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THE TRAGEDY OF BIOPIRACY

BACKGROUND
The existing legal framework for intellectual property rights in the country today recognizes only the dominant industrial model of innovation. It has failed to recognize the more informal, communal system of innovation through which farmers and indigenous communities produce, select, improve, and breed a diversity of crop and livestock varieties a process which takes place over a long period of time [Juan M. Flavier]

DATA (2010)
60000 50000 Pfizer Novartis 40000 Merck & Co. Sanofi GlaxoSmithKline 30000 AstraZeneca Johnson & Johnson Eli Lilly & Co. 20000 Abbott Laboratories Bristol-Myers Squibb 10000

0 Pharmaceutical Firms

ANALYSIS
According to the World Bank, 68 of 192 countries in 2011, had a gross domestic product in excess of US$60,000 (in MillionsUS$). Just imagine the implication of that Pfizers revenue is equivalent to that of a countrys GDP. Interestingly, the Philippines ranked 44th in the World with a GDP of US$224,754 (in Millions US$).

IMPLICATIONS
It is also apparent that the pharmaceutical industry is a highly competitive one. Basic operational-research-theory, tells us that the best way to maintain competitive advantage in a competitive industry is through research and development ventures. And where do Pharmaceutical Firms get their inputs? Well, generally from the natural world or more particularly from places occupied by indigenous peoples.

LINKAGE
And heres where the problem lies when the interests of profit-making-individualistic corporate powers clash with those of traditionalsubsistence-and-communal living of indigenous peoples: the Tragedy of Biopiracy. Biopiracy the appropriation of the knowledge and genetic resources of farming and indigenous communities by individuals or institutions who seek exclusive monopoly over these resources and knowledge.

LEGAL LACUNA
R.A. 8293 (1997) defines patentable inventions as [a]ny technical solution of a problem in any field of human activity which is new, involves an inventive step and is industrially applicable It may be, or may relate to, a product, or process, or an improvement of any of the foregoing.

BRIEFLY ....
NOVELTY an invention shall not be considered new if it forms part of a prior art. Prior art (1) Everything which has been made available to the public anywhere in the world, before the filing date or the priority date of the application claiming the invention; and (2) The whole contents of an application for a patent, utility model, or industrial design registration, published in accordance with this Act, filed or effective in the Philippines, with a filing or priority date that is earlier than the filing or priority date of the application

INVOLVING AN INVENTIVE STEP an invention involves an inventive step if, having regard to prior art, it is not obvious to a person skilled in the art at the time of the filing date or priority date of the application claiming the invention. INDUSTRIALLY APPLICABLE an invention that can be produced and used in any industry shall be industrially applicable.

NON-PATENTABLE INVENTIONS
(1) Discoveries, scientific theories and mathematical methods; (2) Schemes, rules and methods of performing mental acts, playing games or doing business, and programs for computers; (3) Methods for treatment of the human or animal body by surgery or therapy and diagnostic methods practiced on the human or animal body.; (4) Plant varieties or animal breeds or essentially biological process for the production of plants or animals.; (5) Aesthetic creations; and (6) Anything which is contrary to public order or morality.

ARE LIFE FORMS PATENTABLE?


In Diamond v. Chakrabarty (447 U.S. 303 (1980)), the United States Supreme Court held that a humanmade, genetically engineered bacterium capable of breaking down crude oil a property which is possessed by no naturally occurring bacteria is patentable.
It reasoned that [w]hile laws of nature, physical phenomena, and abstract ideas are not patentable, (Chakrabartys patent) claim is not to a hitherto unknown natural phenomenon, but to a nonnaturally occurring manufacture or composition of matter - a product of human ingenuity having a distinctive name, character [and] use.

UPSHOTS OF THE DECISION


Pharmaceutical Firms and Agrochemical Companies exploited the Decision
[DIRECTLY] by taking plants back to the laboratory and extract their active ingredient and claim it as their own invention; or [INDIRECTLY] by increasing the potency of the active ingredient, thus scientifically enhancing the plant by showing that the new compound displays unexpectedly improved properties that entitle it to patent protections.

ALLUSION OF THE DECISION


Indigenous Peoples cannot requirements of patent law meet the
(1) they fail to meet the novelty requirement because of the difficulty in identifying an original inventor because the whole tribe possesses the knowledge. (2) they fail the non-obviousness test because traditional cultivation practices are considered unscientific due to their process of exchanging information that has an oral tradition and is often undocumented while the scientific extraction of genes is patentable. (3) they fail the usefulness requirement because they do not make a profit from the use of their plants and knowledge.

