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Town like Alice takes on German 'biopirate'

YOLANDI GROENEWALD | JOHANNESBURG, SOUTH AFRICA - Jan 22 2010 14:11

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A South African community is to challenge German homeopathic giant Schwabe Pharmaceuticals in court in Munich next week over a traditional medicine the company is seeking to patent.

The case could set a precedent in cases in which multinationals use the plants and indigenous knowledge of developing countries, where laws may not protect communities' intellectual property rights.

Schwabe wants to patent a method for producing extracts from the roots of Pelargonium sidoides and Pelargonium reniforme to make cough and cold syrups. The company has also hit problems in India over alleged bioprospecting.

The community, in Alice in the Eastern Cape, said the extraction method has been used for generations by traditional healers and Schwabe has no right to patent it.

Community member Nomthunzi Sizani said she grew up with the plant and it was trusted in her community as a flu and cough remedy.

"The community wants to stop [companies] from saying they were the first to know that this medicine is important, because we grew up knowing that. They are like thieves, stealing the indigenous knowledge," she said.

The plant is endemic to Southern Africa, especially the Eastern Cape and Lesotho. The Zulu, Basotho, Xhosa and Mfengu peoples have used it for centuries to treat respiratory complaints, and the compound it contains, cumerin, is now a key ingredient in remedies.

The Alice community is supported by the Africa Centre for Biosafety and the Swiss biopiracy watchdog, the Berne Declaration.

The centre's Mariam Mayet said the community has a strong case and she will travel with Sizani to give evidence. "The European companies have to realise that they can't simply come to poor countries and use the resources as they please."

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Mayet said Schwabe plans to gain extensive monopoly rights on the use of pelargonium through the patent and that "the patent violates the provisions of the European Patent Convention and the United Nations Convention on Biological Diversity".

"Schwabe has been using the traditional knowledge of these communities without asking their prior consent and without sharing the benefits from its use equitably with them, as the convention requires."

Mayet said South Africans should be the first to develop pelargonium-based drugs.

She and Sizani are worried about the effect harvesting may have on the community's environment, because demand for the remedy is so significant.

Sizani said locals sell it to intermediaries, who resell it to the pharmaceutical firms.

The South African government is not party to the court action, though the science and technology and environmental affairs departments are known to be concerned about biopiracy in South Africa.

Shonisani Munzhedzi, chief director of biodiversity and heritage at the Department of Environmental Affairs, said government had the necessary legislation in place to counter biopiracy.

He said the department was informed in 2007 of the intention of the Alice community to challenge the patent involving Pelargonium sidoides and Pelargonium reniforme in Germany.

"No further details or communication was received by the department in this regard," he said.

An assessment is being conducted which will inform the management plan for the two pelargonium species, including its potential listing as threatened, he said.

South Africa's Biodiversity Act regulates bioprospecting and the export of plants and provides for a "fair and equitable sharing by stakeholders in benefits arising from bioprospecting in South Africa".

Schwabe did not respond to emailed questions from the Mail & Guardian. But media reports have quoted the company's head, Willmar Schwabe, saying that "so-called 'biopiracy' is not a problem of patent law, but is probably a direct result of actual conditions in many so-called Third World countries".

"Most of the affected countries did not effectively prevent access to their genetic resources in the past, but they now react by lamenting the exploitation of their genetic diversity and then continue by demanding participation in the economic advantages," Schwabe said.

Others said that pharmaceutical firms provide valuable research back-up to ensure that important medicinal plants are developed properly and that, through the right partnerships, local communities and the companies can benefit.

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Comments

dang, no free lunch AGAIN

white trash on January 22, 2010, 5:17 pm

These biopirates make me so furious I could spit. In India, if I remember correctly, it was the neem tree. Thieves! I wish the human race would hurry up and evolve past this stage.

