Hannah Scutt
Biopiracy: A Defence
By Hannah Scutt
hls6@kent.ac.uk
Intellectual Property Dissertation
LW 556
2004 - 2005
Convenor: Alan Story
Word Count: 4,980
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Hannah Scutt
Abstract
Tales of biopiracy are evocative and make for a convincing argument against the
patenting of plant properties, however, we must look beyond this wide spread and
popular assumption that the patent system is merely greedy and monopolistic. The
patent system could be said to be both these things and to a certain extent it is true,
patents do create monopolies, but to qualify this there are limitations and good reason
behind them as will be explored.
Greed has become an emblem of twenty-first century Western society, but this is not
to say that it dictates every aspect of life, although it does inevitably feature in
intellectual property rights. Despite this it could be is argued that the majority of
pharmaceutical companies that patent plant properties of indigenous peoples main
incentives are to discover, develop and advance new means of helping society combat
disease and improve their standards of living. The patent system merely provides the
practical and financial arena and means in which for this to be achieved.
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Hannah Scutt
What is Biopiracy?
Biopiracy has been heralded as the “patenting of biological resources with no
respect…”1 It is viewed by some as the “appropriation and monopolisation of
traditional populations knowledge and biological resources”.2
This aggressive
terminology and description is a very biased opinion and one that is not well
informed.
"Biopirates" sound sinister, but there must be another side to the picture painted by
the majority of the media. It is understandable why people see the patenting of plant
properties as harsh and dominated by large, faceless multinationals, given the
propaganda. When the issue was brought to the forefront in 1984, even a “European
Commission official with excellent scientific background was shocked enough to
remark that ‘it must surely be wrong to allow a patent on bread!’”3 However, the idea
of patenting processes and products is not a new phenomenon created simply to fill
the pockets of men in suits and aid industrialisation.
Philosophical Justifications
Historically intellectual property rights have been viewed almost as a divine right, if
you invest time, money and skill in inventing a process or product you should benefit
and reap the rewards. This is based on the concept that people are “entitled to the
fruits of their labour, produced by their own intelligence, effort and perseverance”.4
This is a theory, even an ideology that has survived and perhaps strengthened
1
www.wordlookup.net/bi/biopiracy.html
Ethical Boundaries - http://www.amozonlink.org/biopiracy/
3
Crespi, ‘Biotechnology Patenting: The Wicked Animal Must Defend Itself’ [1995] 9 EIPR 431 –
page 1
2
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Hannah Scutt
throughout different times and cultures. Even at school those who do the best work
get the gold star! “Intellectual property is native to all peoples, relevant in all times
and cultures, and … it has marked the worlds evolution and historically contributed to
the progress of societies. Intellectual Property is the heritage of us all”.5
Locke stated two provisos on Intellectual Property rights, firstly that there is to be no
loss to others and secondly that what is protected by the system must be used,
otherwise it would be wasteful.6 The patent system complies with both these criteria.
Patents are the longest standing form of intellectual property protection 7, suggesting
that it is a solid method of protection, highlighted by the fact that it meets both the
criteria stated by Locke. The idea of there being ‘no loss to others’ is tricky as
essentially a patent removes the right from someone else to copy your product.
Novick suggests, however, that this is curbed by the time limits imposed on patents,
which are twenty years from the point of filing the application. 8 The patent system is
also very effective in ensuring that intellectual property rights are used. They ensure
'use' on two levels. On a practical level to have something patented it must be capable
of industrial application, under s.1(c) Patent Act 1977. It cannot be just a theory, it
must be a product or process that can be put into practice and be used. The other
benefit of the patent system in this area is that there is a duty to disclose information,
putting information into the public domain, giving the patent an effective purpose.
Moore, ‘Intellectual Property – Moral, Legal and International Dilemmas’ – page 21
‘Intellectual Property: A Power Tool for Economic Growth’ - http://wipo.int/aboutwipo/en/dgo/wipo_pub_888/pdf/wipo_pub_888_chapter1.pdf
6
Moore, ‘Intellectual Property – Moral, Legal and International Dilemmas’ – page 22
7
Holyoak and Torremans, ‘Intellectual Property Law’ 2 nd ed. Butterworths [1998] – page 27
8
Moore, ‘Intellectual Property – Moral, Legal and International Dilemmas’ – page 22
4
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Hannah Scutt
In conjunction with the benefits it presents, the basic utilitarian justification for the
patent system is that it provides incentives to ‘promote the progress of science’.9
Patents seek to protect your time and economic investment into your product by
protecting it from being exploited by others benefiting from your investment of time,
money and labour. Locke suggests that labour creates 99% of the products value,10
this may well be an exaggeration however it emphasises the point that peoples efforts
should be protected and therefore rewarded.
Intellectual Property rights protect
innovation and creations and reward innovative and creative activity”. 11 The patent
system is a reward system as society has a “moral obligation to compensate and to
