BIOPIRACY Imitations Not Innovations - Biopirateria

14 Biopiracy: Imitations Not Innovations
The Ayahuasca Patent
Inspired by India’s success with the challenge to the turmeric patent, a
challenge was launched made against the ayahuasca patent. For generations,
shamans of indigenous tribes throughout the Amazon basin have processed
the bark of Banisteriopsis caapi to produce a ceremonial drink known as
“ayahuasca”. The shamans use ayahuasca (which means “vine of the soul”)
in religious and healing ceremonies to diagnose and treat illnesses, meet
with spirits and divine the future. An American, Loren Miller, obtained US
Plant Patent 5,751 in June 1986, granting him rights over an alleged
variety of B.caapi he called “Da Vine”. The patent description stated that
the “plant was discovered growing in a domestic garden in the Amazon
rain-forest of South America”. The patentee claimed that Da Vine represented
a new and distinct variety of B.caapi, primarily because of the flower colour.
The Coordinating Body of Indigenous Organizations of the Amazon
Basin (COICA) & an umbrella organization representing over 400 indigenous
groups&learned of the patent in 1994. COICA objected to the patent
because it purported to appropriate for a US citizen a plant that is sacred
to many indigenous peoples of the Amazon, used by them in religious and
healing ceremonies. On their behalf the Center for International
Environmental Law (CIEL) filed a re-examination request of the patent
with the US Patent and Trademark Office. CIEL protested that a review of
the prior art showed that Da Vine was neither new nor distinct. They
argued that granting the patent would be contrary to the public morality
aspects of the Patent Act because of the sacred nature of Banisteriopsis caapi
throughout the Amazon region. CIEL demonstrated that this knowledge
was already known and in November 1999, the USPTO rejected the patent
claim, agreeing that Da Vine was not distinguishable from the evidence of
prior art presented by CIEL and the patent should never have been issued.
The USPTO accepted the petitioners’ arguments that the claimed plant
variety was not distinctive or novel, but did not acknowledge the argument
that the plant’s religious value warranted an exception from patenting. It
made its decision “final” in an office action dated April 14, 2000.
Though the rejection represented a victory for indigenous knowledge,
the rejection itself was made on the narrowest legal ground under the
statutory bar of section 102 (b) of the US Patent Law. This section of the
US Patent Law prohibits the issuance of a patent when the invention was
patented or described in a printed publication more than one year prior to
the date of patent application. Thus, the historical use of the Ayahuasca
tree was not acknowledged as prior art by the USPTO. Due to this legal
technicality, Loren Miller appealed successfully and in early 2001, the
USPTO went against its earlier decision and decided that the patent for the
Da Vine variety of Ayahuasca was valid. The ‘ayahuasca patent’ expired on
17 June, 2003.