Beware! There are pirates on the loose. Not on the seas but on land.
They are not after gold, war booty or kegs of rum. They are after life.
These pirates are swashbuckling silently but recklessly in Asia with incalculable stakes for humankind. One where a handful of genomic companies and their pharmaceutical partners are rushing to privatize plants, animals and human genes and their products.
The commodity they seek to exploit is not gold but biological information. The raw material they need is human DNA: the blueprint of human life, plant, and animal genes. They are the gene hunters and have invaded the Philippine shores.
Because of massive profits, more and more big corporations are being engaged in bioprospecting and biopiracy using knowledge and biological resources of Third World communities.
Bioprospecting oe biopiracy is the exploration, extraction and screening of biological diversity and indigenous knowledge for commercial, genetic and biochemical purposes. It is done by multinational firms and governments of developed countries , with covert cooperation from scientists within victim nations. They patent and map chromosomes of genetic resources without informing, consulting and acknowledging and duly compensating the sources.
Today, as dusk hovers over Philippine forests, a dawn has just began on the country’s biodiversity. The nation’s non-timber forest products, resources, minerals, agricultural and medicinal plants and indigenous knowledge and the indigenous people themselves, are being looted by monopoly companies that make millions of dollars patenting and selling plant, animal and human germplasm.
The most widely known case of biopiracy in the country is the theft of a soil microorganism, isolated from a soil in a cemetery in Iloilo by a Filipino scientist Abelardo Aguilar. Aguilar, who hailed from Iloilo made the discovery when working with Eli Lilly Co., one of biggest pharmaceutical firms in the United States. He named the soil isolate Ilosone in honor of Iloilo. Eli Lilly made use of Iloson to produce the world-known anti-biotic erythromycin and promised Aguilar a hefty share as well as royalties from the earnings. Aguilar never received any cent from his former company even with the Philippine government’s intervention. Today, erythromycin earns for Eli Lilly, which now owns the patent for the soil isolate, some 120 millions dollars yearly.
Lately, a stunning biopiracy which is shrouded with obscurity, perhaps because of the involvement of government scientists, is the discovery of a pain-killing Philippine snail and its having patented by another foreign company. Considered as the most powerful pain-killer ever discovered, 1,000 times stronger than morphine, a drug called SNX 111 is a product of peptides from the Philippine sea snail (Conus magus). It was pirated with the help of researchers from a government state university for the US-based pharmaceutical Neurex Inc. and University of Utah. To date, it is reported that sales have reached 80 million dollars annually with nary a cent for the Philippines.
SNX-111 is worth more outside the United States as it is highly in demand in hospitals, drugstores and battlefields that dot so many spots in the world today. Neurex has likewise patented the use of the snail toxins to treat victims of stroke under US patent numbers 5,189,020, 5,559,095 and 5,587,454.
Warner Lambert, perhaps the largest American international pharmaceutical company, entered into a marketing deal with Neurex to market the pain-killer. Another medical company, the US-owned Medtronic which specializes in medicinal plants, has signed a contract with Neurex to sell the SNX111 pain killer. Neurex itself is going into pesticide formulation using the Philippine sea snail.
The controversial twist in the discovery is that Filipino scientists collaborated with their University of Utah counterparts to form and finance a private company called Gene Seas Asia to capitalize in the commercial value of the seas snail.
As a result, it is obvious that Gene Seas Asia and its connections have siphoned and circumvented public funds to promote private research for private individuals, and eventually, private income. Ironically, Filipinos who will avail of the pain-killer at a high cost, will be buying something they have always owned.
Absurd as it may be , Filipinos, especially Ilocanos who are fond of “pinakbet”, they might be buying their ampalaya or bitter melon (Momordica charantia) in the future from American seed companies. That is because ampalaya is now owned by the United States government after patenting it with US patent numbers 5,484 , 889 for the US National Institute of Health; JP6501089 for the US Army and ; EP 552257 for the New York University .
And that is not all. A decoction from ampalaya, “talong (Solanum melongena) and “lomboy” or rose apple tree (Suzgium cumini) has been discovered to remedy diabetes and is now owned by a US firm. No thanks to the government’s turtle-paced medical science and technology program. Both vegetables and fruit are known to have diabetic remedies but the US pharmaceutical company Cromak Research Inc., New Jersey beat the Philippine government to the draw. The diabetic remedy was granted US patent number 5,900,240, preventing the Philippines from making any similar drug decoction from crops its originally owned.
In the late 1980s, the Philippine yew tree (Taxus sumatrana) found only in Mount Pulag, Benguet was patented by scientists from a US university. The tree contains taxol, a cancer-curing derivative. The biopirates were able to gain permit from the Department of Environment and Natural Resources (DENR) Cordillera region office to collect tree samples in Mount Pulag.