reward the inventors”.12 To suggest that the patent system is purely for economic
protection and does not provide any incentive to invent would be wrong, as these two
things go hand in hand, as Abraham Lincoln stated, “The patent system added the fuel
of interest to the fire of genius”.13
Dan Eramian, of the Biotechnology Industry Organisation, however, takes it a step
further, highlighting the importance of intellectual property rights and the emotive
nature of the topic, stating, “ a fundamental message about patents I would like you to
remember: patents…save…lives”.14
Within the patent system, particularly within the area of biotechnology the main
concern is exploitation, however there is very strict criteria that needs to be met
before a patent is even granted. “Patents are only granted when the invention meets
Moore, ‘Intellectual Property – Moral, Legal and International Dilemmas’ – page 30
Moore, ‘Intellectual Property – Moral, Legal and International Dilemmas’ – page 22
11
Holyoak and Torremans, ‘Intellectual Property Law’ 2 nd ed. Butterworths [1998] – page 12
12
Holyoak and Torremans, ‘Intellectual Property Law’ 2 nd ed. Butterworths [1998] – page 22
13
‘Intellectual Property: A Power Tool for Economic Growth’ - http://wipo.int/aboutwipo/en/dgo/wipo_pub_888/pdf/wipo_pub_888_chapter4.pdf
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Hannah Scutt
the strict requirements for patentability; generally that the invention must be ‘new,
useful and non-obvious’. A patents is not granted simply because of hard work or
large amounts of capital…the invention cannot be merely theoretical, but must be
practically ‘do-able’”.15 Looking at the patent system, with its focus on incentive to
development, it appears to go hand in hand with the idea that “The scientific
exploration of nature benefits mankind through discoveries concerning animate and
inanimate matter. Where such discoveries are the basis of inventions, which can be
developed into industrial processes and products there is no reason in law or of
principle to deny patent protection for such inventions. The living nature of the
materials involved imposes no general restrictions on what may be patented.”16
The term ‘biopiracy’ insinuates that pharmaceutical companies are depriving
indigenous societies of the benefits of the plant properties within their own
environments, however this is not the case, as seen in the example of the Neem Tree.
The Neem Tree originated in India and was found to contain Azadirachtin, an active
compound that has remarkable properties, allowing it to be used for a number of
ailments. This property had been utilised by local Indian communities for centuries.
A US pharmaceutical company, W.R. Grace, researched the properties in the Neem
Tree and then subsequently had their work patented. Despite the furore surrounding
this what was essentially patented were their particular “extraction processes,
formulated products and synthetic derivatives”.17 Shiva described this situation as
‘intellectual piracy’, ‘expropriation of indigenous experimentation’ and the
14
http://www.bio.org/speeches/20040624.asp
‘Intellectual Property: A Power Tool for Economic Growth’ - http://wipo.int/aboutwipo/en/dgo/wipo_pub_888/pdf/wipo_pub_888_chapter4.pdf
16
Crespi, ‘Biotechnology Patenting: The Wicked Animal Must Defend Itself’ [1995] 9 EIPR 431page 11
15
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Hannah Scutt
‘controlling (of) access to raw materials…(by) multinational companies’18, trying to
make the situation emotive, but clearly as in the majority of cases the original source
material remains “unharmed and available to fulfil its original purpose.”19 The patent
is merely there as a means in which to benefit wider society, without disturbing the
local society from which the plant properties derived.
Essentially, to abate the
majority of fears, “The patents do not mean that people will be outlawed from using
their trees, or plants…”20 In order for a patent to be granted, there must be a new and
inventive product or process, in the case of patenting plant properties and processes
pharmaceutical companies are simply, “using existing living… material as a
springboard for the particular innovation”.21
The Patent Act 1977 clearly states in section 1(3)(a) that “a patent shall not be granted
for an invention the commercial exploitation of which would be contrary to public
policy or morality”.22 Morality was introduced into the patent system in the European
Patent Convention in 1973, Article 53(a)23 and subsequently interpreted into the
Patent Act 1977. Therefore this grants indigenous people protection from simply
‘stealing’ their plant properties they have used for hundreds of years. “The patent
system is designed to strike the proper balance between the inventors interest and the
public interest”.24
Crespi, ‘Biotechnology Patenting: The Wicked Animal Must Defend Itself’ [1995] 9 EIPR 431 –
page 7
18
ibid.
19
Crespi, ‘Biotechnology Patenting: The Wicked Animal Must Defend Itself’ [1995] 9 EIPR 431page 8
20
Vidal, The Guardian, ‘Can you really patent a tree?’ [1999]
21
Crespi, ‘Biotechnology Patenting: The Wicked Animal Must Defend Itself’ [1995] 9 EIPR 431 –
page 11
22
Blackstone’s Statutes on Intellectual Property, 7th ed.[2004] – Patents Act 1977
23
Drahos, ‘Biotechnology Patents, Markets and Morality’ [1999] EIPR 441
17
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As Holyoak and Torremans eloquently stated, “… different interest groups shape the
(patent) system, consumer wants new products, so grants patents readily, but not at
any price – so restricts the scope of the monopoly. Business wants advantage of
monopoly reward, but not at any price, so insist on public disclosure as its price.
Society want increased trade and wealth, but not at any price, hence various
restrictions and limitations”.25
Traditional historical approaches towards intellectual property have been taken and
reproduced in the form of the Patent Act 1977. The modern patent system is designed
