Biopiracy news from Brazil, Guyana and Mexico

BIOPIRACY: INDIANS WANT PATENT CHIEFS PREPARE INTERNATIONAL LAW SUIT AGAINST SCIENTIST WHO REGISTERED INDIGENOUS KNOWLEDGE

Luiza Villamea and Max Pinto (photos)

Sand Creek, Guyana

In her village in a far corner of Guyana known as Palm Grove, the Wapishana Indian Evelyn Gomes keeps a nut called tipir for health emergencies. According to her people's tradition, the grated tipir stops hemorrhages and prevents infections, in addition to being a contraceptive. "The tipir is also abortive. I learned its use from my mother, who learned from her mother," says Evelyn. On the other side of the border with Brazil, the Wapishana Leandro de Castro Pereira holds to the knowledge of his ancestors as he fishes with neither arrow or net. A resident of the Malacacheta maloca (or village), near Boa Vista (capital city of Roraima), Leandro macerates the leaves of a plant called cunani, forms it into a little pie and throws it into the water. "The fishes go crazy. They start to jump, and after a while, they die," he says. "Then, you just catch them and eat them, like our forebears. The cunani doesn't pollute the water or affect the taste of the fish."

Following litigation between Brazil and Great Britain -- by which Guyana was once colonized -- the Wapishana were divided by an arbitrary border in 1904. Because of tipir and cunani, now they are more united than ever, as they prepare for a battle in international courts. The Wapishanas are challenging British chemist Conrad Gorinsky, who registered the property of those plants as his findings, in European and United States patent offices. The problem is that, before isolating the plants components, Gorinsky spent long periods of time among the Wapishanas, doing research precisely on medicinal plants. "For many days and nights I was his guide in the jungle," recalls the Wapishana Ashpur Spencer, 83 years old.

A health agent in Sand Creek, a village that is home to 800 Wapishanas, Louise Randhamil remembers Gorinsky well. "He used to talk about sharing the outcome of his research projects. What he has done is absurd, because Picky knows how much we need a refrigerator and solar energy to store the vaccines," she complains, referring to the scientist's sister, who also used to visit the region. Sand Creek's chief, Eugene Andrew, is not interested in asking for a specific donation from the scientist. He demands justice. He believes that it is fundamental to demonstrate that Gorinsky would not have isolated the plant's components or registered their properties without the help of his people. "He took the knowledge of our ancestors and wants to sell it to the industries as if he were the discoverer."

Andrew hosted a delegation of four Brazilian Wapishana chiefs who, in a recent meeting, had called on their people to bring suit against Gorinsky's patents. "We are a united people and need to recover the memory and the knowledge of the elders," Norberto Cruz da Silva, the delegation leader, affirmed. "The difficulties we have to overcome just to meet together are nothing compared to what lies ahead," he said, referring to the difficult access to the village, which is reached by crossing the wide and wild Rupununi river, in a region with no bridges. They communicate in their own language, though the residents in Brazil also speak Portuguese, and those who live in Guyana speak English. Even the English-speaking Wapishanas were taken aback as they read copies of the patents. The wording was obviously inaccessible to these lay readers.

The first patent granted to the scientist covers the Greenheart tree (Ocotea rodiaei), which produces tipir. According to his description, the active ingredient of the plant is an efficient antipyretic, capable of preventing come-back cases of diseases such as malaria, and also useful in treating tumors and even the AIDS virus. The substance was baptized by Gorinsky as rupununine, a reference to the region's main river. The other active ingredient registered by the chemist, polyacetylene, was obtained from the Cunani bush (Clibadium sylvestre). It is prescribed as a powerful stimulant of the central nervous system, as a neuromuscular agent capable of reverting cases of heart blockage.

"Every single Wapishana needs to know what is happening," says Tony James, coordinator of the Amerindian People's Association (APA), in Georgetown, Guyana's Capital. There are about 16 thousand Wapishanas, 10 thousand of whom live in Guyana. "Many started pushing for a law suit after the ayahuasca case," he added, referring to a medicinal drink commonly used by Amazonian peoples. At the request of indigenous peoples from Ecuador and Colombia, the United States Patents Office last November revoked the ayahuasca patent, which had been granted to an American businessman.

