Patents and biopiracy: the fine line between innovation and sustainability that affects all living things

Patents are legal instruments designed to safeguard IP and encourage innovation, as they grant patent owners exclusive rights to their inventions for a determined period, fostering an environment in which research and development can flourish.

Biological and genetic resources are often researched and collected, and the knowledge derived is applicable to useful products in several industry fields, such as agriculture, cosmetics, and pharmaceuticals.

However, when the naturally occurring biochemical, genetic material or traditional knowledge is unethically appropriated or commercially exploited without providing fair compensation to the community from which it originates, this is known as biopiracy.

The implications of biopiracy and patents extend far beyond legal and economic boundaries. They further intersect scientific and ethical concerns, and this article aims to unveil the opportunities for innovation and challenges for sustainability and social justice associated with it.

Legal concerns

Governments and other international organisations are increasingly implementing legislation and mechanisms to ensure that bioprospecting and patenting align with sustainability goals.

The Convention on Biological Diversity (CBD) is an international treaty established to promote the conservation of biodiversity, the sustainable use of its components, and the fair and equitable sharing of benefits arising from the utilisation of genetic resources.

It entered into force in 1993 and, apart from Andorra, South Sudan, the US, and the Holy See (the Vatican), all other member states of the United Nations are committed to it.

The Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization (Nagoya Protocol) is a supplementary international treaty to the CBD, which entered into force in 2014.

The Nagoya Protocol requires parties to implement measures to ensure that access to genetic resources is based on prior informed consent—ie, researchers and companies must obtain permission from the countries and communities where they intend to access genetic resources or traditional knowledge before proceeding with their activities.

The protocol also emphasises benefit-sharing to ensure that the economic benefits derived from the utilisation of genetic resources are shared fairly with the countries and communities that provide these resources. This includes not only financial benefits, but also technology transfer, and capacity-building.

However, the Convention's success depends on the combined efforts of the world's nations: since each country is responsible for implementing the Convention guidelines, compliance will depend on informed self-interest and peer pressure from other countries and from public opinion. The same applies to the protocol: many countries are still in the process of enacting national legislation to align with the protocol's requirements.

Other bilateral agreements, such as bioprospecting contracts celebrated between a host country and a pharmaceutical company, are an approach that emphasizes responsible research practices that prioritise sustainability and respect for indigenous knowledge. It involves obtaining informed consent, sharing benefits fairly, and implementing sustainable resource management practices.

An example of successful commercial bioprospecting agreement was celebrated between Diversa Corporation (a California-based industrial biotechnology company) and the Yellowstone National Park (a national park located in the western US with abundant and diverse wildlife).

Economic concerns

Biological resources, particularly those from diverse ecosystems (such as the Amazon), hold immense economic potential. These resources can be anything from medicinal plants with unique healing properties to microorganisms with potential industrial applications and one of the greatest challenges is striking a balance between economic interests and environmental sustainability.

Unfortunately, the attraction to economic gains often drives the exploration and indiscriminate exploitation of these resources, leading to overharvesting, habitat destruction, and endangerment of species, causing irreparable damage to ecosystems.

Since patenting can grant exclusive rights to an entity for a period of time, it can limit access to certain biological resources or technologies, creating monopolies on naturally occurring material or traditional knowledge which has been unproperly appropriated.

In most cases, the pursuit of short-term economic benefits does not align with long-term ecological sustainability. In this context, responsible resource management and a shared commitment to conservation are key concepts that must be considered.

Scientific concerns

Unauthorised exploitation of genetic resources can lead to loss of biodiversity and, therefore, limit the availability of critical research tools and materials for legitimate scientific research, therefore hindering scientific progress and innovation.

The same applies to excessive patenting, which can create barriers by limiting the availability of essential tools and resources.

Another point to be considered is the misuse of genetic resources, which can potentially lead to irresponsible or unsafe applications in biotechnology and genetic engineering as well as cause biosecurity risks.

As regards Traditional Knowledge, biopiracy can result in misappropriation, leading to the loss of culturally important information and valuable insights for scientific research, since indigenous and local knowledge systems often encompass unique cultural and ecological perspectives.

Ethical concerns

The patenting of nature-based products, especially those obtained through biopiracy, raises ethical questions related to the potential for exploitation in the name of profit-driven research without the consent of those who have passed down traditional knowledge for generations.

The unethical acquisition of biological resources or traditional knowledge can damage trust and cooperation between researchers and communities, hindering collaborative efforts that could otherwise benefit both scientific discovery and conservation efforts.

Biopiracy famous cases

Notorious examples of biopiracy relate to medicinal plants and the ancient traditional knowledge related to them.

Indians have shared the knowledge of the fungicidal properties of the neem with the entire world, however, the European Patent Office (EPO) decided to grant a European patent to WR Grace and the Department of Agriculture of the USA for a method for controlling fungi on plants by the aid of a hydrophobic extracted neem oil. A legal opposition was filed by India against the grant of the patent, and the patent was then revoked.

Ayahuasca, an Amazonian plant that has been used by religious leaders for generations to treat sicknesses, contact spirits and foresee the future, was protected by a US Plant Patent filed by Loren Miller, an American scientist and entrepreneur. The patent was revoked after the request of the indigenous peoples of Ecuador, but Miller filed for an appeal and the patent was reinstated for its remaining life span.

The food giant Nestlé claimed to have invented stomach soothing use of Nigella sativa to prevent food allergies. However, Nigella sativa is an ancient food and medicinal crop, which has been used to treat digestive ailments for hundreds of years and which is mentioned in the written traditional medicinal texts of major civilizations like the Ayurveda. The patent application was never granted.

Conclusion

The need to protect innovation must be balanced with the ethical obligation to safeguard biodiversity and indigenous rights. Biopiracy poses a significant threat to biodiversity and the granting of exclusive rights for biological resources or traditional knowledge without adequate examination or consideration can hinder the ability of the communities to benefit from their own resources.

This is a co-published article, which was originally published in the World Intellectual Property Review (WIPR)