to strike a balance between different parties’ needs. It provides a form of security for
the inventors and investors efforts by creating a limited and controlled monopoly in
order for the product to become marketable and profitable, in order for them to justify
the investment and expenditure.
Economic Justifications
Money does, rightly or wrongly, drive society and this monetary advantage created by
the patent system does act as a great incentive. Richard Stallman has suggested that
“The idea of “biopiracy” offers the multinationals, and the governments that work for
them, an easy way to cement forever their regime of monopolies”.26 This simply is
not true, monopolies are granted for a small period of time, a period of just twenty
years. What the patenting of plant properties actually does is enable small companies
to get a foothold in the market. Instead of a real monopoly taking place, by the largest
multinational pharmaceuticals, such as Pfizer, for whom it would be easy to dominate
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24
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Hannah Scutt
if the patent system did not exist, as there would be no opportunity for the smaller
companies, the patent system in fact restricts such monopolies. In creating restricted
monopolies, true monopolies, which would be disadvantageous to society do not
exist.
So in creating controlled, time-limited monopolies the patent system is
simultaneously protecting society and the economy from strong, damaging
monopolies.
It has been suggested that we, “should not see Intellectual Property rights as
monopolies”, but as a component “needed for (the) economy to flourish”.27
Particularly within the pharmaceutical industry it is debatable how much of a
monopoly the patent system actually provides. Patents run from the date of filing,
which therefore runs throughout “the lengthy research and development period, and
often only 5 – 8 years of the patent remains once the product is marketed,”28 due to
rigorous safety checks and so forth.
A real concern is that without Intellectual Property rights no one would invest in
innovation or creation, unless no other solution was available. Put practically, in
society, particularly in the field of pharmaceuticals and drugs there would be very
limited development and research taking place, as to do the necessary research and
development of drugs costs money.
Without patent protection development
companies would be at a very real disadvantage competitively, which is not a good
thing for a competitive free market economy.29 Intellectual property rights are very
important for the promotion and encouragement of private investment into research
Holyoak and Torremans, ‘Intellectual Property Law’ 2 nd ed. Butterworths [1998] – page 41
Stallman, ‘Biopiracy or Bioprivateering’ [2001] – www.stallman.org/articles/biopiracy.html
27
Holyoak and Torremans, ‘Intellectual Property Law’ 2 nd ed. Butterworths [1998] – page 16
28
‘Corporate Responsibility’ - http://www.gsk.com/index.htm
25
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and development, as it makes it worthwhile. They provide a form of guarantee,
increasing the chance of costs being covered, which are particularly high in the area
of pharmaceuticals. Costs are high because on average only 3 out of every 10,000
compounds discovered and tested will be developed into a medicine deemed suitable
for the market place30. Therefore there needs to be some sort of guarantee for those
products that do succeed. Indeed the Organisation for Economic Cooperation and
Development support this suggesting a, “strong correlation between the level of
research and development expenditure and the level of patenting activity”31.
There are three ways in which the patent system presents ways in which the inventor
can make financial gains. Firstly it provides a time in which your product cannot be
copied and therefore allows time to recoup costs. Secondly it allows your product to
be the first onto the market place, meaning two things, that you are more likely to
make a profit and also that profit is likely to continue as you are viewed by the
consumer as the ‘first’ producer, and therefore the ‘best’. Thirdly once you have a
product or process patented you have the ability to gain revenues from licensing or
even assigning it to those who can exploit it fully.32 This demonstrates how the
inventors’ reward is not simply self-satisfaction in the knowledge that they have
invented something, but with the patent system it provides financial rewards, making
their inventions possible.
Such financial rewards are beneficial, as motivation,
encouraging investment into new research and development, driving the process
Holyoak and Torremans, ‘Intellectual Property Law’ 2 nd ed. Butterworths [1998] – page 12
‘Corporate Responsibility’ - http://www.gsk.com/index.htm
31
‘Intellectual Property: A Power Tool for Economic Growth’ - http://wipo.int/aboutwipo/en/dgo/wipo_pub_888/pdf/wipo_pub_888_chapter2.pdf
32
‘Intellectual Property: A Power Tool for Economic Growth’ - http://wipo.int/aboutwipo/en/dgo/wipo_pub_888/pdf/wipo_pub_888_chapter4.pdf
29
30
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forward into a “dynamic cycle”33. This keeps up the momentum of inventing new
products. The patent system gives the inventor, “temporary shelter from the forces of
market competition,”34 and it has been suggested that, “A society that provides no
legal shelter for its inventors is likely to have a weak economy”. 35 This is perhaps
because as stated in ‘Intellectual Property: A Power Tool for Economic Growth,’
Intellectual Property has an “economically empowering force”.36
In fact Romer
concluded that a way in which countries can promote economic growth, is through
designing their economic policies to, “encourage investment in new research…”.37
This influence on the economy is also reflected in the “increasing contribution of
