The Amazon rainforest medicinal herbs and Western attempts at exploitation of the indigenous traditional knowledge
By D.P. Agrawal

It is well known that many traditional healers and religious leaders from the indigenous tribes of the Amazon used to collect the plant Banisteriopsis caap iin order to process it to produce the ceremonial drink ayahausca, also called yage.  They used ayahausca in religious and healing ceremonies.  According to tradition, ayahausca was prepared and administered only under the guidance of traditional healers.  The Plant Patent No. 5,751, issued to Loren Miller on June 17, 1986 by USPTO, claimed rights over a supposed variety of B. caapi, which Miller dubbed 'De Vine' (Mashelkar 2001).

A challenge to this patent was made by the Center for International Environment Law (CIEL) on behalf of the Coordinating Body of Indigenous Organization of the Amazon Basin (COICA) and the Coalition for Amazonian Peoples and Their Environment (Amazon Coalition).  COICA is a coordinating body of more than 400 tribes.

It was argued that in order to obtain a plant patent, an applicant must prove that the plant is of a new variety.  That means that the plant is distinct from existing forms and is currently found in an uncultivated state (35 U.S.C. # 161).  Such patents are authorized under a 1930 law designed to reward efforts of growers who develop new varieties of crops such as fruits trees or grapevines.  The patent claimed to have identified a variety of the species with new and distinctive physical features.  But according to Prof. William A. Anderson of the University of Michigan, a leading expert on the plant family to which B. caapi belongs, the features described as 'prior art' were already there in the records of major herbaria.  Furthermore, this plant grew naturally throughout the Amazon basin.  By law, plant patents cannot be awarded to plants 'found in an uncultivated state'.[SDS1] 

According to Mashlekar, the USPTO rejected Miller's patent claim in an Office Action dated November 3, 1999.  The rejection was made on the narrowest grounds possible under the statutory bar of 35 U.S.C. #102(b).  Section 102(b) prohibits inter alia, the issuance of a patent when the invention has already been patented or described in a printed publication more than one year prior to the date of patent application.  The rejection notice noted that the accessioned specimen sheets from the Field Museum in Chicago contain specimens of B. caapi whose major defining feature is the flower color which is indistinguishable from that of the Da Vine.  These sheets were known and available in the United States more than one year prior to the filling of Miller's patent application.

By permitting #102(b)'s statutory bar to be met by these specimen sheets, the USPTO confirmed in its rejection that such sheets qualify as 'printed publications' for the purpose of determining a plant's patentability.  This instance was the first time the USPTO adopted this interpretation of prior art publications.  However, the interpretation is a logical extension of earlier decisions that recognized single copies of doctoral dissertations catalogued in university libraries and single copies of grant proposals indexed and publicly available on file with the National Science Foundation as printed publications.

It is however sad to note that the case finally took a different turn. The inventor convinced the USPTO of the novelty of his claim of the new variety and the USPTO reversed its original decision in the re-examination certificate given on April 17, 2001 with the following statement:

 'No amendments have been made to the patent. As a result of re-examination, it has been determined that the patentability of claim 1 is confirmed.’

It is, however, heartening to note that the Indian cases of Turmeric and Basmati still continue to be the only successful battles on Traditional Knowledge with USPTO to date (Mashelkar 2001).

Reference

Mashelkar, R.A., 2001. Intellectual property rights and the Third World. Current Science 81 (8): 961.