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genetic resources

Fruit of contention

Japanese company registers trademark and patents process for producing "cupulate"

Cupuassu (Theobroma grandiflorum), a tree from the same family as cacao, the seed of which is a source of food in the Amazon, is at the center of a controversy involving non-governmental organizations (NGOs), producers from Acre, the Brazilian Agricultural Research Corporation (Embrapa), the Itamaraty (The Brazilian Foreign Relations Ministry) and the Japanese giant, Asahi Foods Co Ltd.

It all began when an NGO that supports local producers in marketing byproducts of cupuassu, like jams and sweets, Amazonlink, was preparing to sign a sale contract with a company in Germany at the end of last year. “Then, when understandings were being reached, they told us that the deal would only be concluded if the name ‘cupuassu’ did not appear on the product, since cupuassu had been registered as a trademark in the European Union by Asahi Foods, since last year,” says Michael F. Schmidleher, Amazonlink’s president. The same Japanese company, it was later found out, had likewise registered cupuassu as a trademark in the United States and in Japan.

A more detailed investigation revealed that Asahi Foods had also patented the method for extracting oil and fat from the seed and the process for producing ‘cupulate’, a kind of chocolate prepared from the fruit, in Japan and the European Union, between the months of October 2001 and July 2002. In 1998, the use of cupuassu extract in the composition of cosmetics had already been registered by Body Shop International. The Japanese company’s patent, though, may show similarity with another one, lodged by Embrapa with the National Institute for Industrial Property (INPI) in 1990, relating to the “Process for obtaining semi-bitter cupulate in powder and in tablets with white milk using cupuassu seeds.”

The story became public at the beginning of this year, raising suspicions that Brazil continues exposed to acts of biopiracy, despite the protective measures provided for in Provisional Measure Nº. 2186 – 16 ( a provisional measure is an act decreed by the executive that goes in effect immediately; the measure goes to Congress which analyzes its contents and approves or not), on the access to genetic heritage and the traditional knowledge associated to it.

“It is important for this case of cupuassu to call attention to the larger problem of biopiracy,” says Minister of the Environment, Marina Silva. The ministry, she adds, is directing the creation of an inter-ministerial and inter-institutional work group to analyze the registration of trademarks and the lodging of patents for cupuassu. This group, she says, is going to harness “efforts and knowledge in the fields of agronomic and genetic research, of intellectual property and protecting diffuse and collective rights and interests,” as well as international cooperation.

The minister also intends to speed up the approval of measures to protect biodiversity. When she was a senator, she was the author of a bill to regulate access to genetic heritage, already approved by the Senate in 1998, but still at a standstill in the Chamber of Deputies. “In 2000, there came the Provisional Measure of the previous government, prompted by the negative repercussion of the contract entered into between the social organization Bioamazônia and a foreign company from the pharmaceutical sector, in the first half of that year,” she says.

Now, in command of the ministry, Marina Silva has plans to broaden the composition of the Council for the Management of the Genetic Heritage (Cgen), created by the Provisional Measure, to include representatives of scientific entities, the civil society, indigenous and local communities. The idea is that all of them together may propose to Congress a way for converting the Provisional Measure into law. Another idea that is being studied is to unfile the bills on the subject that are still with the Chamber of Deputies, to produce a substitute bill based on consensus, and to submit the new version to the approval of Congress.

The expectation, she stresses, is for it to be possible, before the year is over, to promulgate a “true” Law on Access to Genetic Resources. “Accordingly, Brazil will have chances of really imposing national rules to control access and economic usage of its mega-diversity,” the minister argues. And she sums up: “In the light of the consummated facts of patents, trademarks and other forms of registration and appropriations of our resources and rights, always in the ambit of the governments and of the laws of other countries, it is clear that the recovery of what is duly ours will only be possible to reach by means of coordinated actions on an international scale, whether in the courts of countries that have granted patents and trademarks without taking our rights into consideration, or in the negotiations under way in the World Trade Organization (WTO), the World Intellectual Property Organization (Wipo), the Convention on Biological Diversity and other instances,” the minister explains.

Prudence and caution
In this field of debate, on the access to genetic resources, though, in which national and international legislation and diverse interpretations compete, agility is needed as not to lose the timing for appeals – in the case of contesting the registration of trademarks or the filing of patents -, but, above all, prudence and caution. The distinctions are subtle. An example of this: Wipo is suggesting the use of the term biosquatting, and not biopiracy any more, to designate acts of misappropriation of genetic resources and traditional knowledge (see the interview with Nuno Pires de Carvalho, head of Wipo’s Genetic Resources, Biotechnology and Associated Traditional Knowledge Section).

