Indigenous peoples win battle in long war to protect knowledge 

A nomadic couple brushes their teeth using neem (native Indian tree) sticks in Allahabad, India. Members of this nomadic tribe move from one city to another camping on street sides and making a living by picking up odd jobs. As income starts to dip, they move en masse to another city and start over again. AP Photo/Rajesh Kumar Singh

The knowledge of indigenous peoples about the healing powers of nature has long been coveted by big business. A new UN agreement aims to restrict the misappropriation of this knowledge and its genetic resources. 

In 2005, India won a ten-year battle at the European Patent Office (EPO) against a patent on the oil of the Indian neem tree. At issue was the use of the oil as a biopesticide. The EPO had granted the patent to the US Department of Agriculture and the multinational US company WR Grace in 1995. However, Indian scientists argued that the medicinal effects of the neem tree were part of traditional Indian knowledge.

The neem tree has been one of the most important medicinal plants in traditional Indian medicine, Ayurveda, for over 2000 years. Neem derivatives are also traditionally used in the manufacture of soaps and cosmetics. 

The case of the neem tree is considered a classic example of biopiracy by similarly affected countries and indigenous peoples. Biopiracy involves the use of traditional knowledge or genetic resources without the consent of the original owners and without them being able to benefit from it. 

Genetic resources such as plants, seeds, microorganisms, animal breeds or genetic sequences cannot be patented, because they are natural products.

However, inventions based on these resources can be protected by a patent. Companies are increasingly using such genetic resources in cosmetics, pharmaceuticals, food supplements or in biotechnology. 

‘History made’

Starting in 1999, biopiracy became the subject of negotiations in Geneva towards a new UN agreement on the patent system. Developing countries and indigenous peoples in particular had been campaigning for this for years. According to the 1993 UN Convention on Biological Diversity, all countries have sovereign rights over their natural resources and therefore have the right to determine access to them. 

Delegates at the Opening of the Diplomatic Conference on Genetic Resources and Associated Traditional Knowledge Creative Commons Attribution 4.0 International License

So far apart were the positions of member states that it took until today – 25 years later – for the negotiations to finally reach a compromise agreement. The indigenous peoples were able to participate in negotiations in a WIPO treaty for the first time, officially as observers, but they were also able to put forward their proposals. 

Different worlds collided during the negotiations. “For indigenous peoples, traditional knowledge about nature is not just information,” Preston Hardison, policy advisor to the indigenous Filipino Tebtebba Foundation, told SWI swissinfo. It is linked to their culture, history, and identity, and often comes from a spiritual place. All plant and animal species are part of their kinship. 

Last May in Geneva, the 193 member states of the UN Intellectual Property Organisation (WIPO) reached a consensus on the new treaty. It will enter into force once 15 WIPO states have ratified it. 

“We have made history today,” WIPO Director General Daren Tang told the media at the conclusion of the negotiations. The new treaty combines patent regulations and the traditional knowledge of indigenous peoples for the first time: in the future, when companies apply for patents, they will have to disclose the origin of the genetic resources and the associated traditional knowledge from which they have developed their products. 

WIPO Director General Daren Tang delivers remarks at the TM5 Meeting held in Brussels, Belgium, on October 24, 2022. Nicolas Economou

Content limited 

The agreement is therefore primarily about greater transparency in the patent system. Over the years, the content of the negotiations was limited, in the hope of reaching compromise. In the final agreement biopiracy is not mentioned, neither are there provisions for benefit sharing (i.e. the sharing of profits from the use of genetic resources and traditional knowledge). This is because benefit sharing is not an issue in the current patent system. 

“The WIPO agreement increases the transparency of genetic resources and traditional knowledge in patent applications, but does not provide direct protection for the genetic resources of indigenous peoples,” Swiss negotiator Marco D’Alessandro of the Swiss Federal Institute of Intellectual Property (IPI) told SWI. 

However, in conjunction with other agreements such as the Convention on Biological DiversityExternal link and the associated Nagoya Protocol, the WIPO agreement does at least contribute to better protection. This interaction also includes the national laws with which the international agreements are implemented, which is also conducive to benefit sharing, explained D’Alessandro. 

