it has any intention of sharing its bounty on equitable terms or otherwise.
However, the application does make the concession that N. mahafalensis is already used as an aphrodisiac in Malagasy traditional medicine and lists at least eleven citations of traditional use for sexual functions in the scientific literature.
The report states that Dicotyledon advances its patent novelty argument by insulting the holders of the knowledge of the plant: "Dicotyledon states that Malagasy traditional healers use so many plants for sexual enhancement that not all of them could possibly work." And further claims that Malagasy healers provide inaccurate information to researchers and that they lack scientific rigour in identifying and characterizing plants.
It attacks traditional medicine by asking patent examiners to ignore documented traditional use by stating that "reports on presumed medical effects of plants based on indirect information obtained from local traditional healers and alike is highly unreliable and can't be used in any practical sense for treatment of medical conditions."
Dicotyledon's application concludes, "the studies cited above could not have led anyone skilled in the art of plant ethnomedicine [to conclude] that Neobeguea mahafalensis possesses any particularly useful properties vis-a-vis treatment of sexual dysfunctions."
This case raises an issue that developing country governments has raised repeatedly in discussions on traditional knowledge and practices as prior art in the context of patent applications, at the World Trade Organisation, WIPO and Convention on Biological Diversity.
The case study "Prettier Skin for the Conspicuous Consumer from Patented African Cardamom" cites Moet Hennessey Louis Vuitton LVMH (France) as the applicant claimant on "The comprising of an Extract of Aframomum angustifolium or Longoza Plant".
its cosmetics brand Christian Dior S. A., LVMH is selling products with
the seed extract such as "Dior Capture Totale Multi-Perfection
Correction Serum". The "serum" costs US$135 for a one
ounce (28 gram) container. Marketing material states that the "secret"
of the expensive product is A. angustifolium, which is described as
"a rare revitalizing plant grown only in
plants have a number of food and traditional medicinal uses in various
Even though LVMH attended a recent meeting of the Convention on Biological Diversity regarding access to genetic resources and benefit sharing, the report writers were not "able to find any information to indicate that LVMH has a benefit sharing agreement in place to share the profits from its A. angustifolium products."
the study "New Drugs from East African Cussonia Trees", the
applicant claimants are the Universities of Basel and
The Swiss "inventors" concede that "Kenyan researchers noted in 1986 that the plant is traditionally used to treat mental illness and that in 1964 noted its traditional use in treating epilepsy," the report states. It questions that basis of the claim that the drug is novel and inventive.
"It appears that it would be more accurate, however, to say that the Swiss institutions have used their own Western methods to confirm African traditional knowledge about the plant - rather than inventing something themselves - when it already existed!", the report stated.
other cases in the report are: "Lice Treatment from Africa's Lemon
Bush"; "Viral Prospecting: Looking for Vaccines in the Blood
of African Hunters"; and "
In the conclusions, the report states that, "African terrestrial and aquatic biodiversity, and even human biological samples, continue to be claimed as the exclusive intellectual property of corporations and other institutions. Adding to the exploitation and gross inequity, these African resources are often patented for use in expensive luxury goods or healthcare products that relatively few Africans can afford and which do not serve most Africans' needs."
The report recommends that more in-depth research should be undertaken to confirm, challenge and further document misappropriation of African resources.
(The full report is available at:
http://www.biosafetyafrica.net/index.html/index.php/20090810233/Pirating-African-heritage-the-pillaging-continues/menu-id-100029. html) +