Indigenous
Peoples, Beware of Biopirates!
By Dr.
MICHAEL A. BENGWAYAN
Beware!
There are pirates on the loose. Not on the seas but on land.
They are not
after gold, war booty or kegs of rum. They are after life.
These
pirates are swashbuckling silently but recklessly in Asia with incalculable
stakes for humankind. One where a handful of genomic companies and their
pharmaceutical partners are rushing to privatize plants, animals and human
genes and their products.
The
commodity they seek to exploit is not gold but biological information. The raw
material they need is human DNA: the blueprint of human life, plant, and animal
genes. They are the gene hunters and have invaded the Philippine shores.
Because of
massive profits, more and more big corporations are being engaged in
bioprospecting and biopiracy using knowledge and biological resources of Third
World communities.
Bioprospecting
oe biopiracy is the exploration, extraction and screening of biological
diversity and indigenous knowledge for commercial, genetic and biochemical
purposes. It is done by multinational firms and governments of developed
countries , with covert cooperation from scientists within victim nations. They
patent and map chromosomes of genetic resources without informing, consulting
and acknowledging and duly compensating the sources.
Today, as
dusk hovers over Philippine forests, a dawn has just began on the country’s
biodiversity. The nation’s non-timber forest products, resources, minerals,
agricultural and medicinal plants and indigenous knowledge and the indigenous
people themselves, are being looted by monopoly companies that make millions of
dollars patenting and selling plant, animal and human germplasm.
The most
widely known case of biopiracy in the country is the theft of a soil
microorganism, isolated from a soil in a cemetery in Iloilo by a Filipino
scientist Abelardo Aguilar. Aguilar, who hailed from Iloilo made the discovery
when working with Eli Lilly Co., one of biggest pharmaceutical firms in the
United States. He named the soil isolate Ilosone in honor of Iloilo. Eli Lilly
made use of Iloson to produce the world-known anti-biotic erythromycin and
promised Aguilar a hefty share as well as royalties from the earnings. Aguilar
never received any cent from his former company even with the Philippine
government’s intervention. Today, erythromycin earns for Eli Lilly, which now
owns the patent for the soil isolate, some 120 millions dollars yearly.
Lately, a
stunning biopiracy which is shrouded with obscurity, perhaps because of the
involvement of government scientists, is the discovery of a pain-killing
Philippine snail and its having patented by another foreign company. Considered
as the most powerful pain-killer ever discovered, 1,000 times stronger than
morphine, a drug called SNX 111 is a product of peptides from the Philippine
sea snail (Conus magus). It was pirated with the help of researchers from a
government state university for the US-based pharmaceutical Neurex Inc. and
University of Utah. To date, it is reported that sales have reached 80 million
dollars annually with nary a cent for the Philippines.
SNX-111 is
worth more outside the United States as it is highly in demand in hospitals,
drugstores and battlefields that dot so many spots in the world today. Neurex
has likewise patented the use of the snail toxins to treat victims of stroke
under US patent numbers 5,189,020, 5,559,095 and 5,587,454.
Warner
Lambert, perhaps the largest American international pharmaceutical company, has
now entered into a marketing deal with Neurex to market the pain-killer.
Another medical company, the US-owned Medtronic which specializes in medicinal
plants, has signed a contract with Neurex to sell the SNX111 pain killer.
Neurex itself is going into pesticide formulation using the Philippine sea
snail.
The
controversial twist in the discovery is that Filipino scientists collaborated
with their University of Utah counterparts to form and finance a private
company called Gene Seas Asia to capitalize in the commercial value of the seas
snail.
As a result,
it is obvious that Gene Seas Asia and its connections have siphoned and circumvented public funds to
promote private research for private individuals, and eventually, private
income. Ironically, Filipinos who will avail of the pain-killer at a high cost,
will be buying something they have always owned.
Absurd as it
may be , Filipinos, especially Ilocanos who are fond of “pinakbet”, they might
be buying their ampalaya or bitter melon (Momordica charantia) in the future
from American seed companies. That is because ampalaya is now owned by the
United States government after patenting it with US patent numbers 5,484 , 889
for the US National Institute of Health; JP6501089 for the US Army and ; EP
552257 for the New York University .
