NGOs: Biopiracy Ongoing As Governments Slowly Negotiate International Instrument 21/10/2010 by Catherine Saez, Intellectual Property Watch Leave a Comment Share this:Click to share on Twitter (Opens in new window)Click to share on LinkedIn (Opens in new window)Click to share on Facebook (Opens in new window)Click to email this to a friend (Opens in new window)Click to print (Opens in new window)NAGOYA, JAPAN – Discussions on a draft protocol to prevent biopiracy were intense again on Wednesday, with night sessions going late as delegations try to find common language on a legally binding instrument. Around the discussions, undertaken mostly behind closed doors, side events convened by civil society are warning about numerous cases of biopiracy, and the urgent need for a meaningful protocol. Today, delegates at the high-level UN Convention on Biological Diversity meeting here trying to find agreement on an international protocol on access and benefit sharing worked on traditional knowledge and compliance issues. There have been lengthy discussions but some progress is being made and concessions are being offered by countries, according to several sources. The Informative Consultative Group is expected to deliver a finalised text by Friday (IPW, Biodiversity/Genetic Resources/Biotech, 19 October 2010). At the door of those negotiations, civil society is lobbying for a solid instrument to prevent biopiracy and ensure benefit sharing of any commercial benefit derived from the utilisation of genetic resources. Jorge Cabrera Medaglia, of the Costa Rica National Biodiversity Institute. at a side event organised by the Geneva-based International Centre For Trade and Sustainable Development, said that in Central America, only two countries had appropriate ABS legislation: Panama and Costa Rica. There are practical difficulties in the legislations of both countries, he said, mainly because of the lack of precise language about disclosure. There are also issues with the lack of expertise and varying levels of awareness on biodiversity issues, he said. Intellectual property offices sometimes do not have the expertise and lack the analytical capacity to detect the cases where a certificate of origin is necessary, he said. There are practical constraints getting in the way of the implementation of ABS rules, he added. NGOs Watchful of Biopiracy Cases Kabir Bavikatte, co-director of Natural Justice, an NGO working with communities to develop their legal capacity to reach social and environment justice in line with the three main objectives of the Convention on Biological Diversity. He presented the case of the patent applications of Nestlé on Rooibos during a side event organised by the Berne Declaration, the African Center for Biosafety, Natural Justice, Third World Network and the Church Development Service. This particular plant is endemic in South Africa, widely consumed as a particular type of tea, and used by indigenous people for medical conditions such as itchy skin and inflammation. The patent applications also concerned honey bush, another native plant of South Africa. In 2009, Nestlé applied for five patents on rooibos and honey bush. The company had not submitted required prior informed consent to the South African government and the government was unaware of the patent requests which were red flagged by the Berne Declaration. South Africa has a law on bioprospecting which requires prior informed consent for commercial research, however, under the South African law, the country does not hold genetic resources, which can be the property of communities, individuals or companies, leading to some problems when implementing the law, Bavikatte said. Nestlé imported its rooibos and honey bush from South Africa through a South African intermediary. That created a situation where the one who has received the product had never engaged in bioprospecting on the ground but relied on commodity trade. Nestec Switzerland filed for the patents. They are a fully owned subsidiary of Nestlé, said Bavikatte. Nestlé argued against the alleged biopiracy, saying the company had not made commercial use of the patents and had no plans to do so in the near future. Nestlé is currently working with the South African government to find a solution and take things forward, he said. On what the South African government wishes to obtain from the negotiations, Bakatte said he did not know but said that South Africa has a very large research platform and in many ways wanted the “slowly slowly kind of approach,” and that it does not want “to scare away any companies.” National-Regional Dichotomy Can Facilitate Biopiracy Maryam Mayet, director of the African Centre for Biosafety (ACB), presented another case of documented biopiracy in what she called the “continuing saga of pelagornium biopiracy case.” At issue is the commercialisation of the root from two species endemic in South Africa. The case showed every evidence of biopiracy, she said, such as clearly established traditional knowledge, and a clearly defined community. The first patent to be challenged was on a method for producing extracts of Pelargonium sidoides and Pelargonium reniforme to make Schwab cough and cold syrup, according to an ACB briefing of the case [pdf]. The use of the plant in Germany dates back to the 1950s when a cough syrup was made out of the plant but it was not a big commercial enterprise, Mayet said. The company manufacturing the syrup was bought by Schwab, a German firm, which saw a business opportunity and went “big scale”. There was commercial pressure on the resource and the relationship with the local community and the plant changed, Mayet said. Schwab held five patents, one of which was challenged by the ACB on behalf of a rural community in Alice, South Africa, in collaboration with the Berne Declaration. The European Patent Office revoked the challenged patent for lack of inventive step in January 2010 and in April 2010, Schwab announced that it would not pursue the other pelargonium-related patents. However, in order to keep its supply flowing, the German company found “a local chief” with whom they agreed on monetary benefits if the issue of traditional knowledge was “off the table.” This is a problem with provincial management of resource. The South African government, despite its current legislation on bioprospecting “cannot very well be on the ground on several provinces,” she said, adding that the implementation of access and benefit sharing is sometimes difficult in circumstances of regional administration of resources. 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