knowledge-intensive industries to Gross National Product”.38 For example in the
United States of America in 1995 knowledge intensive industries accounted for 27%
of the Gross National Product,39 demonstrating that “patents are a powerful tool for
economic development”.40
Interestingly patents and other intellectual property rights are not just a beneficial tool
for economic development of the developed countries, such as America and the UK,
but W. Lesser of Cornell University has found “compelling evidence” that Intellectual
Property rights provide benefits for developing nations as well.41 Developing nations
are particularly important when referring to the patenting of plant properties as
‘Intellectual Property: A Power Tool for Economic Growth’ - http://wipo.int/aboutwipo/en/dgo/wipo_pub_888/pdf/wipo_pub_888_chapter4.pdf
34
ibid.
35
ibid.
36
‘Intellectual Property: A Power Tool for Economic Growth’ - http://wipo.int/aboutwipo/en/dgo/wipo_pub_888/pdf/wipo_pub_888_chapter1.pdf
37
‘Intellectual Property: A Power Tool for Economic Growth’ - http://wipo.int/aboutwipo/en/dgo/wipo_pub_888/pdf/wipo_pub_888_chapter2.pdf
38
ibid.
39
ibid.
40
‘Intellectual Property: A Power Tool for Economic Growth’ - http://wipo.int/aboutwipo/en/dgo/wipo_pub_888/pdf/wipo_pub_888_chapter4.pdf
41
‘Intellectual Property: A Power Tool for Economic Growth’ - http://wipo.int/aboutwipo/en/dgo/wipo_pub_888/pdf/wipo_pub_888_chapter2.pdf
33
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developing nations are “undoubtedly a rich source of natural medicines, insecticides
and other bioactive substances,”42 and therefore the focus of criticism is directed at
developed countries exploiting the developing world.
Nevertheless, intellectual
property has the ability to “contribute positively to a country’s efforts to attract
foreign trade and provide the necessary conditions for transfer of technology,” 43 in
turn stimulating economic growth. This can be seen clearly in Japan, where the “rate
of technological development since 1945 can significantly…be associated with
Intellectual Property and in particular the patent system”.44 The system has been used
to great effect in the ‘catching-up’ process.
The introduction of patent protection leads to a clear increase in industrial production,
as can be seen in 18th Century Britain.45 Those countries with a high level of patent
protection have a high rate of industrial production.46 The success of the Spanish,
Italian and Swiss pharmaceutical industries when they had no patent protection does
not prove contrary to this, as no new products emerged during this time, their success
was based on imitations. This situation only improved once patent protection was
introduced,47 which is a testament to the benefits of patenting products and processes.
This emphasises the fact that intellectual property protection “plays a catalytic role in
stimulating research and development,”48 and subsequently the opportunity for
inventions to be made.
Research and development is expensive, if there is no
financial guarantee there will be under-investment, resulting in the reliance on
Crespi, ‘Biotechnology Patenting: The Wicked Animal Must Defend Itself’ [1995] 9 EIPR 431 –
page 7
43
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44
ibid.
45
Holyoak and Torremans, ‘Intellectual Property Law’ 2 nd ed. Butterworths [1998] – page 16
46
ibid.
47
Holyoak and Torremans, ‘Intellectual Property Law’ 2 nd ed. Butterworths [1998] – page 21
42
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innovation rather than invention, restricting development massively. Industry will not
want to take a risk at the expense of shareholders dividends and directors fees, 49 some
say this may be a cynical view, but it is simply a realistic one, as Andrew Sullivan
states, drug companies are, “entrepreneurs trying to make money saving lives”. 50 As
Dr Mark Wainberg puts it, “What possible incentive could exist for further investment
in this area if pharmaceutical companies understood in advance that they would never
enjoy patent protection for products that had cost tens of millions of dollars to
develop.”51 The answer is that there would be no incentive to invest and so there
would be minimal research and development, leading to little improvement in society.
To disregard and remove the patent system would be to disadvantage society as a
whole.
Economist, Joan Robinson, states, “A patent is a device to prevent the diffusion of
new methods before the original investor has recovered profits adequate to induce the
requisite investment”.52 Developing new drugs is an expensive business, as any
revenues made need to cover both the research for that particular drug, plus all the
ones which fail, which far outweigh the ones that do become marketable, so
intellectual property protection has “ a sound basis in economic logic”.53
‘Intellectual Property: A Power Tool for Economic Growth’ - http://wipo.int/aboutwipo/en/dgo/wipo_pub_888/pdf/wipo_pub_888_chapter2.pdf
49
Holyoak and Torremans, ‘Intellectual Property Law’ 2 nd ed. Butterworths [1998] – page 37
50
Sullivan, ‘What Others Are Saying’ [2002] –
http://innovation.phrma.org/others/more_innomed.phtml
51
Wainberg, ‘What Others Are Saying’ [2002] –
http://innovation.phrma.org/others/more_innomed.phtml
52
Moore, ‘Intellectual Property – Moral, Legal and International Dilemmas’ – page 30
48
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Patenting of Plant Properties
Case Study: Jeevani and The Kani Tribes
The Kani tribes are inhabitants in the mountainous region of south-western India. In
total there are about 16,000 Kanis distributed in ‘hamlets’ throughout the forest areas.
In the December of 1987 scientists working on the All India Coordinated Research
Project of enthnobiology (AICRPE) were trekking through the forests, studying and
monitoring the Kani tribal settlements. Due to the trekking and conditions endured
