Annie Harris is a JD candidate at Osgoode Hall Law School and is taking the Patent Law course.
Bioprospecting refers to the process of looking for useful plant and animal substances, usually for medicinal purposes. The areas of the world with the greatest biodiversity are also home to the largest populations of indigenous people.
In the quest for new medicines, pharmaceuticals and food growing processes, individuals and mainly companies from around the world seek to “discover” new biological substances, and claim Intellectual Property (IP) rights over them. The Indigenous people that have traditionally used many of the biological substances that are now sought to be patented are at risk of being deprived of commercial gains from patents as well as being excluded from using traditional substances.
There are instruments at the international and national levels that try to protect Indigenous and local farmers and developers from losing control of traditional and local biological substances and processes.
At the international level, the International Treaty on Plant Genetic Resources for Food and Agriculture (PGRA) was adopted by the Conference of the Food and Agriculture Organization of the United Nations in November 2001 (http://www.planttreaty.org). It was signed by 77 countries, including Canada and the US. The Treaty is intended to grant traditional farmers the same protections as modern farmers. The Treaty is concerned with conservation, sustainability, and equitable distribution of benefits. It is intended to be a means for Indigenous communities and local farmers to protect their rights to use local biological substances. This along with the Convention on Biological Diversity, provides instruments for communities nationally and internationally.
However, there are practical realities to the application of these instruments. In order to access the rights of the Treaty member countries must have resources and the political will to enforce it. This speaks to the power disparity between poor farmers and rich companies; rich companies do not have to rely on government resources to take action. The Treaty is proactive, and not responsive, and under it there is no recourse for poor farmers.
Also, the Treaty refers primarily to food and agriculture. The Treaty is noble in focussing on food rights, with the rationale of fighting poverty and starvation, but absent from it is any mention of medicine and cosmetics; commercial areas which could benefit poor communities economically in the long run. Although there is minor mention of commercial priority for local farmers (PGRA, Part IV 13.2), the focus is on allowing poor farmers to subsistence farms and that is why countries become signatories, because the treaty is not commercially threatening.
Although there are some protections for Indigenous patents, some researchers have found over 600 patents exist where some kind of Indigenous knowledge is incorporated into the product (http://www.onecountry.org/e161/e16104as_Australia_Bioprospecting_story.htm).
These patents should not exist under the principles of patent law. When knowledge is in the public domain, such as many traditional uses of biological materials, they do not meet the novelty test of patents. Patents are only available for new, industrially applicable products. Yet some companies, and many Universities hold patents on biological substances, particularly in developing countries.
There are also national protections for Intellectual Property rights over biological substances. The Plant Breeder’s Rights Act, protects “sufficiently distinguishable” plant inventions and the IP rights of their creators. In Canada, it was noted in Harvard College that plants are not patentable however they deserve some intellectual property protection (Harvard College v. Canada,, para 192; Hughes & Woodley, Patents, s.300, pp. 6011). It is possible to patent genes or cells that are incorporated into a higher life form like a plant. Thus it is possible to “invent” such a gene as the standard of invention is lower when it comes to patenting plant inventions (Hughes & Woodley, Patents, s.309, pp. 6019). The meaning of originate/discover does not have the high threshold of “invent”. This way bioprospectors can manipulate single cells to “discover” new biological substances, and acquire property rights over them.
The Act focuses on individual rights, not community or traditional biological property, and it ensures individuals can exploit the use of plant inventions. This favours large companies and will not help local farmers of Indigenous people retain rights over biological substances and plant inventions.
Under the Plant Breeder’s Rights Act there is an opportunity for opposition, where hearings with submissions are available to challenge applications (Hughes & Woodley, Patents, s.315, pp. 6035), but who has power to use the available recourse? Mounting a challenge would take time and money.
Outside of these instruments, the government does recognize the issue and seems to address the importance of keeping intellectual property rights in their native areas, as well as linking employment for Aboriginal people to IP jobs (http://cfs.nrcan.gc.ca/news/474). However, Indigenous people are still wary of “biocolonialism”, seeing bioprospecting as a new wave of colonial dominance (http://www.nature.com/nature/journal/v419/n6909/full/419768a.html).
The point is that our patent system is severely limited in how it can protect Indigenous knowledge. The nature of the patent system is developed from Western notions of property where the focus is on ownership and the ability to exclude. Treaties such as the PGRA rely seemingly on the proactive nature of member countries, and does not have enforcement mechanisms. Nationally the Plant Breeder’s Act protects individual ownership and has little by the way of recognition of Indigenous or community protections.
It goes back to the point that Intellectual Property regimes are based on Western notions of ownership. These patent regimes suit machines not biology (Mgbeoji, http://www.onecountry.org/e161/e16104as_Australia_Bioprospecting_story.htm). This is particularly evidenced by the fact that even the instruments we have developed are not adequate to handle the intricacies of biological property, especially considering the impact its management can have on Indigenous communities and their already tenuous hold on knowledge and resources.