DOUBLE STANDARDS
Patents and intellectual property rights are supposed to prevent piracy instead they are becoming the instruments of pirating the common traditional knowledge. The core of Biopiracy thus appears to be not the availability of patents based on traditional indigenous information but rather to the unfair acquisition of such knowledge.

SOCIAL JUSTICE
Where problem surfaces, conflict is not far off the shore. And where conflict lies, the law comes-in to set the limits and render justice to the parties. As aptly stated by Justice Isagani Cruz, social justice or any justice for that matter is for the deserving, whether he be a millionaire in his mansion or a pauper in his hovel for justice must always be served, for poor and rich alike, according to the mandate of the law.

Examples
Lagundi (used by the Ifugao)

Examples
Sambong Patent No. 1-1997-57575: Sambong Tablet: Herbal Composition and Uses Thereof (diuretic and for kidney stone dissolution)

PASCUAL LABORATORIES, INC.: THE PIONEER LICENSEE, RISK-TAKER, AND NOW THE MARKET LEADER

Technologies Licensed: Lagundi Tablet, Lagundi Pediatric Syrup, Sambong Tablet, Akapulko Lotion First license issued in November 1995 for Lagundi and Sambong tablet and in 1999 for Lagundi Pediatric Syrup Trademarks: Ascof (for Lagundi)

Examples
Akapulko (Ifugao, crushed leaves for scabies) Akapulko Lotion as Antifungal

Indias Successes
In 1995, the US Patent Office granted Patent Number 5,401,504 to an American university medical center for the use of turmeric in wound healing. An Indian scientist, Dr. R.A. Mashelkar, challenged the patent, showing documents written in their native language, Sanskrit, which showed that Indians have been using turmeric for centuries. After two years of legal battle, India won the case and the patent was declared void. In 2004, India won a 10-year battle on biopiracy when the European Patent office revoked a patent granted to a company that used a fungicidal product derived from the neem, a tree native to India.

SOLUTIONS

CONSTITUTIONAL BASIS
22, Art. II, 1987 Constitution
recognize and promote the rights of indigenous cultural communities within the framework of national unity and development

17, Art. XIV, 1987 Constitution


recognize, respect and protect the rights of indigenous cultural communities to preserve and develop their cultures, traditions and institutions. It shall consider these rights in the formulation of national plans and policies

DOMESTIC LAWS

Indigenous Peoples' Rights Act (IPRA, Republic Act 8371)


Sec. 32. Community Intellectual Rights ICCs/IPs

have the right to practice and revitalize their own cultural traditions and customs.

The State shall preserve, protect and develop the past, present and future manifestations of their cultures as well as the right to the restitution of cultural, intellectual, religious, and spiritual property taken without their free and prior informed consent or in violation of their laws, traditions and customs.

Indigenous Peoples' Rights Act (IPRA, Republic Act 8371)


Sec. 34. Right to Indigenous Knowledge Systems and

Practices and to Develop own Sciences and Technologies ICCs/IPs are entitled to the recognition of the full ownership and control and protection of their cultural and intellectual rights.

They shall have the right to special measures to control, develop and protect their sciences, technologies and cultural manifestations, including human and other genetic resources, seeds, including derivatives of these resources, traditional medicines and health practices, vital medicinal plants, animals and minerals, indigenous knowledge systems and practices, knowledge of the properties of flora and fauna, oral traditions, literature, designs, and visual and performing arts.

Tribal Botika
BukidnonDaraghuyan tribal community

found within their ancestral domain in the vicinity of Mt. Kitanglad Range Natural Park, Malaybalay City, Bukidnon, Philippines

National Cultural Heritage Act (Republic Act 10066)


Sec. 21. Indigenous Properties. The appropriate cultural agency, in consultation with the National Commission on Indigenous Peoples, shall establish a program and promulgate regulations to assist indigenous people in preserving their particular cultural and historical properties.

Wildlife Act (RA 9147)


Sec.14 Bioprospecting The Secretary xxx...before granting the necessary permit, shall require that prior informed consent be obtained by the applicant from the concerned indigenous cultural communities. xxx...The prior informed consent from indigenous peoples shall be obtained in accordance with existing laws.

Traditional and Alternative Medicine Act (RA 8423)


Sec. 2 Declaration of Policy It shall also be the policy of the State to seek a legally workable basis by which indigenous societies would own their knowledge of traditional medicine. When such knowledge is used by outsiders, the indigenous societies can require the permitted users to acknowledge its source and can demand a share of any financial return that may come from its authorized commercial use.