Madeleine Du Toit on January 23, 2010, 2:33 pm

International Patent Law is notoriously complex, (and very pricy to effect!).
Even if I don’t know much about European Patent Convention, I can safely say that a) a method to extract medicine from plant material is definitely patentable.
b) Only so if said method was not b i) previously patented b ii) was not previously in the public domain.

And with the latter lies the rub, as it was obviously not previously patented.

Said community itself can forget about patenting it now (that window of opportunity is forever closed with Swabe’s application). The big question is however: can Schwabe prevent them from marketing their (the community's) product?
The pelargognium extracts are increasingly a lucrative business in Europe. (I was told years ago from Germany about its extreme efficacy for fighting flu.)

The Devil is in the details:
Is it really stealing? How involved is the extraction method? Extraction of plant material is subject to the laws of chemistry and physics. A large firm like Schwabe can independently arrive a an identical method –without having learnt anything from said community (-unlikely but possible).
To what extend was it in the public domain? Was it ever publicised in (local) newspapers, academic theses, TV?
This and much more will have to be dealt with.

A very interesting case! Here’s hoping that Schwabe ends up with nothing as a successful application would seem unfair.
Let them simply compete –without patents.

Twannie Herinck on January 24, 2010, 10:13 am

the other one is lepatata the horn shembe says it is his but that is been used by the pedi's tradition group called dinaka way before churches where found in south africa-then there are gospel songs -woooo !! i love the sight of all this mix up-

JO'T MOUTLANA on January 25, 2010, 11:28 am

Yes, the challenge will be to prove that it is in the public domain, and on a fairly limited definition of "public". SA made some effort at informing traditional healers of the risks in NOT providing their knowledge on a national registry - like the hoodia case. Not sure where that effort has led in recent years.

The idea is not to give communities a free ride - it is to NOT give the pharmaceutical companies one. It's perfectly fine that Schwabe market and use this SA genetic material under license, but they shouldn't be able to extract it, synthesize it, or plant it elsewhere without acknowledging its source in some form of benefit-sharing arrangement (per conventions sited).

By seeking a patent, they are signalling that they value the opposite approach - the strategy of the unscrupulous bioprospector. Without a patent, there is still room for competition.

Remember when the word "rooibos" could only be used by one company when sold in America? SA exporters were denied the largest growing market. It took over 10 years to get rid of that monopoly. Let's not let that happen again...

Paul Robertson on January 25, 2010, 7:30 pm

The creation of Traditional Knowledge databases comes handy in such situations. No one will be able to patent knowledge identified with a particular community because this will be well documented. ARIPO, a regional patent office is speaheading the creation of such databases for its memberstates in Africa.

C Pundo on January 26, 2010, 1:34 pm

Dear Colleagues

I am delighted that the indigenous peoples of Africa are rightfully challenging these unethical multi-million dollar pharmaceutical companies! I am reflecting on the peoples' struggle regarding Hoodia and countless other traditional indigenous medicines. We are with you in supporting your spiritual and biocultural resource rights according to the UN Declaration on the Rights of Indigenous Peoples. The large corporations must comply with international law.

May you go from strength to strength.

Sincerely,

Dr. Amy Eisenberg
Sonoma County Indian Health Project
International Society of Ethnobiology
Center for World Indigenous Studies
USA

Dr. Amy Eisenberg on January 28, 2010, 4:44 am

Before you "traditional knowledge" folks get on your high horse and self-righteously claim the spiritual upper hand in this, or any, so-called "biopiracy" dispute, it would behoove you to know what you're talking about.

Read the patent application and then, if you can, explain how the method described in the application is obvious in light of whatever methods you think were used previously. If they're the same or obvious variations, then the patent application will be rejected as obvious. If not, then just go away quietly.

Patent application in English here: http://j.mp/cq5CLt (read particularly pp. 7 onward.

[Note: there are a few related applications. I'm fairly confident this is the one at issue].

Daniel Ballard on January 28, 2010, 4:14 pm