And that is
not all,. A decoction from ampalaya, “talong (Solanum melongena) and “lomboy”
or rose apple tree (Suzgium cumini) has been discovered to remedy diabetes and
is now owned by a US firm. No thanks to the government’s turtle-paced medical
science and technology program. Both vegetables and fruit are known to have
diabetic remedies but the US pharmaceutical company Cromak Research Inc., New
Jersey beat the Philippine government to the draw. The diabetic remedy was
granted US patent number 5,900,240, preventing the Philippines from making any
similar drug decoction from crops its originally owned.
In the late
1980s, the Philippine yew tree (Taxus sumatrana) found only in Mount Pulag,
Benguet was patented by scientists from a US university. The tree contains
taxol, a cancer-curing derivative. The biopirates were able to gain permit from
the Department of Environment and Natural Resources (DENR) Cordillera region
office to collect tree samples in Mount Pulag.
Humanity In
a Bottle
Today,
humanity is in a bottle. Human tissues are being owned by companies through
human tissue piracy and tissue culture. Tissue culture is the reproduction of a
microorganism, plant and animal cells in the laboratory. The culture of human
cells is crucial for the biotechnology industry. When kept under proper
conditions, “immortalized” human cells can produce in perpetuity and provide an
infinite quantity of cells that contain the unique DNA of the original tissue
donor or “tricked donor” as in the case of indigenous people who gave away a
part of their lives without their knowing.
Through
bio-informatics, the business of the genomic companies, where proprietary,
high-tech computer methods for collecting, editing, analyzing and storing DNA
are used , genes are sequenced to create a set of instructions to produce bits
of DNA from a given tissue sample from a donor.
Such
technology allows scientists to grow replacements for human organs or pieces of
organs. But it also allows the monopolization of human tissue by the powerful
biotechnology and pharmaceutical companies who have the technology and
equipment to control the ownership, use and sale of important human tissues.
Every
October, dubbed by the United Nations as Month of Indigenous Peoples in the
World, much of the exploitation against natives peoples are remembered—from the
crops and plants they nurtured for food and medicine—to human tissues. There is
a tissue piracy in the country as widespread as among indigenous peoples of
Micronesia, Papua New Guinea, Pacific and South Atlantic countries and those in
the east China sea.
In 2005, two bared
that some Ifugao tribespeople were lured into sharing their blood to foreign
scientists who posed as medical researchers. Nothing was heard from the
scientists after they collected blood and hair samples from the ethnic people.
Followingly,
the Baguio based United Nations (UN) accredited Indigenous Peoples
International Center for Policy Research and Education or Tebtebba Foundation,
reported that Aeta people displaced by the Mount Pinatubo eruption in Zambales
were tricked into giving blood samples to a foreign medical team who presented
themselves as aid workers.
All these
brings to mind the spectre of the initial success of the US project US$3
billion Human Genome Organization (HUGO) where human genetic variation has been
mapped, human tissues—including cells and their components—are becoming
critical areas for investigation for treatment of diseases but at the same
time, pose intense ethical concerns.
Some plants
and several animals have been “remade’ by science to the outrage of people and
communities who nurtured these. But tinkering with humanity has created a
worldwide uproar.
The
pattern is similar as in other countries. In September, 1994, Sequana
Therapeutics, a genomic company based in California announced that its has
extracted 300 samples from 300 inhabitants in an isolated island in Tristan de
Cunha in South Atlantic. The information from the gathered DNA has led the
company to be able to locate, identify and patent the genes or genes that
predispose people to asthma.
The company
obtained the DNA samples through its collaboration with the Samuel Lunenfield
Research Institute of Mount Sinai Hospital in Toronto, one Canada’s premier
biomedical research facilities. As in the Philippines, the researchers
collected blood, hair, tissue and even urine samples. The asthma research was
supported by AstraZeneca, the combined British and Swedish medical and food
giant which has patents of more than 300 plant and animal life forms.
