Policing the 'Gene Rush' a Prickly Task
Business Day (Johannesburg), February 25, 2005

Sanchia Temkin

Developing world's plant riches open to genetic-resource theft by bioprospectors

SCIENTISTS are constantly searching for and developing new medical and health products based on plants. And they are discovering that indigenous communities around the globe have passed down plant cures for thousands of years.

But attempts by pharmaceutical companies in the developing world to patent and commercialise these medicinal plants are posing ethical and moral dilemmas. Many developing nations are unhappy about biotechnology firms in industrialised countries "stealing" plants that contain substances of pharmaceutical value. "The process, which is called bioprospecting, is not necessarily the problem," says Llewellyn Parker, a partner at commercial law firm Bowman Gilfillan.

But the process can pose a problem when the firms prospect without permission or expropriate the results of their investigations without payment or acknowledgment, Parker says. "In a split second the collective efforts and community heritage of indigenous people can become the exclusive intellectual property of those who took it," he says. This can amount to the exploitation of a community. There is a widespread perception among developing nations that their traditional knowledge and genetic resources are being misappropriated on a large scale by biotechnology firms from first- world countries, Parker says.

These resources are sometimes used to develop pharmaceutical products, which are patented. For example, scientists in SA have discovered that when rodents were given the hoodia plant, they practically stopped eating.

The plant, a spiny cactus, grows mainly in the Kalahari desert and in the arid areas of SA, Botswana, and Namibia -- and the Bushmen have known about hoodia's appetite-suppressing properties for many generations. The Council for Scientific and Industrial Research sold a licence to develop the plant to a British pharmaceutical company, which in turn sold the development and marketing rights to Pfizer.

The pharmaceutical giant is developing an anti-obesity drug from hoodia, with plans to release it into the $3bn food supplement market in 2008.

But the Bushmen complained that their indigenous knowledge was not being acknowledged in the rush to develop a product from the hoodia, and last year their lawyers struck a deal on their behalf. The research council will pay the Bushmen 8% of all milestone payments it receives from its British-based licensee Phytopharm, which could amount to between R8m and R12m over the next four years. Payments will be made into a trust, with the first one backdated to March 2002. Meanwhile, Rooibos Ltd, a processing and marketing company controlled by Western Cape tea producers, is locked in a legal battle with a US company.

Burke International says it has registered the word "rooibos" as a trademark in the US, but the South Africans say it is a generic name for a herbal plant unique to SA, and it is not possible to trademark it.

Bastiaan Koster, a partner at Bowman Gilfillan, says during the late 1980s and early 1990s developing countries were largely silent observers when global treaties such as the Trade-Related Aspects of Intellectual Property Rights agreement were negotiated. But this has changed. Many countries are insisting that the concepts of genetic resources and traditional knowledge be treated as equivalent to conventional intellectual property mechanisms.

In 2001 the World Intellectual Property Organisation formed an intergovernmental committee to develop protective mechanisms. To protect traditional knowledge, it is developing a database that can be used when novelty searches are carried out for new patent applications.

But some indigenous communities in South America are reluctant to have their traditional knowledge recorded on a database as they believe it should be passed on only by word of mouth. The protection of genetic resources has more legal muscle at present than the protection of traditional knowledge, says Jaco Grundlingh, a partner at Hofmeyr, Herbstein & Gihwala.

SA is a signatory to the Convention on Biodiversity, which has as one of its objectives the fair and equitable sharing of benefits arising from genetic resources. SA has also passed a biodiversity law which regulates bioprospecting involving indigenous biological resources.