Together with the Brazilian chiefs who went to Guyana, Tony James was one of the signatories of a petition sent by the Wapishanas to Senator Marina Silva (PT-Acre), in which they asked her to help them challenge the patents on rupununines and polyacetylenes. Under the Convention on Biological Diversity, signed in 1992 by 144 Countries in Rio de Janeiro, when products are obtained from traditional knowledge, their origin must be recognized, and part of the royalties should be reserved for the community which holds the information. Since then, the Philippines, Costa Rica and the countries of the Andean Pact -- Bolivia, Colombia, Ecuador, Peru and Venezuela -- have adopted laws to control access to genetic resources. In Brazil, Senator Marina Silva is the author of a bill that regulates the matter. "We are an auxiliary force, though we will collaborate as much as we can to mobilize institutional support," Marina assures.

At least one institution has already responded to this appeal: the Brazilian Bar Association (OAB), represented in Sand Creek by lawyer Gisela de Alencar, an environmental law specialist. "This is a model case, because Gorinsky has stated in the text of both patents that the Wapishanas used those plants," Gisela affirms. Informed by ISTOÉ about the suit to be filed, Gorinsky, 63, insisted that rupununines and polyacetylenes are his discoveries. "I have dedicated my life to this work. I have registered specific components that had not been decoded. I have made all the intellectual effort, and spent thousands of dollars from my own pocket. Would the Indians ever invest in this?," reacted the scientist, highlighting that the substances have not yet been marketed. "But no one can take a patent away from the inventor. We can't talk about how to share the pie if there's no pie," adds Gorinsky, the son of a Polish father who settled in Guyana after meeting his mother, the daughter of Atorai Indians.

All the countries in which Gorinsky has taken out patents are signatories to the Biodiversity Convention except for the United States, which has not yet ratified the accord. Because of this, the law suit might begin in Europe, through Portugal, due to its cooperation treaties with Brazil, to be judged afterwards by the Court of Luxembourg, the European forum responsible for such issues.

In February, the Wapishanas will meet in Boa Vista to discuss strategies for action, at the General Assembly of the Indigenous Council of Roraima (CIR). "We will alert the other peoples about the need to preserve their knowledge," says Chief Norberto. Meanwhile, Chief Andrew has revoked some ancient rules of hospitality. The entry of researchers is forbidden in Sand Creek.

Joao Fabio Caminoto contributed from London.

ENGLISH TRANSLATION: David Hathaway

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BIO-IPR docserver

TITLE: Mexican Bean Biopiracy: US-Mexico Legal Battle Erupts over Patented "Enola" Bean AUTHOR: Rural Advancement Foundation International (RAFI) PUBLICATION: Geno-Types DATE: 17 January 2000 URL:
http://www.rafi.org
NOTE: Please visit RAFI's website for the full and referenced version of this article, and to subscribe to their listserver.

MEXICAN BEAN BIOPIRACY: US-MEXICO LEGAL BATTLE ERUPTS OVER PATENTED "ENOLA" BEAN PLANT BREEDERS' WRONGS CONTINUES?

RAFI - Geno-Types - 17 January 2000

Summary: A US-based company, POD-NERS, L.L.C, is suing Mexican bean exporters, charging that the Mexican beans (Phaseolus vulgaris) they are selling in the US infringe POD-NERS' US patent on a yellow-colored bean variety. It's not surprising that the Mexican beans are strikingly similar to POD-NER's patented bean. That's because POD-NERS proprietary bean, "Enola" originates from the highly popular "Azufrado" or "Mayocoba" bean seeds the company's president purchased in Mexico in 1994. The Mexican yellow beans have been grown in Mexico for centuries, developed by generations of Mexican farmers and more recently by Mexican plant breeders. Last year RAFI released a report, Plant Breeders' Wrongs, which documents 147 suspected cases of institutional biopiracy. In RAFI's opinion, the Enola bean patent is a textbook case of biopiracy, and it confirms -- once again -- that the plant intellectual property system is predatory on the rights of indigenous peoples and farming communities.

Background

In 1994, Larry Proctor, the owner of a small seed company and president of POD-NERS, L.L.C., bought a bag of commercial bean seeds in Sonora, Mexico and took them back to the US. He picked out the yellow-colored beans, planted them and allowed them to self-pollinate. Proctor selected yellow seeds for several generations until he got what he describes as a "uniform and stable population" of yellow bean seeds. Proctor applied for a US patent on November 15, 1996, barely two years after he purchased the yellow beans in Mexico.

o On April 13, 1999 Larry Proctor won US patent no. 5,894,079 on the "Enola" bean variety. The patent claims exclusive monopoly on any Phaseolus vulgaris (dry bean) having a seed color of a particular shade of yellow. POD-NERS claims that it is illegal for anyone to buy, sell, offer for sale, make, use for any purpose including dry edible or propagation, or import yellow Phaseolus vulgaris of that description. (To be granted a patent, the inventor must meet three standard criteria. The invention must be new, useful and non-obvious. )

o On May 28, 1999 Larry Proctor won a US Plant Variety Protection Certificate (No. 9700027) on the Enola bean variety. The PVP certificate states that the Enola dry bean variety "has distinctly colored seed which is unlike any dry bean currently being produced in the United States?" (To receive plant variety protection in the US, a variety must be new, stable, uniform and distinct.)