the scientists became very tired, however, they noted that the Kani, who were acting
as guides, remained energetic throughout, every so often munching on small black
fruits. These fruits were offered to the scientists and they were told that it would
stave off their tiredness and lethargy. The AICRPE team tried them and found their
energy restored.
Subsequently the Kani tribes’ people introduced the scientists to the ‘magical’ plant,
which was later identified as ‘Trichopus zeylanicus ssp travancoricus’. Research
showed that the leaf of the plant contained various glycolipids and some other nonsteroidal compounds with aptogenbic and immuno-enhancing properties and the fruits
showed mainly anti-fatigue properties.
The Tropical Botanical Garden Research Institute (TBGRI) successfully developed a
scientifically valid and standardised herbal drug, based on the plant properties. The
drug was called Jeervari and was released for commercial production in 1995 by Arya
National Post, ‘What Others Are Saying’ [2001] –
http://innovation.phrma.org/others/more_phmindu.phtml
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Vaidya Pharmacy by license. TBGRI agreed to share the license fee and royalties
with the tribal community 50/50.
In order for the Kani tribes to receive the funds a trust was set up, intended for the
purpose of welfare activities for the tribe. The TBGRI then went on to train 25 tribal
families to cultivate the plant in the forest, from which they earned money for the sale
of the leaves.54
This story is one of success that was mutually beneficial and worked well.
Admittedly not all companies would be as willing to share their profits so freely,
however, it shows that it can work in practice. However, the ‘sharing’ of profits is not
necessary, although mutually beneficial schemes are encouraged.
Nevertheless,
without the scientists the tribe would not have gained anything, neither would have
the wider society, as the benefits of the fruits would not have been made accessible.
Without patenting the properties the AICRPE would not have been able to put in the
necessary research and development as costs would not have been recouped. They
also would not have been able to subsequently entice and licence it to the
pharmaceutical company, who in turn made it accessible, without the patent system.
In fact the approach that inspired the term ‘biopiracy’ has already been curbed, by the
Convention on Biological Diversity in 1993, which sought to strike a balance between
conservation and the sustainable use of plant properties for development or new drugs
and such like. This is not simply a flimsy piece of political appeasement, there are
real consequences if this treaty is ignored. It has the power to lead to the cancellation
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of patents on natural product inventions, if the rules are not adhered to, the research
would be deemed, “tainted”55 as illustrated in Regents of University of California v Eli
Lilly & Co.56
It is probably wise for countries to enter into benefit sharing contracts with local
people,57 however, not a necessary requirement. The patenting of plant properties is
heavily regulated, in three main ways, through international treaties, national laws and
by professional self-regulators. The majority of researchers act in strict compliance
with such measures and therefore to deem their actions to be that of ‘pirates’ is an
accusation misplaced and ill informed, they are under no obligation to share their
rewards, as with any other type of patented product or process.
The importance of the patenting of plant properties within the pharmaceutical industry
is shown by the current value of the world market for medicinal plants derived from
materials utilised by indigenous communities.
It is estimated that it is worth
US$43billion, annually.58 The estimates for annual markets of products developed
from genetic resources form, in the pharmaceutical industry between US$75 and 150
billion, which reflects at a low estimate that natural products form 25% of the global
market, a high estimate going up to 50% of the market.59
Gollin, ‘Biopiracy: The Legal Perspective’ [2001] http://www.actionbioscience.org/biodiversity/gollin.html
56
Regents of University of California v Eli Lilly & Co – see Gollin, ‘Biopiracy: The Legal
Perspective’ [2001] -http://www.actionbioscience.org/biodiversity/gollin.html
57
Gollin, ‘Biopiracy: The Legal Perspective’ [2001] http://www.actionbioscience.org/biodiversity/gollin.html
58
‘The TRIPS Agreement and its Implications for Food Security’ http://www.voice.buz.org/genetic_engineering/Jorran.htm/
59
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In 2003 investors ploughed $17 billion into biotech companies, despite the fact that
the majority of the companies at that time would have had no marketable products and
a loss was likely.60
Patents are needed to attract investors into risky research
projects.61 Those discoveries and inventions that do become successful have an
increased value if patented, which “provide(s) incentives for private sector investment
into biotechnology development”.62
Glaxo-Smith-Kline says that, “Patents play a vital role in encouraging the innovation
needed to develop new treatments for many of the most serious and life threatening
diseases.
We invest considerable time and money to develop each new
pharmaceutical product – an average of $800 million per product. If new products
could be immediately copied and sold by others we would not be able to continue to
fund new research. This would discourage innovation and limit research into newer
and better medicines and vaccines.”63
“The rationale for patents is that they stimulate economic and technological
development and promote competition by creating motivation for invention”.64
In
the biotechnology sector in particular Intellectual Property protection is a “key
factor”65 in advancement.
Alan Story’s article on the patent system and “access to essential medicines” presents