In 1996,
Hagahai tribespeoples in Papua New Guinea were tricked by an American
anthropologist to give blood, tissue and hair samples in exchange of soap,
candies and chocolates. Unknown to the Hagahais, their tissues were used to
create an anti-leukemia drug; the tribe’s blood contained HTLV-1 which is
resistant to the illness. The Hagahais, through interceding NGOs sued to the
World Court and have been compensated recently for the theft of their tissues
but the patent remains with Jenkins and her company.
One thing is
certain. There is a widespread attempt to commit genetic piracy among
indigenous peoples. In the process, it results to violation of the fundamental
human rights of the people.
Incyte
Pharmaceuticals, for example, a genomic company based in California, describes
itself as both a biotech company and a software company, with the ability to
collect vast volumes of biological information. Access to their private genome
database is sold to giant pharmaceutical companies such as Upjohn and Pfizer.
Incyte calls itself a “one-stop shopping for genes.”
The
reputable Bio/Technology magazine claims that Incyte has already identified
35,000 unique human genes—roughly one third of the human genome, and that
Incyte has the capacity to process 3,000 genes per day. This means that the
company can start duplicating certain human characteristics and in fact has
applied for the patenting of 40,000 DNA templates.
Gene hunters
analyze inheritance patterns of DNA markers from individuals who are affected
by a particular disease. The intention is to find cure for human disorders.
Kevin
Kinsella, Chief Executive Officer of the Sequan Therapeutics defended their
biopiracy acts by explaining recently to the San Diego Union Tribune “Of all
the tools in the armamentarium of modern gene discovery, none is more
potentially more powerful than that of having the disease gene in hand…We can
now find the genes for the common complex disorders that affect majority of
people in Western countries.”
But the
issue is more complex and controversial than a simple claim to “heal the
humanity”. Vicky Tauli-Corpuz of Tebtebba Foundation and chair of the UN
Volunteer Fund for Indigenous Peoples says “the patenting of life forms is
nothing but an extension of the Western concept of private property and of
monopoly capitalism “. “Commodifying life forms”, she says, “ is not only
sacrilegious and immoral. It also alienates indigenous peoples’ communal
worldviews on wildlife resources and life processes.. We the indigenous people
cannot agree to commodifying and privatizing or appropriating for a single
individual or corporation what we have communally shared for generations”.
Indeed, no
matter how socially desirable the goals of genomic companies may seem, acts of
genetic piracy and violation of fundamental human rights are being committed.
It is also a grand deception of the people who are willing under “informed
consent” to make a contribution to science that may someday improve human
condition because they are not informed of the products derived from their DNA.
Also, they are deprived of the information that one day, they will lose control
of their genetic material once it is removed from their bodies.
Now
indigenous peoples say they have enough and are saying “STOP” to the
commercialization of their plants, resources, knowledge and of their bodies.
There is growing worldwide opposition to the granting of patents on biological
materials such as genes, plants, animals and humans. Farmers and indigenous
peoples are outraged that plants that they developed are being 'hijacked' by
companies. Groups as diverse as religious leaders, parliamentarians and
environment NGOs are intensifying their campaign against corporate patenting of
living things.
There is
growing public outrage that these companies are being granted patents for
products and technologies that make use of the genetic materials, plants and
other biological resources that have long been identified, developed and used
by farmers and indigenous peoples, mainly in countries of the South.
Whilst the
corporations stand to make huge revenues from this process, the local
communities are unrewarded and in fact face the threat in future of having to
buy the products of these companies at high prices.
The
transnational corporations are racing one another to manufacture pharmaceutical
and agricultural products, the main ingredients of which are the genetic
materials of the medicinal plants and food crops of these local communities.
The firms are also collecting other living things, ranging from soil
microorganisms to animals and the genes of indigenous people, which they use
for research and making new products.
These
companies are rushing to apply to patent the new products containing the
collected genetic materials, so as to prevent competitors from using them. They
can then reap larger profits from being able to hike up prices for the
products, or by charging royalties to other firms wishing to use the technology.
There is
much at stake in this great race of companies to patent ahead of their rivals,
for the coming century is already being termed 'the age of biology', when
products derived from biological materials are expected to increasingly replace
those made from metals and chemicals.
