EDUARDO CESARThe name of the plant Phyllanthus niruri, known in Brazil as ‘quebra-pedra’ (stone breaker), appears in the formula of 42 products registered in the United States, the European Union and JapanEDUARDO CESAR
Countries from within the Amazon basin have decided to join forces to harmonize their legislations concerning intellectual property; to protect genetic resources and the traditional native knowledge associated with them; and further to combat bio-piracy. Representatives from Brazil, Bolivia, Colombia, Ecuador, Guiana, Peru, Suriname and Venezuela met for the first time on the 26th of June in Rio de Janeiro in order to evaluate current strategies, at a meeting that was set up by the Amazonian Cooperation Treaty Organization (OTCA). “If we don’t adopt a convergent regional focus, we’ll not obtain results”, said ambassador Roberto Jaguaribe, the president of the National Institute for Industrial Property (INPI) and the secretary for Industrial Technology of the Ministry of Development and Exterior Commerce, who participated in the meeting.
The OTCA was established in 2003 in order to implement the Amazonian Cooperation Treaty, signed by eight countries in 1978, with the objective of implementing measures to preserve the environment and the region’s natural resources, which houses one of the largest biodiversities on the planet. “All of us have problems with bio-piracy”, explains the Ecuadorian Rosalia Arteaga, the organization’s general secretary.
At the meeting in Rio de Janeiro a list of eight group actions were set out, among them cooperation on the identification of mechanisms that prohibit the improper registration of names and expressions used by the local communities. For example, last year Brazilian non-governmental organizations captained by the Amazonian Work Group (GTA), had to mobilize themselves to rescue the name cupuacu – Theobroma grandiflorum, a tree of the same family as the cacao tree and whose seed is a source of food in the region –, from being registered as a trademark by the transnational company Asahi Foods and Cupuacu International in 1998. More recently, the same Asahi Foods lost the registration of the patent for Cupulate, a type of chocolate made from the seeds of the cupuacu with technology patented by the Brazilian Agricultural Research Corporation (Embrapa).
Illegal appropriation
The countries that make up the OTCA have, in isolation, taken a series of measures to protect their biodiversity from the actions of the appropriation of trademarks. In Brazil, the Ministry of the Environment has concluded a wide-ranging mapping of the descriptions and known uses of close to 9,000 animal and vegetable species. This list was sent to the Inter-Ministerial Group for Intellectual Property (Gipi), will be analyzed by the INPI and is going to make up a data bank that will serve as a source for consultation and guidance for patent writers throughout the world.
In spite of the non-existence of an international treaty establishing criteria for the registration of patents and trademarks, it is part of the international rules to reject known descriptions – such as was the case with cupuacu –, since they do not have as yet an essential qualification: distinctive capacity. For example, trademarks such as the names of oranges, papaya or bananas are not registered. This is not the case with the cupuacu. The detailed description of these Brazilian biodiversity products and their use, therefore, has to be available in a data bank accessible to the writers of trademarks and patents throughout the world. The list with the various descriptions of Brazilian biodiversity and their uses with local communities, is going to be integrated into an even greater data bank containing lists of the products of other participating countries, which is being organized through the OTCA.
‘Quebra-pedra’ (Stone Breaker)
The Brazilian initiative is not an isolated case. Peru, as well as mounting a similar data bank, has created a commission to investigate the registration of patents of products coming from its regional biodiversity that are registered in Europe, Japan and the United States. Around 500 registrations of products related to native Peruvian species have been identified in the Patents Offices of the United States, the European Union and in Japan, as was detailed out by Santiago Roca, the president of the National Institute for the Defense of Competition and Protection of Intellectual Property of Peru, to those participating at the OTCA meeting in Rio de Janeiro.
The denominated plant Jarrow Chanca Piedra or Phyllanthus niruri, for example – which in Brazil is the raw material for the tea called ‘stone-breaker’, used in the treatment of kidney problems –, appears mentioned 26 times in the research carried out and registered at the American Patents Office, 11 times in Europe and 15 times in Japan, where, indeed, it has been related, since 1996, to the patent of a hair tonic. The other products researched were: Hercampuri extract (Gentianella alborosea fabris); the camu-camu (Myrciaria dubia); the yacon (Smallanthus sonchifolius); the caigua (Cyclanthera pedata L); and the sacha inchi (Phyllanthus niruri).
Restrictive measure
Peru has one of the most advanced legislations for the defense of biodiversity within the eight countries that go to make up the OTCA. In 2002 a bill was passed establishing the administrative protection of traditional knowledge and that of the indigenous population associated with genetic patrimony. In Brazil, genetic patrimony is protected by the Provisional Law No. 2,186 of 2001, which recognizes the right of indigenous and local communities to decide about the use of their knowledge associated with genetic resources and forecasts the sharing of benefits, if there should be use and commercialization. Nevertheless, this provisional law is considered ‘very restrictive’ according to Jaguaribe, and by the end of the year the federal government intends to send to the National Congress a project for a new law that, at the same time that it combats bio-piracy, gives incentive to the development of technical and industrial training for the use of biodiversity. “Restrictive measures directed only to the defense of genetic patrimony are counterproductive and their inspection is complicated. The best mechanism for the protection of intellectual property is scientific and academic training. This for sure has the exponential capacity of production.”
While the new law does not come into effect, the government is searching to minimize the draconian character of the provisional measure by way of resolutions, such as that of No 18, published in 2003, which allows researchers access to the components of genetic patrimony up until that point vetoed by the legislation. This more flexible position, nevertheless, did not impede the publishing, on the 7th of last June, of Decree Nº 5,459 disciplining sanctions on activities detrimental to genetic patrimony forecast in the provisional law. In accordance with the decree, the following are considered infractions: access to genetic patrimony for research purposes without the authorization of the appropriate organ; the illegal remission of samples abroad; the omission of information concerning research activities, bio-prospecting or technological development related to biodiversity; and the non-sharing of benefits coming from the economic exploration of products developed starting from biodiversity resources or from associated traditional knowledge.
Exchange of practices
The member countries of the OTCA do not intend to set up common legislation. “Homogenization is impossible, but harmonizing is conceivable”, says the OTCA’s general secretary. The countries with the most advanced legislations can help. Also, it will be important that these affinities be present in the treaties on free trade, such as that which is being prepared by Colombia, Peru and Ecuador. If the initiative comes from a group of countries, it will be more effective.
The exchange of norms, practices and national policies, concerning the rights associated with intellectual property and national systems of innovation, head up the list of group actions that the eight countries want to implement and that will be presented at a meeting of Chancellors called by the OTCA, in the city of Iquitos, Peru.
The coordination of positions and the harmonization of norms will be a strategic measure. “An evolution of globalization is taking place. There is a trend towards centralization and the homogenization of norms on intellectual property dictated by the most active and developed countries”, analyzes Jaguaribe. The protection measures directed towards intellectual property in the developed countries continue, depending upon strict cooperation and the convergence of legislation, to be ‘an inevitable step’. “We must mirror ourselves on the example given by Europe, which has patent offices in group.”
Among the common measures to be adopted by the eight countries is one suggesting the creation and the valuing of Amazonian geographic brand names that add value to regional production. Products already exist on the global market, such as herb remedies and phytotherapeutic medicines, presented to the customer as being of Amazonian origin. “We want to avoid that,” explains president Jaguaribe. The idea is to create an indication of source, a kind of stamp much like that used to identify wines from the Vinhedo valley, coffee from the Cerrado or white rum from Minas Gerais. “After this we’ll establish a group of standardized norms”, adds the president of the INPI.
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