Access And Benefit Sharing Mentioned In US Patent For Natural Dye, Might Be A First

A recent patent granted by the United States Patent and Trademark Office to a Colombian company stated where the genetic resource of the invention was taken from and described the access and benefit-sharing agreement made with indigenous communities. This might be the first time that such a statement appears in a US patent, according to a source.

Ecoflora Cares, a Colombian company developing natural colour technologies for the food and personal care industries, was granted US patent 9,376,569 B2 for an invention based on the extraction and use of a blue dye with edible properties from the fruit of the Genipa Americana tree, growing in Colombia.

Ecoflora Cares is a member of the Union for Ethical BioTrade (UEBT), a non-profit association promoting sourcing with respect of ingredients that come from biodiversity. The UEBT asks its member to comply with its principles on patents and biodiversity [pdf], which require that patent applications disclose the country of origin of the biological resources and make the link between patents and agreements on fair and equitable benefit sharing.

In line with the UEBT principles, Ecoflora Cares and its attorney Jorge Goldstein, a patent attorney with Sterne, Kessler, Goldstein & Fox PLLC in Washington, DC, requested that the patent include information on compliance with ABS rules and principles.

According to UEBT, one of the flagship colours of Ecoflora Cares is a natural blue colorant for food applications, developed and extracted from the fruit of genipa americana, in the Colombian tropical rainforests. It provides a natural alternative to “indigotine”, an artificial colorant used in food (and also in blue jeans).

Ecoflora Cares has secured various permits and agreements in Colombia for the utilisation of genipa americana, based on the legal framework established by Andean Decision 391 and implementing rules, UEBT told Intellectual Property Watch.

In 2011, Ecoflora Cares received a permit for non-commercial research and development on natural colorants from the fruit of genipa americana, and in 2013, the company concluded a series of agreements on sharing of monetary and non-monetary benefits with local communities, they added.

In 2014, the Ministry of Environment of Colombia subscribed a contract with Ecoflora Cares, authorising the commercial use of genipa americana as the basis for a natural a colorant, according to UEBT.

Neither Colombia nor the US are parties to the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization (ABS) to the Convention on Biological Diversity (CBD).

The US patent includes a Statement of Access and Benefit Sharing (ABS) as follows:

Statement of Access and Benefit Sharing (ABS)

“This invention is based on the extraction and use of a blue dye with edible properties from the fruit of the Genipa americana tree. This tree grows in a variety of rainforests of Colombia. In compliance with the principles of ABS of the Convention of Biological Diversity and its implementing Nagoya Protocol, access to the genetic resources was obtained through agreements with ethnic communities and the authorities charged by Colombian legislation with administering their collective territories. The assignee has also entered into agreements with several community entrepreneurial initiatives that coordinate local production and supply dynamics with commercial partners. Through a shareholding agreement, these community-owned suppliers share in the financial benefits of commercialization of the genetic resources. Additional benefit sharing is provided through Fundacion Espave, a nonprofit organization that is a member of the Union for Ethical BioTrade and that trains local producers on sustainable sourcing in the Pacific rainforest.”

According to Maria Julia Oliva, UEBT senior coordinator for policy and technical support, “this is a significant initiative in ensuring that intellectual property rights support and advance ABS principles and requirements.”

“Developing countries, as well as some developed countries, have for years attempted to ensure that the intellectual system support and do not undermine ABS principles. For example, there is broad support for initiatives – still pending – to change the TRIPS Agreement [World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights]to include disclosure of origin requirements, as well as proof of ABS compliance, in patent applications,” she told Intellectual Property Watch.

In the negotiations leading to the Nagoya Protocol, proposals were made to make patent offices ones of the checkpoints for ABS compliance, she said, adding that this was ultimately not included in the agreement.

“Many developing countries, including Brazil, India and China, as well as developed countries such as Norway and Switzerland do require that patent applications linked to genetic resources identify the country of origin of these resources, in order to ensure ABS compliance,” she said.

 

Image Credits: Flickr – Alex Popovkin