Humanity In a Bottle
Today, humanity is in a bottle. Human tissues are being owned by companies through human tissue piracy and tissue culture. Tissue culture is the reproduction of a microorganism, plant and animal cells in the laboratory. The culture of human cells is crucial for the biotechnology industry. When kept under proper conditions, “immortalized” human cells can produce in perpetuity and provide an infinite quantity of cells that contain the unique DNA of the original tissue donor or “tricked donor” as in the case of indigenous people who gave away a part of their lives without their knowing.
Through bio-informatics, the business of the genomic companies, where proprietary, high-tech computer methods for collecting, editing, analyzing and storing DNA are used , genes are sequenced to create a set of instructions to produce bits of DNA from a given tissue sample from a donor.
Such technology allows scientists to grow replacements for human organs or pieces of organs. But it also allows the monopolization of human tissue by the powerful biotechnology and pharmaceutical companies who have the technology and equipment to control the ownership, use and sale of important human tissues.
Every October, dubbed by the United Nations as Month of Indigenous Peoples in the World, much of the exploitation against natives peoples are remembered—from the crops and plants they nurtured for food and medicine—to human tissues. There is a tissue piracy in the country as widespread as among indigenous peoples of Micronesia, Papua New Guinea, Pacific and South Atlantic countries and those in the east China sea.
In 2005, two bared that some Ifugao tribespeople were lured into sharing their blood to foreign scientists who posed as medical researchers. Nothing was heard from the scientists after they collected blood and hair samples from the ethnic people.
Followingly, the Baguio based United Nations (UN) accredited Indigenous Peoples International Center for Policy Research and Education or Tebtebba Foundation, reported that Aeta people displaced by the Mount Pinatubo eruption in Zambales were tricked into giving blood samples to a foreign medical team who presented themselves as aid workers.
All these brings to mind the spectre of the initial success of the US project US$3 billion Human Genome Organization (HUGO) where human genetic variation has been mapped, human tissues—including cells and their components—are becoming critical areas for investigation for treatment of diseases but at the same time, pose intense ethical concerns.
Some plants and several animals have been “remade’ by science to the outrage of people and communities who nurtured these. But tinkering with humanity has created a worldwide uproar.
The pattern is similar as in other countries. In September, 1994, Sequana Therapeutics, a genomic company based in California announced that its has extracted 300 samples from 300 inhabitants in an isolated island in Tristan de Cunha in South Atlantic. The information from the gathered DNA has led the company to be able to locate, identify and patent the genes or genes that predispose people to asthma.
The company obtained the DNA samples through its collaboration with the Samuel Lunenfield Research Institute of Mount Sinai Hospital in Toronto, one Canada’s premier biomedical research facilities. As in the Philippines, the researchers collected blood, hair, tissue and even urine samples. The asthma research was supported by AstraZeneca, the combined British and Swedish medical and food giant which has patents of more than 300 plant and animal life forms.
In 1996, Hagahai tribespeoples in Papua New Guinea were tricked by an American anthropologist to give blood, tissue and hair samples in exchange of soap, candies and chocolates. Unknown to the Hagahais, their tissues were used to create an anti-leukemia drug; the tribe’s blood contained HTLV-1 which is resistant to the illness. The Hagahais, through interceding NGOs sued to the World Court and have been compensated recently for the theft of their tissues but the patent remains with Jenkins and her company.
One thing is certain. There is a widespread attempt to commit genetic piracy among indigenous peoples. In the process, it results to violation of the fundamental human rights of the people.
Incyte Pharmaceuticals, for example, a genomic company based in California, describes itself as both a biotech company and a software company, with the ability to collect vast volumes of biological information. Access to their private genome database is sold to giant pharmaceutical companies such as Upjohn and Pfizer. Incyte calls itself a “one-stop shopping for genes.”
The reputable Bio/Technology magazine claims that Incyte has already identified 35,000 unique human genes—roughly one third of the human genome, and that Incyte has the capacity to process 3,000 genes per day. This means that the company can start duplicating certain human characteristics and in fact has applied for the patenting of 40,000 DNA templates.
Gene hunters analyze inheritance patterns of DNA markers from individuals who are affected by a particular disease. The intention is to find cure for human disorders.
Kevin Kinsella, Chief Executive Officer of the Sequan Therapeutics defended their biopiracy acts by explaining recently to the San Diego Union Tribune “Of all the tools in the armamentarium of modern gene discovery, none is more potentially more powerful than that of having the disease gene in hand…We can now find the genes for the common complex disorders that affect majority of people in Western countries.”
