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1992 U.N. Convention on Biological Diversity, Patent rights

Bio-piracy or life-saving medical research?

By Joseph Klein
Monday, april 3, 2006

Developing countries are once again using their clout at the United Nations to push for a massive wealth transfer program. This time it involves something called the 1992 U.N. Convention on Biological Diversity ("Biodiversity Convention"), one of the dubious legacies of Maurice Strong's 1992 Rio Earth Summit.

The Biodiversity Convention, which the United States has not ratified, requires fair and equitable benefit sharing of biological resources. article 8(j) states that "Parties will, subject to national legislation, respect, preserve and maintain knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biodiversity; promote their wider application with the approval and involvement of knowledge-holders; and encourage the equitable sharing of benefits arising from the utilization of such knowledge, innovations and practices."

Delegates from developing countries, who attended a United Nations conference on biodiversity in Brazil late last month, want to use the Biodiversity Convention to upend standard intellectual property law, which permits patenting or other intellectual property protection for products derived from genetic information on plant or animal species. Instead, they have demanded new international laws that would force any company seeking to obtain patent rights on the use of genetic information in creating breakthrough medical advancements to pay a stiff toll to the developing countries whenever such information happens to be derived from access to their local plant and animal species. In effect, they want to create another OPEC among the countries having the richest biodiversity (Brazil alone has 22 percent of the world's plant species) and hold world health hostage to their demands. It is no coincidence that Brazil and the other Latin american countries, who are in the vanguard of this fight over controlling access to genetic materials, are cozying up to the arab states, who know all about using their leverage over a vital natural resource to their economic advantage. Indeed, according to Brazzil Magazine, the Brazilian government refused the United States' request to attend a Latin american-arab summit in Brazil last year, "to make sure that the South american and arab countries could discuss their issues freely, without american intervention".

The developing countries rationalize their assault on our intellectual property system by arguing that it steals from their indigenous peoples' "traditional knowledge" of the medicinal uses of the plants and animals in their locales. Indeed, they have come up with the term "biopiracy" and popularized it to the extent that the Oxford English Dictionary now includes the term as part of today's vernacular, defining it as "bioprospecting, regarded as a form of exploitation of developing countries." There is even a group that calls itself The Coalition against Biopiracy, which bestowed its Captain Hook award for Biopiracy on the United States Government in 2004 for "promoting the commercial exploitation of biodiversity in its National Parks and for championing the patenting of all biological products and processes (related to plants, animals, microorganisms, and human DNa). Special recognition goes to the US Trade Representative for tirelessly promoting and globalizing intellectual property regimes through the WTO". The U.S. Government won the honors again in 2006. Radical environmentalists have also accused Canada, australia and New Zealand of serving as "puppets" for the United States and for the biotech industry.

These Luddites have no legitimate reason to complain, since patent law already recognizes that an invention based on ‘prior art' does not qualify for a patent. Patents only protect novel inventions. They draw a false dichotomy, asserting that intellectual property rights are incompatible with the protection of "traditional knowledge". The problem is that the proponents for change to intellectual property law do not want to tell us exactly what "traditional knowledge" they are referring to and exactly how it bears on the scientific discoveries that are being patented. For example, as reported by the Inter Press News Service agency ("IPS"), several U.S. companies, universities and researchers, including the Seattle-based ZymoGenetics Inc., have filed for patents for a toxin found in the skin of the Monkey frog. Indigenous communities in the amazon jungle are very aware of this toxin and have used it in their hunting rituals. However, drug companies have found a medical application for the secretion to combat a condition in which flow of oxygen-rich blood to a part of the body is restricted, in some cases leading to heart failure. Yes, the locals had "traditional knowledge" of the special properties of the Monkey frog toxin. However, to them its primary significance was ritual, and certainly not as a possible cure for heart disease. That is where the state of knowledge would have stayed but for the research of the drug companies. Yet, on the basis of such "traditional knowledge", the Luddites want developing countries to be ensured of a windfall from the innovative work of trained researchers and product developers who actually spent the time and money to unlock the genetic mysteries of the Monkey frog's DNa encoding to produce new medicine on a commercial scale capable of saving peoples' lives around the world.

The piracy, as usual, is coming from those who want to steal the reward from those who earned it. as if that were not enough, some are pushing for a new international fund for biodiversity to be financed through global taxes such as the Tobin Tax on international currency transactions and surcharges on air fares. This would be on top of the funding already provided through the Global Environment Facility, to which the United States presently contributes 20%. The Global Environment Facility is jointly run by the World Bank, the U.N. Environment Programme and the U.N. Development Programme.

The same folks who blame the United States for not doing enough to help alleviate disease in the developing world are the first to complain against the most efficient means for ensuring well-funded research to find affordable cures. Without effective intellectual property protection, pharmaceutical companies will not have the incentive to risk many millions of dollars in research and development. For centuries the most biologically diverse regions on earth — particularly the great tropical rain forests — have been largely ignored, their wealth of unique genetic knowledge completely untapped. Local populations have plundered the forests for timber or cleared the land for farming, as much as they have inhabited it. They have at times used mysterious folklore in treating maladies with medicinal plants, but had no idea how to extend such treatments to wider populations. Their ‘traditional knowledge" may help a few sick souls living close by in these disease-ridden lands, who are lucky enough to be told about it in time. However, many others will die without the advanced medicines that transcend local lore. The true reward back to the peoples of the bio-diverse regions of the developing world should be the availability from the drug companies of low cost medicines that result from their research. The United Nations should provide leadership in this direction, rather than provide more forums to promote large wealth transfer payments that will most likely end up in the pockets of corrupt government officials.


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