Traditional and Alternative Medicine Act (RA 8423 Implementing Rules and Regulations, Rule IX)
Sec. 3 DOCUMENTATION OF IKS on TRADITIONAL AND ALTERNATIVE HEALTH CARE

The Board shall endeavor to develop workable mechanisms, in accordance with the customary practices of the place, for the identification and documentation of indigenous knowledge systems relevant to the utilization of biological and genetic resources that are applied in traditional and alternative health care practices of the community

Traditional and Alternative Medicine Act (RA 8423, Implementing Rules and Regulations, Rule IX)
Sec. 4 INTELLECTUAL PROPERTY RIGHTS The Institute shall endeavor to monitor and inventory Philippine natural health products that have been inappropriately applied for IPR protection in the Philippines and abroad without complying with applicable laws and regulations And shall make representations with the appropriate international institutions with the assistance of other institutions and agencies of the Government of the Philippines to cancel these rights or to renegotiate the terms and conditions thereof that are favorable to Philippine interests

Traditional and Alternative Medicine Act (RA 8423, Implementing Rules and Regulations, Rule IX)
Sec. 4 INTELLECTUAL PROPERTY RIGHTS The application of existing forms of intellectual property rights on biological and genetic resources as well as indigenous knowledge systems shall be without prejudice to the application of whatever sui generis rights that may be provided by law to the appropriate local and indigenous communities. The Board or other appropriate governmental bodies shall also intervene, whenever it becomes necessary for the protection of the general welfare of the communities involved, to protect and ensure the rights of the communities during the negotiations for benefit sharing.

Plant Variety Protection Act (RA 9168)


Section 43. Exceptions to Plant Variety Protection. - The Certificate of Plant Variety Protection shall not extend to: d) The traditional right of small farmers to save, use, exchange, share or sell their farm produce of a variety protected under this Act, except when a sale is for the purpose of reproduction under a commercial marketing agreement. The Board shall determine the condition under which this exception shall apply, taking into consideration the nature of the plant cultivated, grown or sown. This provision shall also extend to the exchange and sell of seeds among and between said small farmers: Provided, That the small farmers may exchange or sell seeds for reproduction and replanting in their own land.

Intellectual Property Code (RA 8293)


Sec. 22.4 Exceptions to Patentability

Provisions under this subsection shall not preclude Congress to consider the enactment of a law providing sui generis protection of plant varieties and animal breeds and a system of community intellectual rights protection.

Magna Carta of Women (RA 9710)


Sec. 28- Recognition and Preservation of Cultural Identity and Integrity

- The State shall recognize and respect the rights of Moro and indigenous women to practice, promote, protect, and preserve their own culture, traditions, and institutions and to consider these rights in the formulation and implementation of national policies and programs. To this end, the State shall adopt measures in consultation with the sectors concerned to protect their rights to their indigenous knowledge systems and practices, traditional livelihood, and other manifestations of their cultures and ways of life: Provided, That these cultural systems and practices are not discriminatory to women.

IRR of Technology Transfer Act (RA


10055), Rule 12, sec. 3
Sec. 3 (c)(i) Disclosures

- The RDI shall provide the GFA with a written disclosure on the following: (1) any biodiversity, genetic resources or materials, associated TK, and IKSP utilized in or which formed as basis in the development of the subject matter contained in the IPR application; (2) the primary source of any biodiversity, genetic resources or materials, associated TK,and IKSP utilized in or which formed as basis in the subject matter contained in the application; or (3) the secondary source, if no information on the primacy source is available.

Unfortunately
Community ownership of TK have not yet been operationalized into feasible and workable implementing mechanisms. In essence, only the legal measures protecting TK from use, i.e., regulations on access to biological and genetic resources and the policy of prior informed consent, have been enforced and observed.

Documenting and Registering


For plant genetic resources, the Department of Agriculture launched the National Network on the Conservation and Sustainable Use of Plant and Genetic Resources to establish a national system for the collection, conservation, evaluation, and documentation of plant genetic resources important to the Philippines.

Documenting and Registering


The National Museum keeps a national inventory for cultural products and heritage, and the Philippine Intellectual Property Office for inventions, industrial designs, and utility models. For traditional medicines, the Philippine Institute of Traditional and Alternative Health Care is maintaining a database of different traditional and alternative health care materials and products available from the Philippines

Other Initiatives
During the 12th Congress, then Senator Juan M. Flavier submitted a bill entitled Community Intellectual Property Rights Act, for congressional deliberations which aim, among others, to specifically address the lacuna in the intellectual property rights regarding the protection of communal intellectual property rights. Unfortunately, the bill has not been passed by that (or any other) Congress, and so up to this very date, the communal intellectual property rights are still vulnerable to exploitation from moneymaking bio-prospectors.