two “killer” arguments for the current patent system. Firstly that “without the patent
60
http://www.bio.org/speeches/20040624.asp
ibid.
62
‘The Importance of Intellectual Property’ article from web
63
‘Corporate Responsibility’ - http://www.gsk.com/index.htm
64
‘Intellectual Property: A Power Tool for Economic Growth’ - http://wipo.int/aboutwipo/en/dgo/wipo_pub_888/pdf/wipo_pub_888_chapter4.pdf
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Hannah Scutt
system, the development of new medicines and vaccines would grind to a halt.
Secondly
it
is
the
massive
research
and
development
budgets
of
large…pharmaceutical companies that are the main guarantor of continuing
pharmaceutical progress”66 such budgets would not be available without investors
having some kind of guarantee, which the patent system provides. To remove the
patent system would be to deny the development of new drugs and vaccines, based on
these two arguments it is difficult to establish a reason against the patent system.
Richard Sykes, CEO of Glaxo Wellcome has summarised this view. “Our ability to
invest such huge sums in research and development depends upon strong patent
protection. Medicines are easily copied and no one would make such an investment
without the prospect that their invention would enjoy a limited period of protection
from copying”.67
Social Justifications
Without the patent system the current extent of research and innovation and invention
would not take place, as it would be financially impractical for the majority of
scientists and pharmaceutical companies. Subsidies that are already obtained from
governments would not cover the deficit that would be present if there were no patent
system, as the UK already cannot cope with the failing NHS and schooling systems.
Deflecting the budget towards ‘inventions of new medicines’ are unlikely to convince
‘The Importance of Intellectual Property’ article from web
Story, ‘The Oxfam “access to essential medicines” project: some patent and research and
development issues’ October 2000.
67
Story, ‘The Oxfam “access to essential medicines” project: some patent and research and
development issues’ October 2000.
65
66
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Hannah Scutt
the voters, especially as only 3 out of 10,000 new drugs ever reach the market.
Therefore the patent system is a necessary feature to get new drugs onto the market.
Otherwise there would be no real investment into the necessary research and
development for new drugs and vaccines.
The patenting of plant properties makes products available to the wider society, as
otherwise benefits would be restricted to the indigenous peoples – and rightly so some
may say?
If this is the case, you should ask yourself the question, would I be able to have an
operation with no anaesthetic to numb the pain? If so, then you can remain on your
moral high ground against the patenting of plant properties. However, I feel the
majority of society would agree that anaesthetics have become a crucial component in
modern day medicine, allowing many procedures to go ahead, easing the pain factor,
or even making the operation possible.
It is possible to have a filling without
anaesthetic, but not so practical for open-heart surgery.
How many people would allow a loved one to suffer pain or die, simply to prevent a
plant property being patented? – if so it would be through sheer bloody-mindedness.
And that is exactly what those against patenting of plant properties are saying. Curari
or Curare was used for years and still is used by indigenous peoples to help with their
hunting, it forms their poison arrows, curare acts as a muscle relaxant, which strikes
down their prey so that they can then go and kill it. Curare was discovered, patented
and is now used prolifically world-wide as an anaesthetic. Surely you cannot call
these scientists pirates?
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Hannah Scutt
Pfizer see their basic role as to, “discover and develop medicines, help make
medicines available, advance and share health information and partner on public
health programmes”.68
They say, “Our medicines alone help about 150 million
people a year world-wide”.69
Whilst companies such as Pfizer are benefiting from the massive rewards available in
the industry, surely this is acceptable for a business that strives for improvements in
society and healthcare.
As stated earlier, pharmaceutical companies are making
money out of saving lives, as Bill Gates suggests we are not a communist society, we
are essentially a capitalist one, so pharmaceuticals do make large profits, but they
have justifications in the sense that “Society benefits from improvements” which
leads to “…increased knowledge created by the inventive process”.70 This process is
made more prolific due to the patent system making it possible to invest in inventive
procedures.
A patent system is essentially established for three main reasons. Firstly its role is to
promote creativity and inventiveness by offering exclusive ownership rights.
Secondly, the patent system promotes investment, as it acts as a form of protection on
people’s investments.
Thirdly, whilst acting as a catalyst for inventiveness and
development, the patent system which protects new products or processes, also
recognises the importance of diffusing knowledge and information through
publication of patent applications and grants for the benefit of the public and aiding
68
http://www.pfizer.com/subsites/corporate_citizenship/index.html
ibid.
70
Holyoak and Torremans, ‘Intellectual Property Law’ 2 nd ed. Butterworths [1998] – page 37
69
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Hannah Scutt
other research and development”.71 This three pronged approach of the patent system
demonstrates that it is much more than simply a tool which makes the rich richer. As
Bill Gates stated, “Intellectual property is the incentive system for the products of the
