Pillaging of African biological resources continues
A new study documents additional
cases of suspected bio-piracy in Africa are based on a preliminary study
of patent applications lodged and patents granted in the US, EU and
As governments resumed 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
These suspected cases take the form of applications for or grant of
patents in the United States, Europe and elsewhere, adding to the thirty
six cases found in an earlier research project.
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].
The seven new cases of suspected bio-piracy in Africa are based on a
preliminary study of patent applications lodged and patents granted in
the US, EU and elsewhere. Further investigation is merited by African
governments, the report states, to determine conclusively whether
bio-piracy has occurred and what action to take.
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
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
The 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
Furthermore, 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 US are “being used to promote the misappropriation of
traditional knowledge and biological resources from the South”.
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.
The 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 South Africa and the regional
patent offices of the African states that are Parties to OAPI and ARIPO.
[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.
[ARIPO - African Regional Intellectual Property Organization, based
in Harare, includes Botswana, the Gambia, Ghana, Kenya, Lesotho, Malawi,
Mozambique, Namibia, Sierra Leone, Somalia, Sudan, Swaziland, Tanzania,
Uganda, Zambia and Zimbabwe.]
In one case study, Bayer Consumer Care (Germany) seeks patents on the
Madagascan Vernonia Extracts for skin treatments. The claim is to the
use of any extract from any plant of the Vernonia genus in Madagascar
for “improving the skin status”. In addition, Bayer makes specific claim
to eight Vernonia species.
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”).
The 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 Africa as medicines.
On 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 for Africa, its Malagasy corporate collaborators’ plants are
sustainably harvested and that a “premium” over market price is paid for
the raw plant material. A “premium” is paid in the form of new
classrooms and school supplies for children.
The report notes also that Serdex, Bayer’s French subsidiary that
produces the extract, is a member of the Swiss-based Union for Ethical
BioTrade. This Union is a private outgrowth “BioTrade” Initiative of the
United Nations Conference on Trade and Development (UNCTAD) and promotes
“sourcing [of natural products] with respect”.
When accepting Serdex as a member of the Union, BioTrade identified
unspecified areas for improvement. While the Union has a specialist in
intellectual property issues, it is unclear if its audit extended to
analysis of the ethics and novelty of Bayer’s patent claims, which
appear dubious, according to the report.
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.
On 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 Africa and which may
also constitute bio-piracy.
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
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.”
- Third World Network Features