So, if a company studies plants or microorganisms in a country in order to manufacture new products, it must have the appropriate licences there. The future profit required to be returned to the country of origin and its indigenous peoples is also contractually regulated. This can be money, co-operation or knowledge transfer. 

First step 

“We are pleased that we were able to reach an agreement,” said June Lorenzo from the indigenous peoples of Pueblo Laguna and Diné/Navajo in the US state of New Mexico. The human rights lawyer was a member of the Indigenous Peoples’ Caucus during the negotiations. “Disclosure is a small but important first step to ensure that indigenous peoples’ resources are not taken without their consent.” Disclosure could be a basis for benefit sharing, she says. 

Sadhu Adbangnath, a Hindu priest, in a tree where he has made his home in Bombay. He has been living here for a month in a unique protest, after a builder demolished a temple where he would pray. Keystone

Nirmalya Syam from the Geneva-based think tank South Centre also described disclosure as an important step towards curbing the misappropriation of genetic resources and traditional knowledge. In contrast, Grega Kumer from the International Federation of Pharmaceutical Manufacturers and Associations (IFPMA) emphasised that the treaty should not lead to further legal uncertainty, in addition to the existing national legislation on the disclosure of patents. 

Issue of sanctions 

Throughout the negotiations, the type of sanctions to be imposed on companies if they provide false information during the disclosure process was a contentious issue. 

For industrialised countries, including Switzerland, it was important that patents were not revoked because of false information. In their view, this would undermine opportunities for innovation. 

“We wanted to create an instrument that both supports innovation and contributes to better protection of genetic resources and traditional knowledge,” Swiss negotiator Marco D’Alessandro from the Swiss Federal Institute of Intellectual Property (IPI) told SWI. However, he said the agreement should not be used by competing companies to invalidate patents of other companies by claiming that the origin had been insufficiently specified. 

Switzerland is one of over 30 countries that already have a disclosure obligation. 

Since 2008, Swiss patent law stipulates that wilfully false statements by patent applicants regarding the origin of genetic resources or traditional knowledge are punishable by a fine of up to CHF 100,000. 

June L. Lorenzo, attorney and consultant on Indigenous Peoples Issues at the Counsel to American Indian Law Alliance in Laguna Pueblo, USA, 2011. Patricia Leiva/OAS

According to the compromise reached in the negotiations, patents cannot be revoked due to incorrect information in the disclosure of origin. However, the incorrect information must be corrected. And, if the disclosure is fraudulently false, states can impose sanctions, including the invalidation of patents. Sanctions always depend on national legislation. 

A hypothetical example: a patent applicant claims that the plant on which his invention is based comes from Switzerland, even though he got it from Brazil. This is because he wants to avoid having to share advantages with Brazil. If it is later discovered that the plant originated in Brazil, the patent holder can be taken to court and, depending on national laws, lose his patent because he made false statements with fraudulent intent. Under Swiss law, he would probably be penalised with a fine. 

However, as the case would be publicised, he would probably still have to share the benefits with Brazil afterwards. 

But, says Hardison of the Tebtebba Foundation, most indigenous peoples cannot afford to go to court to prove that a disclosure is criminal. 

Building databases 

The USA and Japan always argued in favour of establishing more databases instead of a disclosure obligation. The WIPO agreement now includes both the disclosure obligation and future databases. For Switzerland, for example, this goes hand in hand: if companies state where they obtained the plants in their patent, the patent offices in that country can use the relevant databases to check whether the invention is new. 

However, the indigenous peoples want the planned databases to be available only to patent offices. They fear that traditional knowledge could become known and possibly exploited outside of patents if the databases were publicly accessible. In addition, they do not want to share spiritual aspects of their knowledge with the whole world, such as knowledge that was passed on to them by their ancestors, which many regard as sacred to their communities. 

In the end, the indigenous peoples got agreement for their inclusion in the development of databases, so they will have a say over which traditional knowledge is included. And, in future, they will also be able to take part in the meetings that examine the implementation of the treaty, and will be present at discussions on possible further development of the agreement. 

Edited by Imogen Foulkes/vm