In late 1999, armed with a US patent and a breeders' right certificate (double IP protection), Proctor brought legal suit against two companies that sell Mexican beans in the US, charging that they infringe his patent monopoly. Proctor has initiated legal suits against two companies that buy yellow beans from Mexican farmers and sell them in the US: Tutuli Produce (Nogales, Arizona, US) and Productos Verde Valle (Guadalajara, Jalisco, Mexico). Rebecca Gilliland, President of Tutuli Produce, explains, "In the beginning, I thought it was a joke. How could he [Proctor] invent something that Mexicans have been growing for centuries?" Tutuli Produce is a major buyer of two yellow bean varieties, "Peruano" and "Mayocoba" produced by an association of Mexican farmers, the Asociacion de Agricultores de Rio Fuerte.

POD-NERS is demanding royalties of six cents per pound on the yellow beans entering the US from Mexico. According to Gilliland, because of the patent infringement charges, US customs officials are now inspecting Mexican beans at the US-Mexico border, taking samples from every shipment, at additional cost to her company. And because of the lawsuit, Gilliland says her company is already losing customers -- which are important markets for Mexican farmers.

Mexico Defends its Bean Heritage

Beans are the principal source of vegetable protein consumed by Mexicans, and one of Mexico's basic food staples. Yellow "Azufrado" beans are especially popular in the Northwest region of Mexico where 98% of surveyed Mexicans eat them.

Outraged by the appropriation of Mexican germplasm and legal attempts to block Mexican bean exports to the US, the Mexican government announced in early January that it will challenge the US patent on the "Enola" bean variety. "We will do everything necessary, anything it takes, because the defense of our beans is a matter of national interest," declared Jose Antonio Mendoza Zazueta, under-secretary of Mexican rural development. The patent challenge will cost at least US$200,000 in legal fees.

Mexico's National Research Institute for Agriculture, Forestry and Livestock (INIFAP) recently conducted a DNA analysis of POD-NERS' patented bean. The results indicate that the Enola variety is genetically identical to Mexico's "Azufrado" bean.

Nothing New

Larry Proctor, the "inventor" of the Enola variety, readily admits that his Enola bean is of Mexican origin. On his application to the PVP office, Proctor wrote, "The yellow bean, 'Enola' variety is most likely a landrace from the azufrado-type varieties." In his patent application, Proctor explains that he bought a bag of commercial beans in Mexico, planted them in Colorado (US), and did several years of selection. But Proctor claims that the Enola variety he developed is unique because of its distinctive yellow color and also because it was not grown previously in the US.

Plant breeding experts disagree. Professor James Kelly, a bean breeder at Michigan State University and President of the Bean Improvement Cooperative, believes that the Enola patent is "inappropriate, unjust and is not based on the scientific evidence or facts."

Kelly writes: "This yellow color described in the patent is typical of the yellow beans that have been grown for centuries in Mexico. The yellow beans in Mexico are widely grown and known under the names of Mayocoba, Azufrado or Sulfur, Peruano, Canaria and Canario, names that are all suggestive of the yellow color."

There is ample documentation in genebank databases that bean varieties commonly known as Azufrado, Canario and Peruano are farmers' varieties collected in Mexico. RAFI's initial database search reveals that scores of Mexican bean varieties identified by those names are held by the International Center for Tropical Agriculture (Cali, Colombia), and virtually all of them are designated "in-trust" materials. Under the terms of the 1994 agreement between the Consultative Group on International Agricultural Research and the UN Food and Agriculture Organization, "in trust" germplasm is maintained in the public domain and is not allowed to be included in any intellectual property claim.

Professor James Kelly dismisses the implication that the patented yellow color bean was not known, grown or recognized in the US prior to 1994. Kelly provides documented evidence that yellow beans (of Mexican origin) similar to Enola were grown and consumed in the US as far back as the 1930s.