The genes of
living organisms are the basic 'raw materials' of the new biotechnologies. The
'Gene Rush' has thus become a new version of the old 'Gold Rush', in the
scramble for future profits.
The
knowledge and use of 'biodiversity' resides with farmers and indigenous people,
which have shared their knowledge and plants freely. Yet through patent
applications, the companies are now claiming the exclusive right to produce and
sell many 'modified' plants and animals, which have been manipulated to contain
selected foreign genes.
Third World
communities are concerned that in future they will have to pay high price for
these materials, which in the first place they (more than any other party) had after
all developed.
The
knowledge, innovation and efforts of these communities are not acknowledged
(and indeed are discarded) when the legal 'intellectual property rights'
systems grant patents on genetic and biological materials and on living organisms
to corporations. This injustice is being fought at different levels by farmers,
indigenous people and public interest groups. The following are some of the
actions by various groups around the world.
Some groups
have recently filed legal petitions or test cases to challenge patents already
granted.
* In
Washington in September 1995, more than 200 organisations from 35 countries
filed a petition at the US Patent and Trademark Office calling for the
revocation of a patent given to W R Grace company to use a pesticide extract
from the neem tree. They argue that the company has wrongfully usurped an
age-old biological process used by millions of farmers in India and other
countries for generations. The legal challenge is led by the US group
Foundation on Economic Trends led by Jeremy Rifkin, with other key petitioners
being the Research Foundation for Science, Technology and Natural Resources
Policy (RFSTNRP) and the Karnataka Farmers' Union (both from India), the
International Federation of Organic Agriculture Movements (IFOAM), and the
Third World Network.
* In
Brussels another legal petition was filed in June 1995 at the European Patent
Office against a patent it had granted to W R Grace for a method that extracts
the neem oil for use in controlling fungi on plants. The three opponents,
European Member of Parliament Magda Alvoet, Indian scientists Vandana Shiva of
the RFSTNRP, and IFOAM President Herve la Prairie, argue that the patent was
wrongly given as the claims for the technique lacked novelty, inventiveness and
clarity. The petition argues that the invention is now new as the patented
method for extracting neem oil is a standard method used for many decades,
whilst the anti-fungi effects of neem oil have been known in India for
centuries and thus cannot be considered a 'discovery' as claimed by the
company.
* In March
1995, the Swiss Supreme Court, in a landmark decision, ruled that the manzana
variety of the camomile plant may not be patented. It revoked the patent that
the Swiss patent office had granted in 1988 to the German pharmaceutical
company Degussa/Asta Medica on its manzana variety. The case had been brought
to court by a Swiss farmer Peter Lendi, president of the Bio-Herb Growers'
Association.
* In
February 1995, the European Patent Office withdrew key parts of a patent
granted to a Belgian company (Plant Genetic Systems) and a US company (Biogen
Inc.) for genetically engineered herbicide resistant plants. The patent was for
plant cells made resistant to glutamine synthetase inhibitors by genetic
engineering, and originally covered not only the gene which had been moved from
a bacteria to various plants but also all plant cells and plants which contain
the gene. After a challenge by Greenpeace, the Patent Office's Appeal Board ruled
the patent may only cover genetically engineered genes and plant cells but
cannot extend to a whole plant, its seeds and future generations of plants
grown from the cells. The decision seems to imply that in Europe, patenting of
genes and cells is permissible but not of seeds andplants. The limits thus set
on patenting will have serious implications for the biotechnology
industry.
Meanwhile,
there have been activities by many different groups, including farmers,
indigenous people, parliamentarians, religious leaders, and NGOs opposing the
patenting of all life-forms, or living things.
In India,
farmers' movements led by M D Nanjundaswamy of the Karnataka Farmers' Union,
are campaigning against the patenting of seeds and plants and the operation of foreign
grain companies in the country. In 1993, half a million farmers rallied in
Bangalore to protest against the implications of the Uruguay Round treaty on
intellectual property rights, which opens the door to patenting of genetic
materials, seeds and plants.
