The Amazon rainforest medicinal herbs and Western attempts at exploitation of the indigenous traditional knowledge
By D.P. Agrawal

It is well known that many traditional healers and religious leaders from the indigenous tribes of the Amazon used to collect a plant Banisteriopsis caapi, and process it to produce a ceremonial drink – ayahausca, also called yage. They used ayahausca in religious and healing ceremonies. According to tradition, ayahausca was prepared and administered only under the guidance of traditional healers. A Plant Patent No. 5,751, issued to Loren Miller on 17 june 1986 by USPTO claimed rights over a supposed variety of B. caapi, which Miller dubbed 'De Vine' (Mashelkar 2001).

The challenge to this patent was made by the Center for International Environment Law (CIEL), on behalf of the Coordinating Body of Indigenous Organization of the Amazon Basin (COICA) and the Coalition for Amazonian Peoples and Their Environment (Amazon Coalition). COICA is a coordinating body of more than 400 tribes.

It was argued that to obtain a plant patent, an applicant must show that the plant is a new variety; that it is distinct from existing forms; and that it is now found in an uncultivated state (35 U.S.C. # 161). Such patents are authorized under a 1930 law designed to reward efforts of growers who develop new varieties of crops such as fruits trees or grapevines. Although the patent claimed to have identified a variety of the species with new and distinctive physical features, particularly the colour of the flower. But according to Prof. William A. Anderson of the University of Michigan, a leading expert on the plant family to which B. caapi belonged, the features described as 'prior art' were already there in the records of major herbaria. Further, this plant grew naturally throughout the Amazon basin. By law, plant patents cannot be awarded to plants 'found in an uncultivated state'.

Mashlekar informs that the USPTO rejected Miller's patent claim in an Office Action dated 3 November 1999. The rejection was made on the narrowest grounds possible, under the statutory bar of 35 U.S.C. #102(b). Section 102(b) prohibits, inter alia, the issuance of a patent when the invention was patented or described in a printed publication more than one year prior to the date of patent application. The rejection notice noted that the accessioned specimen sheets from the Field Museum in Chicago contain specimens of B. caapi whose major defining feature is flower colour indistinguishable from that of Da Vine. These sheets were known and available in the United States more than one year prior to the filling of Miller's patent application.

By permitting #102(b)'s statutory bar to be met by these specimen sheets, the USPTO confirmed in its rejection that such sheets qualify as 'printed publications' for the purpose of determining a plant's patentability. This way for the first time the USPTO had adopted this interpretation of prior art publications. However, the interpretation is a logical extension of earlier decisions that recognized as printed publications, single copies of doctoral dissertations catalogued in university libraries, and single copies of grant proposals indexed and publicly available on file with the National Science Foundation.

It is however sad to note that the case finally took a different turn. The inventor convinced the USPTO about the novelty of his claim to the new variety and the USPTO reversed its decision given on 3 November 1999 in the re-examination certificate given by it on 17 April 2001 with a statement 'No amendments have been made to the patent. As a result of re-examination, it has been determined that the patentability of claim 1 is confirmed'.

It is, however, heartening to note that the Indian cases of Turmeric and Basmati still continue to be the only successful battles on Traditional Knowledge with USPTO to date! (Mashelkar 2001).

Reference

Mashelkar, R.A., 2001. Intellectual property rights and the Third World. Current Science 81 (8): 961.