Kelly also questions the technical validity of the breeding and selection work described in the Enola patent:

"On a scientific level, I would challenge the procedure they used as not being unique since beans are highly self-pollinating and they (inventors) simply grew pure homozygous seed of yellow beans from a seed mixture which self pollinated to reproduce itself. Nothing unique was invented, and this is a routine procedure used by bean breeders to maintain purity of genetic stocks and varieties. The inventors state 'a segregating population of plants resulted.' This is incorrect. They simply observed different plant and seed types since they planted a mixture of different beans that exhibited morphological, phenological and seed color differences. This is not a segregating population which must result from a cross pollination. Simply growing and selfing a specific seed color type hardly implies novelty or invention."

"All he [Proctor] did," Kelly told RAFI, "was multiply something that already existed. It's nothing unique in any sense of the word. To patent a color is absolute heresy."

The Bottom Line: RAFI Commentary

The Enola bean patent is technically and morally unacceptable. It is tragic that Mexico is now forced to devote scarce financial resources to challenge a patent that should never have been granted. It's difficult to decide who is more at fault: Is it the patent owner who claims that Mexican beans are infringing his US monopoly patent on seeds of Mexican origin? Or is it the US patent examiners who determined that Proctor was eligible to win an exclusive monopoly patent?

It is tempting to dismiss the Enola bean patent as an "aberration", as nothing more than an absurdly ridiculous patent. Unfortunately, the patent demonstrates more than the fallibility of a single patent examiner. Last year RAFI released a report, "Plant Breeders' Wrongs" which documents 147 suspected cases of institutional biopiracy. Industry and Plant Breeders' Rights officials from Canberra to Geneva dismissed the charges, asserting that plant intellectual property abuses are remote and isolated cases.. The reality is that the Enola patent is only the most recent example of a long line of abuses -- of "systemic biopiracy." Mexican beans, South Asian basmati, Bolivian quinoa, Amazonian ayahuasca, Indian chickpeas -- all have been subject to intellectual property claims that are predatory on the knowledge and genetic resources of indigenous peoples and farming communities.

The Enola controversy starkly illustrates the danger of life patenting and the power of exclusive monopoly patents to block agricultural imports, to disrupt or destroy export markets for Third World farmers, and to legally appropriate staple food crops or sacred medicinal plants that represent the cultural heritage of millennia. Hopefully, the Enola patent will be easily challenged and promptly abandoned. But next time, it may not be so simple. The patent owner could be a corporate powerhouse with deeper pockets and a fleet of lawyers.

Mexico and other nations of the South should bear in mind that the Enola patent is the product of precisely the same intellectual property regime that the US government aggressively promotes as a model for the rest of the world, through bilateral and multilateral channels. At the World Trade Organization, the US consistently pushes for stronger IP protection for plant varieties under the Trade-Related Intellectual Property (TRIPs) agreement. It is a tragic irony if Mexico and other governments react to biopiracy by rushing to patent and PBR every plant variety in sight. In doing so, they will put in place the very same predatory IP regimes that undercut the rights of farmers to save seeds, promote genetic uniformity, and threaten food security.

Action Needed

o US Patent 5,894,079 should be legally challenged and revoked.

o US Patent 5,894,079 and US PVP # 9700027 may involve "in trust" germplasm. Under the terms of the 1994 agreement between the Consultative Group on International Agricultural Research and the UN Food and Agriculture Organization, "in trust" germplasm is maintained in the public domain and is not allowed to be included in any intellectual property claim. To insure the integrity of designated germplasm, FAO and CGIAR should take immediate steps to investigate, and, if necessary, to offer legal and financial support to defend the in-trust germplasm.

o The long-overdue review of WTO TRIPs Article 27.3(b) is ultimately the most important forum for halting predatory practices. Governments should rescind the current requirement under Article 27.3(b) to permit intellectual property protection for plants and microorganisms on the grounds that WIPO and UPOV regimes are predatory upon the knowledge of farming communities and indigenous peoples and upon the sovereignty of states over their living resources.

o Governments, civil society organizations and other stakeholders convening at the Global Forum on Agricultural Research in Dresden in May should urgently review the impact of plant intellectual property on plant breeding and innovation, farming communities and biological diversity.

For further information, please contact:

Hope Shand, Research Director RAFI 118 E. Main St., Rm. 211 Carrboro, NC 27510 USA Tel: (1-919) 960-5223 Fax: (1-919) 960-5224 Email: hope(at)rafi.org Web:
http://www.rafi.org