Bridges Trade BioRes • Volume 9 • Number 13 • 7th August 2009

Peru Successful in Bid to Protect Traditional Knowledge

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Peru has blocked several foreign companies from securing patents on products they say were developed using Peruvian traditional knowledge (TK). In the past several months, Peru’s National Commission Against BioPiracy has been able to show authorities from France, Japan, Korea, and the US that products submitted for patents failed to demonstrate the innovation and inventiveness required for patents.

“This is a good example of how coordinated action between the state, the business sector and civil society can prevent inappropriately granted patents related to genetic resources and traditional knowledge,” remarked Andrés Valladolid, technical coordinator at the Commission.

National and international recognition and protection of TK is a critical issue for many developing countries, and especially Peru, who is among ten countries with the most extensive biodiversity in the world. However, these efforts come at a time when many Peruvians say that national protection of traditional knowledge is being undermined by free trade agreements (FTAs).

FTAs complicate IP issues

This past December, the Peruvian government passed a series of laws to meet implementation requirements for their much-anticipated FTA with the US. Adjustment of internal intellectual property (IP) regimes prior to the entrance into force of an agreement is a common feature of bilateral agreements with the US. However, some observers say the changes have resulted in stronger IP enforcement within the FTA after implementation.

Many interest groups argue that the new regulations expose native biodiversity, and the traditional knowledge of it, to bioprospecting and patenting. Experts say the new rules remove the ban on patenting plant life, a measure established in 2000 by Decision 486 of the Andean Community, a trade bloc comprised of Bolivia, Colombia, Ecuador, and Peru. According to reports, sanctions for not having a certificate of origin for a genetic resource or licensing contract, in the case of TK, when applying for a patent are now limited to a fine.

Acting in stark contrast to the national government, Peru’s Cusco regional government released, in the same month, new laws against biopiracy that support the protection of indigenous knowledge. The measures include provisions for prior informed consent from indigenous and local communities, benefit-sharing with communities, and limitations upon the creation of patent rights over genetic resources.

“The new law is a good example of how local governments can create the appropriate legal and institutional framework, as well as the mechanisms to implement it, to ensure that biopiracy does not prey on the creativity of indigenous peoples and local communities,” Alejandro Argumedo, director of Asociacion ANDES, a Cusco-based indigenous organisation, told SciDev.net. However, María Scurrah, a Peruvian scientist specialising in farmer’s rights, indicated the new law could come into conflict with national laws regarding the recording of indigenous knowledge.

Protecting TK should be facilitated: Commission

Protecting genetic resources and TK is a challenging and complicated task for Peru, which is endowed with a territory rich in biodiversity, but a lack of sufficient capacity. Thus, the Commission has limited its focus to products derived from Lepidium meyenii, Plukenetia volubilis Linneo, and Myrciaria dubia - three plants well known among indigenous Peruvian populations for their medicinal properties.

In the case of Plukenetia volubilis Linneo (also known as Sacha inchi), the vine has been traditionally cultivated by the people of the Amazon for over 3000 years for its almonds, which are highly concentrated in fatty acids. Commission efforts seek to protect this traditional knowledge as companies in the cosmetic and food markets pursue patents for compounds derived from the plant.

However, advocates say identifying possible cases of biopiracy in patent applications and patents granted can be challenging. For instance, some country rules only allow third parties to intervene after a patent has been granted making the work to reverse the patent far more difficult. Additionally, gaining access to the necessary information can be time-consuming.

The Commission says the major challenge in conducting analyses of applications is the lack of reference to the origin of the resource or knowledge, or mentioning of such a resource or knowledge used to develop the invention. Bringing greater transparency to this aspect of the patent system is the current focus of negotiations to align objectives of the Convention on Biodiversity (CBD) with the WTO Trade Related Aspects of Intellectual Property Rights (TRIPS) agreement.

Peru pushing for TRIPS reform

Both individually and in association with other countries - such as Brazil, Ecuador, India, Venezuela, Cuba, the Dominican Republic, Thailand, India, and others - Peru has made various submissions aimed at inserting a provision in the TRIPS Agreement. If successful, the initiative would require patent applications using biological resources and traditional knowledge to disclose the origin and source of those resources or that knowledge, thus helping to prevent biopiracy. Proposals have also been submitted that would require applicants to provide evidence of prior informed consent and benefit sharing arrangements.

In a 2006 communication to the WTO TRIPS Council, Peru maintained their objective was “by no means a question of dismantling the patent system,” stating that their efforts reflect a desire to promote innovation “whilst maintaining a degree of fairness and equity among the stakeholders involved in the system.”

Informal talks on possible amendments to the TRIPS agreement, which will resume in early October, are proceeding at a high political level. Among the considerations is the disclosure of origin amendment, also known as the CBD proposal. Of the major IP issues being discussed, WTO Director-General, Pascal Lamy, indicated that willingness exists for discussions on this issue, with all governments in agreement that the prevention of misappropriation of genetic resource is desirable with differences stemming only from concerns regarding how to ensure that TRIPS “effectively supports those objectives.”

More Information

The text of the regional Cusco government laws (O.R. Nº 048-2008-CR/GRC) can be found here: http://www.regioncusco.gob.pe/portal/contenido.php?id=211

ICTSD Reporting; “The struggle against IPR in the Andes,” GRAIN, July 2009; “Proponents Fight To Keep IP Issues At High Level At WTO,” IP WATCH, 30 July 2009; “Peru’s patent win strikes blow against biopiracy,” SCIDEV.NET, 16 July 2009; “Stronger IP Enforcement Finds A Home In Bilateral Trade Agreements,” IP WATCH, 21April 2009; “Revised laws ‘could promote biopiracy’ in Peru,” SCIDEV.NET, 19 February 2009; “Peruvian region outlaws biopiracy,” SCIDEV.NET, 21 January 2009; “Combating Biopiracy-The Peruvian Experience,” COMMUNICATION FROM PERU, WTO COUNCIL FOR TRADE RELATED ASPECTS OF INTELLECTUAL PROPERTY RIGHTS, 13 August 2007