future.”72
A legal requirement of the patent system, following the Patent Act section14 (3) is
that, “The specification of an application shall disclose the invention in a manner
which is clear enough and complete enough for the invention to be performed by a
person skilled in the art”.73 “Patents are granted on the condition that the inventor
publishes a full description of the invention, which would allow someone else to
manufacture the product. This helps to build scientific understanding and encourage
further research and innovation”.74
“The requirement of public disclosure is one of the justifications for the patent right
because the patent holder trades the disadvantage of full public disclosure of his
invention and how it works for the grant of an exclusive legal right to its use for a
limited period”.75 Patents allow time-restricted monopolies, but “this distortion of
market is diminished by the disclosure requirement, giving rivals a chance to
experiment and develop the original concept into a patentable improvement.”76
The patent system makes knowledge public, allowing extra innovation and invention,
developing upon the basic principles that are disclosed by the prior products and
‘Intellectual Property: A Power Tool for Economic Growth’ - http://wipo.int/aboutwipo/en/dgo/wipo_pub_888/pdf/wipo_pub_888_chapter2.pdf
72
http://www.boingboing.net/2005/01/05/bill-gates_free_cult.html
73
Blackstone’s Statues on Intellectual Property, 7th ed. [2004] - Patents Act 1977 section 14(3)
74
‘Corporate Responsibility’ - http://www.gsk.com/index.htm
71
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Hannah Scutt
processes that have already gained patents. “Disclosure of technical knowledge is a
positive aspect of the patent system”.77 “Patents provide economic and technological
benefits in the form of information because they are public documents”.78
The patenting of traditional knowledge is beneficial to the wider society as it allows
the knowledge into the public domain, rather than keeping it a secret for only a few
people to benefit.79 Ayla Hussain of L’Oreal says, “We take ideas that are thousands
of years old and use modern technology to maximise their efficiency”. 80 In the USA
it is estimated that nine out of ten prescription drugs are based on natural compounds
from plants, fungi, etc.”81 “According to the World Health Organisation, up to 80%
of the worlds population depends upon traditional medicine for its primary health
needs”.82
Therefore, if nothing else, the public disclosure aspect of patents is
substantial enough for the system to be deemed necessary, “… disclosure is necessary
if people are to learn from and build on the ideas of others”. 83 If there were no patent
system, knowledge otherwise remains undisclosed and therefore unusable, benefiting
no one.
“Intellectual Property Law is a bargain between society and the inventor”.84 Although
some dub it the “phenomenon (of) … monoculture,”85 replacing tradition with a
‘Intellectual Property: A Power Tool for Economic Growth’ - http://wipo.int/aboutwipo/en/dgo/wipo_pub_888/pdf/wipo_pub_888_chapter4.pdf
76
Holyoak and Torremans, ‘Intellectual Property Law’ 2 nd ed. Butterworths [1998] – page 41
77
Holyoak and Torremans, ‘Intellectual Property Law’ 2 nd ed. Butterworths [1998] – page 22
78
‘Intellectual Property: A Power Tool for Economic Growth’ - http://wipo.int/aboutwipo/en/dgo/wipo_pub_888/pdf/wipo_pub_888_chapter4.pdf
79
Moore, ‘Intellectual Property – Moral, Legal and International Dilemmas’ – page 21
80
‘Intellectual Property: A Power Tool for Economic Growth’ - http://wipo.int/aboutwipo/en/dgo/wipo_pub_888/pdf/wipo_pub_888_chapter7.pdf
81
ibid.
82
ibid.
83
Moore, ‘Intellectual Property – Moral, Legal and International Dilemmas’ – page 21
84
Bainbridge, ‘Cases and Materials in Intellectual Property Law (Pitman Publishing 1995) – page 3
85
‘Biopiracy, Monoculture and Biodiversity’ - http://webpages.charter.net/westons/biopiract.html
75
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Hannah Scutt
homogenised environment, “producing everything the same way and in great
quantities,”86 this in fact is not the case. For example, the Kani tribe still eats the
fruits to stave of lethargy, they have done nothing except benefit from the patenting of
the fruits. In fact even if it was to be seen as mass production and the erosion of
traditional societies, surely it is actually bringing societies together, as technology is
doing through increased communications, etc. This in turn means we can learn from
one another and then the wider society can benefit from an abundance of natural
resources.
Conclusion
In conclusion, ‘biopiracy’ is a term used by the media and activists who are trying to
prevent the further development of developed countries. Biopiracy, I believe, is the
wrong term for the activity of patenting plant properties of indigenous peoples in
developing regions. ‘Piracy’ implies a criminal offence or activity, it sounds sinister.
However, these ‘biopirates’ are merely trying to be innovative and making life in
general better. Removing this derogatory label leaves no case to be answered, no
defence is needed as it is clear that there is no activity to defend – it is simply and
purely development, patenting merely providing the necessary and practical means for
doing this. Biopiracy, or preferably, bio-prospecting, and the patenting of plant
properties has three main justifications, the philosophical and historical aspect, the
economic aspect and perhaps crucially the social development aspect. Arguably the
patenting of plant properties is synonymous with respect for developing society,
valuing development as an important and crucial feature of society and its continued
existence as we know it. Biopiracy: Defended.
86
‘Biopiracy, Monoculture and Biodiversity’ - http://webpages.charter.net/westons/biopiract.html
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Hannah Scutt
Bibliography
Articles

