Patent rules tend to favor corporations rather than indigenous communities.
In theory everyone has the right to apply for and enjoy the rewards of, an invention based on a biological discovery. However, patent applications usually require inventions to be described in technical language and require an initial investment of capital. While an indigenous healer might know of many plants that have the potential to be used as novel medicines, applying for a patent on these medicines is something that is not apart of his/her cultural tradition as the concept of “ownership” over nature may be very different than Western legal hegemony.
The rules on the eligibility of ‘novel’ biological material for patent protection are quite demanding.
Even if a native healer has developed a therapeutic plant extract or herbal formulation that he/she decided to patent, acquiring a patent for this formulation is extremely difficult. Usually it’s not sufficient to simply describe how a plant compound exerts a therapeutic effect, or even what this compound is. Meeting requirements of “novelty” and “inventive step” (or “non-obviousness“ in the United States) often means that the applicant must produce a synthetic version of the compound or a purified extract.
In order to patent new medicines found in nature, one needs assistance of capable scientists and access to expensive laboratory equipment. What this usually means is that patents are not intended to reward the initial discovery of the resource itself, but the extra work necessary to produce a patentable invention from a biological resource. This is a critical distinction. Who should be awarded the patent? The person who made the initial discovery of the useful characteristic of the plant (this often being an indigenous person)? Or the scientist/institute which isolated and elucidated the active compound from the plant? This debate extends beyond plant derived medicines, it can also be extended to plant breeds and varieties, to agricultural practices, designs, art, and songs. Learn more about the commercialization of indigenous knowledge by reading our Biopiracy section under Genetic Resources.References: - Jim Chen (2005). “The Parable of the Seeds: Interpreting the Plant Variety Protection Act in Furtherance of Innovation Policy”. Notre Dame Law Review 81: 105–166. - Karasov, C. (2001). “Who Reaps the Benefits of Biodiversity?”. Environmental Health Perspectives (Environmental Health Perspectives, Vol. 109, No. 12) 109 (12): A582 A587. - Paul Gepts (2004). “Who Owns Biodiversity, and How Should the Owners Be Compensated?”. Plant Physiology 134 (4): 1295–1307.
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