Governance and Micropolitics of Traditional ... - IPRsonline.org

that was investigated by WIPO and UNEP, where the people who conserved the valuable rice
strain (an displaced immigrant group called the Bela people) were not clearly understood as
the rightful ‘owners’, however the rice was considered a weed by many local Malian farmers.
In the plao noi case it is just as unclear how benefits could be appropriately shared back
(WIPO/UNEP, 2001).
There are further patents relating to Plao noi listed in the USPTO. The case which Dr
Hutacharern was probably referring to is the USPTO patent 5879916 which is assigned to the
Thailand Research Fund, a government research body. This patent is on a process for the
extraction of geranylgeraniol-18-hydroxylase from croton sublyratus (a plao noi variety) to
form plaunotol, the anti-ulcer medication patented under the Sankyo Company Ltd. Patent. As
this is a process patent, it does not restrict the use of plao noi in any way, but as described in
the patent documentation, this patent provides a ‘less cumbersome and more effective process
for the production of plaunotol’ (USPTO, Acc 21/02/2006). If a process patent does not
restrict the use of a plant, but only aids in the extraction, then should benefits be required to
flow back to traditional knowledge holders? It would be fairly problematic to expect this.
Although the patent references indicate the use of Plao noi as a medicinal plant with
traditional uses, a patent on the process of extraction arguably doesn’t interfere with the use of
the plant but may facilitate its broader use commercially. Does this affect the conservation of
the plant? It is possible, but the pathway between the conservation, sustainable use, and
application of traditional knowledge through to commercialisation is less clear than in other
cases because the patent is not on the use of the material itself.
USPTO Patent number 5,264,638, an older patent approved in 1993 (assigned to
Chulalongkorn University, Bangkok), also covers a ‘Process for extraction and purification of
plaunotol’. Again the patent claims only refer to processes for extraction and purification,
with no claims over chemical extracts. If these organisations wanted to apply socially
responsible practices to clear any uncertainty in the public’s mind, they could make some
form of compensation available, potentially to traditional healer’s networks who are actively
involved in the use and conservation of the plant.
Other Cases
Subcharoen (et al., 2001) also note that Thai patent number 008863 refers to a pharmaceutical
composition for AIDS and includes a Thai medicinal plant in the scope of the patent. A
similar US patent has apparently also been made by Japanese researchers referring to a
‘combination of medicinal plants used to treat the AIDS virus’ for which Thai medicinal
plants are suspected to be included. A number of the medicinal plants were mixed and dried
using modern technology and the source of traditional knowledge was only very broadly
specified (Subcharoen, Pennapa. et al, 2001). The only inventive steps relate to the drying
process and to the use of the medicinal plants to treat AIDS, where it had not formerly been
used as a treatment for this virus. The Industrial Property Information Centre of Thailand
however has no data available for a Thai Patent record no. 008863 and therefore these claims
could not be investigated further.
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