Alan Story, Biopiracy and the dangers of patent over-protectionism (New Law
Journal, 5th February 1999)

Alan Story, The Oxfam “access to essential medicines” project: Some patent and
research and development issues (October 2000)

Corrina Schuler, ‘Bushmen step up fight to protect ancient remedy. Battle over
patent: Drug giant Pfizer wants to develop diet pill’ (National Post, Toronto,
Canada, 28th September 2001)

Daniel J Gervais, The TRIPS Agreement Interpretation and Implementation,
[1999] CIPR Issue 3 – Sweet and Maxwell Limited (and contributors)

D Vaver, Intellectual Property Today: Of Myths and Paradoxes, [1990] 69 Can
Bar Rev 98

John Vidal, Can you really patent a tree? (The Guardian, 27th November 1999)

Peter Drahos, Biotechnology Patents, Markets and Morality, [1999] EIPR 441

S Crespi, Biotechnology Patenting: The Wicked Animal Must Defend Itself,
[1995] EIPR 431

Simon Butt, Intellectual Property in Indonesia: A Problematic Legal Transplant,
[2002] EIPR Issue 9 Sweet and Maxwell Limited (and contributors)
Books

Adam D Moore (eds.), Intellectual Property – Moral, Legal and International
Dilemmas
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Hannah Scutt

Christie and Gare, Blackstone’s Statutes on Intellectual Property (Oxford
University Press 2004)

Costner, Patent Law Review (1973)

David I Bainbridge, Cases and Materials in Intellectual Property Law (Pitman
Publishing 1995)

National Research Council, Global Dimensions of Intellectual Property Rights in
Science and Technology (National Academy Press 1993)

Paul Torremans and Jon Holyoak, Intellectual Property Law 2nd ed. (Butterworths
1998)

Peter Drahos, A Philosophy of Intellectual Property (Dartmouth Publishing
Company 1996)
Websites

Agreement on Trade Related Aspects of Intellectual Property Rights
http://en.wikipedia.org/wiki/Agreement_on_Trade_Related_Aspects_of_Intellectu
al_Property_Rights

Big Pharma’s favourite academics and opinion makers
http://www.cptech.org/ip/health/pharmadefenders.html

Biopiracy
http://www.absoluteastonomy.com/encyclopedia/b/bi/biopiracy.htm

Biopiracy, Monoculture and Biodiversity
http://webpages.charter.net/westons/biopiracy.html

Biopiracy: The Legal Perspective
http://www.actionbioscience.org/biodiversity/gollin.html

Biotechnology Industry Organisation – “Patents Save Lives”
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Hannah Scutt
http://www.bio.org/speeches/speeches/20040624.asp

Boing Boing: A Directory of Wonderful Things
http://www.boingboing.net/2005/01/05/bill-gates_free_cult.html

CIEL – The Centre for International Environmental Law
www.ciel.org

Convention on Biological Diversity – United Nations Environment
Programme
www.biodiv.org/welcome.aspx

Ethical Boundaries
http://www.amozonlink.org/biopiracy/

EU Court Upholds Biotech Patents Directive
http://www.i-sis.org.uk/isisnews/I-sisnews13-30.php

Find Law
http://ip.findlaw.com/

Glaxo-Smith-Kline
http://www.gsk.com/index.htm

Intellectual Property and Genetic Resource, Traditional Knowledge and
Folklaw
http://www.wipo.int/about-ip/en/studies/publications/genetic_resources.htm

Intellectual Property – A Power Tool for Economic Growth
http://www.wipo.int/about-ipo/en/dgo/wipo_pub_888/index_wipo_pub_888.html

Michael Quinion
http://www.worldwidewords.org/turnsofphrase/tp-bio5.htm

National Library of Medicine
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Hannah Scutt
http://www.ncbi.nlm.nih.gov/entrez/query.fcgi?cmd=Retrieve&db=PubMed&list_
uids=4895826&dopt=Abstract

One Look Dictionary Search
http://www.onelook.com/?/oc=rescb&long=all&w=curari

Organic Consumers
http://www.organicconsumers.org/Patent/uspatsys.cfm_

Pfizer – Our Role in Local and Global Communities
http://www.pfizer.com/subsites/corporate-citizenship/index.html

Pharmaceuticals and the WTO TRIPS Agreement: Questions and Answers
http://www.who.int/medicines/library/par/hivrelateddocs/pharmaceuticals_wto_tri
ps.pdf

Stallman, ‘Biopiracy or Bioprivateering?
http://www.stallman.org/articles/biopiracy.html

The State Bar of California
http://members.calbar.ca.gov/search/site.aspx?q=patent+piracy&restrict=

The TRIPs Agreement and its Implications for Food Security
http://www.voice.buz.org/genetic_engineering/Jorran.html

Tropical Plant Database
http://www.rain-tree.com/curare.htm

TWN – Third World Network
http://www.twnside.org.sg/access_7.htm

‘What Others Are Saying’
http://innovation.phrma.org/others/more_innomed.phtml

Word Look Up
http://www.wordlookup.net/bi/biopiracy.html
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Hannah Scutt

World Trade Organisation
http://www.wto.org/english/tratop_e/trips_e/trips_e.htm
28