*Indigenous
peoples' groups have held regional meetings in South America, Asia and the
Pacific, to voice their opposition to the granting of patents to companies on
plants and their genes. Also, at the UN Women's Conference in Beijing, 118
indigenous groups from 27 countries signed a declaration demanding 'a stop to
the patenting of all life forms' which is 'the ultimate commodification of life
which we hold sacred.' They also demanded that the Human Genome Diversity
Project be stopped and a rejection of patent applications for human genetic
materials.
Parliaments
have joined in the fight by opposing proposed laws that would legalise patents
on life. In March 1995, India's Upper House of Parliament forced the government
to defer indefinitely a patent amendment bill to bring the Indian Patent Act in
line with the World Trade Organisation's treaty on intellectual property
rights. The bill would have allowed for the patenting of life forms.
Also in
March, the European Parliament voted against the European Commission's proposed
directive on 'legal protection of biotechnological inventions'. The directive
would have allowed for patenting of biological materials and microbiological
processes, with only some restrictions.
In May 1995,
leaders of 80 religious faiths and denominations (including the Protestant,
Catholic, Muslim, Hindu, Buddhist and Jewish faiths) held a joint press conference
in Washington announcing their opposition to the patenting of genetically
engineered animals and human genes, cells and organs. 'We believe that humans
and animals are creations of God, not humans, and as such should not be
patented as human inventions,' they said in a signed statement. The leaders
have launched an educational campaign to raise theological concerns over the
patenting of life. Religious groups in other countries are also taking up the
issue.
Environment
and development NGOs have also been increasingly active. Groups like RAFI and
GRAIN have been carrying out educational activities and also carrying out
lobbying in the Biodiversity Convention. A coalition of 14 United States groups
in May signed a joint statement after a conference at Blue Mountain. 'As part
of a world movement to protect our common living heritage, we call upon the
world and the US Congress to enact legislation to exclude living organisms and
their component parts from the patent system,' says part of the Blue Mountain Declaration.
The campaign
against life patenting is likely to spread, with more actions taken up by
public interest groups at national level, and increased networking among these
groups.
At
international level, the World Trade Organisation and the Biodiversity
Convention are two critical fora for setting principles and legal frameworks on
the patenting of biological materials and life forms.
The WTO's
trade-related intellectual property rights (TRIPs) agreement will have the most
decisive influence over national laws. TRIPs has ambiguous language in its
clause on living organisms: patenting of microorganisms is compulsory, plants
and animals can be excluded, but protection of one kind or another is required
for plant varieties. This clause is up for review after four years, and is
already on the agenda of the WTO's trade and environment committee. The outcome
of the review process will be of crucial importance.
The
Biodiversity Convention is presently more 'friendly', in recognising 'farmers'
rights' to their knowledge over the use of biodiversity. The rights of
indigenous people are also likely to enter the Convention's future agenda. The
treaty's references to intellectual property rights is finely balanced between
recognising the need to implement IPRs and the need to ensure that IPRs do not
block the sustainable use of biodiversity.
The
challenge for those campaigning against life patents is to ensure that the WTO
does not make it compulsory for member countries to patent living organisms,
and to develop within the Biodiversity Convention the case against biopiracy
and concrete measures to counter it.
There is an
urgent need for an international protocol to protect the rights of human
subjects from patent claims and unjust commercial exploitation. In February
1995, a United Nations Development Program (UNDP) supported workshop
co-sponsored by the Philippines-based SEARICE came out with a strong demand
that “there should be a system of protection and recognition of indigenous peoples’
resources and knowledge, one which conforms to indigenous peoples’ worldview
and contain formulas that will prevent the appropriation of ourselves and
resources by countries of the North and others.’
“Indigenous
peoples are willing to share their knowledge with humanity, provided they are
informed how, when , and where it is used.”, they added.
Internationally,
the Council for International Organizations of Medical Sciences (CIOMS)
oversees regulations governing human genetic research. But CIOMS guidelines
does not give special concern on genetic research. It does not cover ethical
standards which should prevent researchers from having their integrity
distorted and invalidated because they patent life forms for money.
The issue of
life patenting must be brought to the
attention of the International Court of Justice in the Hague. This means the
issue of life patenting can mobilize public opinion and engender political
debate at the highest and most visible judicial level./Dr. MICHAEL BENGWAYAN
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