Other Initiatives
Drawing inspiration from Indias victory, nine local groups are currently establishing the Philippines own Traditional Knowledge Digital Library on health that would document local medicinal plants used by traditional healers or "arbularios."

The experts forming the systematic documentation of the countrys medicinal plants belong to the Philippine Council for Health Research and Development of the Department of Science and Technology, Philippine Institute of Traditional and Alternative Health Care, University of the Philippines, Protected Areas and Wildlife Bureau, Intellectual Property Office, National Commission on Indigenous Peoples, Botany Division of the National Museum, Conservation International, and National Integrated Research Program on Medicinal Plants (NIRPROMP).

The countrys problem lies in having only oral traditions to support its knowledge on medicinal plants since Filipino ancestors were not too keen on writing about the uses of native medicinal plants. Dr. Isidro C. Sia, program manager of NIRPROMP

International Instruments

1. UN Declaration on the Rights of Indigenous Peoples (UNDRIP)


Indigenous peoples have the right to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions, as well as the manifestations of their sciences, technologies and cultures, including human and genetic resources, seeds, medicines, knowledge of the properties of fauna and flora, oral traditions, literatures, designs, sports and traditional games and visual and performing arts. They also have the right to maintain, control, protect and develop their intellectual property over such cultural heritage, traditional knowledge, and traditional cultural expressions.

1. UN Declaration on the Rights of Indigenous Peoples (UNDRIP)


They also have the right to maintain, control, protect and develop their intellectual property over such cultural heritage, traditional knowledge, and traditional cultural expressions.

2. WTO-TRIPS Agreement (Art. 27.3[b])


There are three permissible exceptions to the basic rule on patentability. 1. Inventions contrary to public order or morality; 2. Diagnostic, therapeutic and surgical methods for the treatment of humans or animals.

2. WTO-TRIPS Agreement (art. 27.3[b])


The third is that Members may exclude plants and animals other than micro-organisms and essentially biological processes for the production of plants or animals other than non-biological and microbiological processes.

2. WTO-TRIPS Agreement (art. 27.3[b])


However, any country excluding plant varieties from patent protection must provide an effective sui generis system of protection. Moreover, the whole provision is subject to review four years after entry into force of the Agreement (Article 27.3(b)).

3. Convention on Biological Diversity - Nagoya Protocol on Access and Benefit Sharing

Aims at sharing the benefits arising from the utilization of genetic resources in a fair and equitable way, including by appropriate access to genetic resources and by appropriate transfer of relevant technologies, taking into account all rights over those resources and to technologies, and by appropriate funding, thereby contributing to the conservation of biological diversity and the sustainable use of its components.

4. WIPO Intergovernmental Committee on Intellectual Property


and Genetic Resources, Traditional Knowledge and Folklore

1. Traditional knowledge; 2. Genetic resources; 3. Traditional cultural expressions or expressions of folklore

4. WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore

Are economic and cultural assets of indigenous and local communities and their countries.

4. WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore

WIPO's work addresses the role that intellectual property principles and systems can play in protecting traditional knowledge and traditional cultural expressions from misappropriation, and in generating and equitably sharing benefits from their commercialization and the role of IP in access to and benefit-sharing in genetic resources.

5. Intl Convention on the Elimination of All Forms of Racial Discrimination (ICERD)


The Committee is conscious of the fact that in many regions of the world indigenous peoples have been, and are still being, discriminated against and deprived of their human rights and fundamental freedoms and in particular that they have lost their land and resources to colonists, commercial companies and State enterprises. Consequently, the preservation of their culture and their historical identity has been and still is jeopardized.

5. Intl Convention on the Elimination of All Forms of Racial Discrimination (ICERD)

In this respect, the Committee has consistently affirmed that discrimination against indigenous peoples falls under the scope of the Convention and that all appropriate means must be taken to combat and eliminate such discrimination.

Conclusion
The promise of a just and reasonable reward in exchange for an individuals effort is central and paramount to the claim of biopiracy. How will customary law principles apply to nonindigenous peoples? How about extra-territorially? How do we expand principles on legal pluralism, whereby customary law of indigenous peoples coexist with existing rules in civil law, political law, etc.

Conclusion
For a third-world-nation, in a globalized world, (like the Philippines) copying a law of westernorigin may be a good (initial) way to pave the way for greater and more stable economic prosperity but never must it be a scapegoat to treat our Indigenous Peoples in an abysmal way: slowly letting them rot to obscurity.