Background Paper
22. September, 2000
The selfish interpretation of the Convention on Biological Biodiversity by the
University of Lausanne, Switzerland
NGOs in Zimbabwe and Switzerland condemn the way by which the University of
Lausanne gained access to genetic resources in Zimbabwe and the way the benefit
sharing has been negotiated. They also reject the patent on antimicrobial diterpenes
which Prof. Hostettmann of Lausanne University took out on these resources and
which is based on traditional knowledge. This case is another example of how current
bioprospecting in southern countries contradicts the rules defined by the Convention
on Biological Diversity (CBD). “While the Swiss government supports guidelines for
Access and Benefit Sharing at the CBD, a Swiss University is engaged in illegal
bioprospecting activities in Zimbabwe”, says François Meienberg of the Swiss NGO
Berne Declaration.
On July 27, 1999, US-patent 5’929’124 on antimicrobial diterpenes was granted to Kurt
Hostettmann, professor at the University of Lausanne. The patented invention relies on
traditional knowledge from Zimbabwe and on the root of the tree "Swartzia
madagascariensis" that can be found throughout tropical Africa. Two years before, in April
1997, an addendum to a material transfer and confidentiality agreement between the
American pharmaceutical company Phytera and the University of Lausanne was signed,
under which Phytera received an option for an exclusive worldwide license and in return
agreed to pay royalties of 1.5% on the net sales of any product marketed under this license.
Professor Hostettmann, on the other hand, is obliged to give 50% of any royalties received
to the National Herbarium and the Botanical Garden of Zimbawe and to the Department of
Pharmacy at the University of Zimbabwe.
The aforementioned NGOs criticize the following aspects of this deal:
Neither the state of Zimbabwe, nor the traditional healers affected by the bioprospecting
have been correctly informed or have given their prior informed consent for the search of
genetic resources in Zimbabwe. The Convention on Biological Diversity, signed by
Zimbabwe and Switzerland, states that "access to genetic resources shall be subject to prior
informed consent (pic) of the contracting party providing such resources …". In Zimbabwe
the mandate and the authority to allow access to genetic resources lies with the Ministry of
Environment. But the Ministry never signed a contract with the Universitiy of Lausanne,
nor is there any contract which shifts the mandate from the Ministry to the University of
Zimbabwe, which helped the University of Lausanne to get access to the resources . The African
Model legislation for the regulation of access to biological resources states that the pic of
the state and the concerned local communities is needed. Part of the information requested
for the pic should be the economic, social, technical, biotechnological, scientific,
environmental, or any other benefits that are intended or may be likely to accrue and the
proposed mechanisms and arrangements for benefit sharing.
The concerned stakeholders (traditional healers, local communities, the state of Zimbabwe)
were not given any of this information before the University of Lausanne gained access to
genetic resources and traditional knowledge. “We have never given our consent to this deal”,
states Prof. G. Chavunduka of the Zimbabwe National Traditional Healers Association
(ZINATHA) which had submitted a number of samples of their medicines to the University
of Zimbabwe for analysis. “The idea was just to confirm the properties of this medicine
which traditional healers have been using for time immemorial.”
There have been no mutually agreed terms for a fair and equitable benefit sharing
mechanism. An agreement signed between the University of Zimbabwe and the University
of Lausanne stipulates that in the event of finding any product which may require the
application of intellectual property rights, this will be subject of joint negotiation and
application. Contrary to Article (F) of this agreement, as the Chairperson of the Pharmacy
Department indicated, the University of Zimbabwe did not take part in the negotiation
process between the University of Lausanne and Phytera. No one has consulted
stakeholders in Zimbabwe on whether they agree with the amount of royalties they are to
receive. Indeed, the amount negotiated between the University of Lausanne and Phytera is
very low compared to other benefit sharing agreements. The average range of royalties on
net sales for materials with value added data such as ethnobotanical information is 1–4%
(tenKate/Laird 1999), including exceptional cases of up to 50% (in a contract between the
Swiss Federal Institute of Technology and Venezuela). In the case of "Swartzia
madagascariensis", moreover, a low benefit sharing percentage must be shared with an
intermediary, the University of Lausanne.
A patent taken out on illegally accessed genetic resources should be declared invalid.
However, as patent offices do not consider the origin of patented materials, the current
patent regime in fact supports biopiracy. NGOs also request further analysis of whether
Professor Hofstettmann’s ‘invention’ actually fulfills the requirements for a patent (e.g.
novelty), or if it is largely based on illegally acquired traditional knowledge. “In this case,
the involved NGOs are willing to fight the patent at the US patent and trademark office”
states Andrew Mushita of the Community Technology and Development Association
(CTDA) in Zimbabwe.
A documentary telecast by Swiss television in June indicates that other bioprospecting
projects of Prof. Hostettmann (e.g. the search for a natural “Viagra” medicine on behalf of
the Swiss pharma giant Novartis) have also been carried out in violation of the CBD.
Phytera already made headlines in 1996, when - in an attempt to circumvent the
Biodiversity Convention - they proposed plant sampling contracts to botanical gardens in
the North without any provision for benefit-sharing with the countries of origin. Several
botanical gardens in Germany rejected such contracts.
Swiss and Zimbabwean NGOs demand that in the case at hand an access and benefit
sharing agreement be negotiated that fulfills the objectives of the Biodiversity Convention
and involves all the main stakeholders in Zimbabwe. The NGOs also demand that the
contract between the University of Lausanne and Phytera be cancelled and the patent
withdrawn.
For further information:
Andrew Mushita: CTDA, Tel: 00263 4 30 31 60; email: tactdtms@harare.iafrica.com
François Meienberg: Erklärung von Bern, Tel : 0041 1 277 70 04 ; email : food@evb.ch
Prof. G. Chavunduku: ZINATHA, Tel: 00263 4 77 28 80 or 00263 4 75 19 02