One of the arguments is that piracy, by definition, concerns illegal acts, and not all the acts designated by biopiracy are necessarily illegal. In the lack of legislation to restrict access to genetic resources, picking specimens of a plant, taking them abroad, identifying the active component, synthesizing it and patenting it, is not illegal. If legislation exists, these acts may be illegal in the country where collecting is unauthorized, but not in the country where the patent was requested.

Observed with due care, the registration of the patent by Asahi Foods Co Ltd. may not be characterized as an act of biopiracy or, in accordance with the new designation from Wipo, as biosquatting. In the registration of the patent, Asahi Foods clearly identifies the use of fruit purchased at a cupuassu plantation in the environs of Manaus. It is known that the states of Amazonas exported 50 tons of cupuassu seeds to Japan in the first four-month period of 2002, and the expectation is that Japan will import some 200 tons this year. It remains to find out if the process of extracting the oil and fat to produce cupulate, claimed as its own by the company, is a new one. And that is what Embrapa wants to know before contesting the patent or otherwise.

Registration of the trademark
The problem, at least apparently, may lie with the registration of the word cupuassu as a trademark to designate products derived from this fruit, which goes against the prerequisite for trademarks to be eligible for registration, which is their distinctive quality. “It would be the same thing as registering the words orange, papaya or banana,” is the example given by Nuno Carvalho, from Wipo. The Itamaraty intends to mobilize its embassies in the countries covered by the registration of the trademark, to get more information on the case and to assess whether the registration of the trademark may jeopardize Brazilian exports.

Cupuassu is an important source of income for small producers in Acre. An association of planters from the region called Economic, Consortium-based and Compacted Reforestation (Reca) alone has brought together 364 families who produced 850 tons of the fruit and 95 tons of seeds last year. “The major part of the sales goes to São Paulo and the Northeast,” says its director, Hamilton Condak. The pulp of the fruit is marketed at a price that varies from R$ 2 to R$ 5, which has been a strong stimulus for the expansion of the orchards and for the appearance of small companies making cupuassu byproducts like jams and sweets.

Created in 2001, Amazonlink is beginning to handle the sale of cupuassu byproducts abroad, as in the frustrated understandings with the German company. If the registration of the trademark by Asahi Foods is maintained, the alternative for the Brazilian producers would be to market the product with another name, or run the risk of paying fines, not to mention the possibility of losing business.

Ignorance and prejudice
Cupuassu is not the only case of a suspect patent abroad. For example, Rocher Yves Biolog Vegetales registered in France, Japan, the European Union and the United States the patent of a cosmetic and pharmaceutical composition based on the andiroba (Carapa guianensis), a tree whose seeds have insect-repellent and medicinal properties. Morita Masaru, of Japan, has now also patented in Japan a repellant for ants and other insects that uses the oil from the andiroba’s fruit.

And the examples are multiplying: the copal tree (Copaifera sp), known as the antibiotic of the forest, has a world-wide patent registered by Technico-Flor for use in cosmetic and food compositions. In the United States, Aveda Corp has patented a method of dying hair or eyelashes that contains copal pigments and resins. The minister herself accompanied similar problems when she was a senator, like the case of the patents granted to the English chemist Conrad Gorinsky in Europe, the United States and Canada, over compounds from medicinal plants used by the Wapishanas, in the frontier region between Roraima and Guyana.

According to a report by researchers, she says, the Wapishanas use the green-heart (Ocotea rodioei) and cunani (Clibadium sylvestre) plants for the same purposes that were patented by Gorinsky. The “biopirate,” as she describes him, discovered and isolated the molecules responsible for the applications taught by the Wapishanas for many generations. “In the case of bebeeru or green-heart, there is a specific reference to the act of chewing the nut from the green-hearted tree, as an elementary form of contraception. Also cited are the febrifuge and antiperiodic properties of the infusions made with the bark of the green-hearted tree.

It was to treat these conditions that Gorinsky patented the alkaloid molecules that he denominated “Biologically Active Rupununines,” in an explicit reference to the Rupununi River, in the region of which the plant is to be found,” the minister explains. And she concludes: “The attempts for an effective recovery of violated rights, though, come up against the prejudices and ignorance of the powerful, and the lack of priority on the part of those who could have been an ally in this new form of social struggle.