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Theft of Indigenous Knowledge (18/10/2004)

Indigenous Knowledge Can Be Patented
King'ori Choto (Nairobi, Kenya)
The Nation, October 11, 2004
http://allafrica.com/stories/200410110052.html

A dispute has emerged between a US-biotechnology firm, Genencor International Inc. on the one hand, and the Kenya Wildlife Service and the International Centre for Insect Physiology and Ecology on the other over alleged illegal extraction of the tiny organisms known as extremophiles, which secrete a powerful cellulase enzyme used in the manufacture of potent detergents and denim processing. Genencor Inc. has refuted the claims.

KWS and ICIPE claim that Genencor Inc. illegally harvested the organisms since prior consent required before such extraction could begin was not given.

In the past, there has been unfair exploitation and theft of not just natural biological resources, but also of intangible indigenous or traditional knowledge in plant medicine by pharmaceutical entities to develop blockbuster drugs. But now international law is moving to respond to the need to protect indigenous knowledge and to ensure that local communities benefits from the use of it.

Such situations as the one involving Genencor Inc. have led to questions as to whether poor countries lacking the technological and capital wherewithal to develop such natural assets should prevent those that can from exploiting them for the "benefit of mankind." These include medicinal and therapeutic techniques used by such communities to heal the sick as well as innovative practices in nutrition and agriculture.

The "theft" of intangible indigenous knowledge stems from the absence of a mechanism to allow beneficial access to such resources. By "beneficial
access" is meant a situation where the party capable of exploiting the resource is allowed meaningful access and the party allowing such access is rewarded for it either through monetary or non-monetary means.

An illustration is in order. When pharmaceutical giant Pfizer launched the popular anti-obesity drug P57, South African authorities threatened legal action. The active ingredient in the drug known as the Hoodia Cactus, had been used by the San people to stave off hunger for thousands of years.

The South African Council for Science and Industrial Research had originally patented this knowledge in the interests of the San people. SACSIR argued that there was no novelty in P57 to warrant exclusive licensing to Pfizer to manufacture the drug since the San bush people had
what is known as 'prior art'. Pfizer agreed to share the profits with the San people.

Claims by indigenous or local communities over certain discoveries rendered futile

The problem with 'prior art', however, is that it is not usually documented. It only exists in the oral traditions of the people and is passed on from generation to generation. Standard legal practice relating to intellectual property rights requires that documentary evidence of 'prior art' be furnished. This means that claims by indigenous or local communities over certain discoveries are rendered futile owing to this requirement.

This unfortunate development in jurisprudence was mainly caused by the failure by international law to provide adequate protection to indigenous
knowledge resources, long regarded as just being part of the common heritage of humanity.

This negative trend was happily reversed with the coming into play of the Convention on Biological Diversity in 1992, where it was recognised perhaps for the first time in international law, that nations had sovereign rights over their resources. State parties affirmed the importance of indigenous knowledge and resources. Based on this, States especially in the developing world began to establish a framework regulating access to genetic plant resources and systems for fair and equitable benefit sharing.

CBD was followed by the Agreement on Trade-Related Intellectual Property Rights (TRIPS), one of whose aims is to create an international standard for minimum intellectual property rights. However, there have been complaints that the TRIPS framework is structured to the benefit of developed nations since it does not recognise the community rights over resources.

RIPS also ignores the reality that it is difficult to define an innovation or novelty in the traditional context because it is sometimes difficult to determine with precision the person who say, discovered, a certain traditional therapy.

Some legal scholars have innovated what is referred to as the sui generis intellectual property rights model, a legal framework that actively recognises community rights to indigenous knowledge of plant species. They argue that once community-based IPRs are recognised, it becomes possible to secure equitably the benefits that accrue from the commercial exploitation of indigenous knowledge in areas such as the development of novel drugs and therapies.

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