But the issue is more complex and controversial than a simple claim to “heal the humanity”. Vicky Tauli-Corpuz of Tebtebba Foundation and chair of the UN Volunteer Fund for Indigenous Peoples says “the patenting of life forms is nothing but an extension of the Western concept of private property and of monopoly capitalism “. “Commodifying life forms”, she says, “ is not only sacrilegious and immoral. It also alienates indigenous peoples’ communal worldviews on wildlife resources and life processes.. We the indigenous people cannot agree to commodifying and privatizing or appropriating for a single individual or corporation what we have communally shared for generations”.
Indeed, no matter how socially desirable the goals of genomic companies may seem, acts of genetic piracy and violation of fundamental human rights are being committed. It is also a grand deception of the people who are willing under “informed consent” to make a contribution to science that may someday improve human condition because they are not informed of the products derived from their DNA. Also, they are deprived of the information that one day, they will lose control of their genetic material once it is removed from their bodies.
Now indigenous peoples say they have enough and are saying “STOP” to the commercialization of their plants, resources, knowledge and of their bodies. There is growing worldwide opposition to the granting of patents on biological materials such as genes, plants, animals and humans. Farmers and indigenous peoples are outraged that plants that they developed are being ‘hijacked’ by companies. Groups as diverse as religious leaders, parliamentarians and environment NGOs are intensifying their campaign against corporate patenting of living things.
There is growing public outrage that these companies are being granted patents for products and technologies that make use of the genetic materials, plants and other biological resources that have long been identified, developed and used by farmers and indigenous peoples, mainly in countries of the South. Whilst the corporations stand to make huge revenues from this process, the local communities are unrewarded and in fact face the threat in future of having to buy the products of these companies at high prices.
The transnational corporations are racing one another to manufacture pharmaceutical and agricultural products, the main ingredients of which are the genetic materials of the medicinal plants and food crops of these local communities. The firms are also collecting other living things, ranging from soil microorganisms to animals and the genes of indigenous people, which they use for research and making new products.
These companies are rushing to apply to patent the new products containing the collected genetic materials, so as to prevent competitors from using them. They can then reap larger profits from being able to hike up prices for the products, or by charging royalties to other firms wishing to use the technology.
There is much at stake in this great race of companies to patent ahead of their rivals, for the coming century is already being termed ‘the age of biology’, when products derived from biological materials are expected to increasingly replace those made from metals and chemicals.
The genes of living organisms are the basic ‘raw materials’ of the new biotechnologies. The ‘Gene Rush’ has thus become a new version of the old ‘Gold Rush’, in the scramble for future profits.
The knowledge and use of ‘biodiversity’ resides with farmers and indigenous people, which have shared their knowledge and plants freely. Yet through patent applications, the companies are now claiming the exclusive right to produce and sell many ‘modified’ plants and animals, which have been manipulated to contain selected foreign genes.
Third World communities are concerned that in future they will have to pay high price for these materials, which in the first place they (more than any other party) had after all developed.
The knowledge, innovation and efforts of these communities are not acknowledged (and indeed are discarded) when the legal ‘intellectual property rights’ systems grant patents on genetic and biological materials and on living organisms to corporations. This injustice is being fought at different levels by farmers, indigenous people and public interest groups. The following are some of the actions by various groups around the world.
Some groups have recently filed legal petitions or test cases to challenge patents already granted.
* In Washington in September 1995, more than 200 organisations from 35 countries filed a petition at the US Patent and Trademark Office calling for the revocation of a patent given to W R Grace company to use a pesticide extract from the neem tree. They argue that the company has wrongfully usurped an age-old biological process used by millions of farmers in India and other countries for generations. The legal challenge is led by the US group Foundation on Economic Trends led by Jeremy Rifkin, with other key petitioners being the Research Foundation for Science, Technology and Natural Resources Policy (RFSTNRP) and the Karnataka Farmers’ Union (both from India), the International Federation of Organic Agriculture Movements (IFOAM), and the Third World Network.
* In Brussels another legal petition was filed in June 1995 at the European Patent Office against a patent it had granted to W R Grace for a method that extracts the neem oil for use in controlling fungi on plants. The three opponents, European Member of Parliament Magda Alvoet, Indian scientists Vandana Shiva of the RFSTNRP, and IFOAM President Herve la Prairie, argue that the patent was wrongly given as the claims for the technique lacked novelty, inventiveness and clarity. The petition argues that the invention is now new as the patented method for extracting neem oil is a standard method used for many decades, whilst the anti-fungi effects of neem oil have been known in India for centuries and thus cannot be considered a ‘discovery’ as claimed by the company.
* In March 1995, the Swiss Supreme Court, in a landmark decision, ruled that the manzana variety of the camomile plant may not be patented. It revoked the patent that the Swiss patent office had granted in 1988 to the German pharmaceutical company Degussa/Asta Medica on its manzana variety. The case had been brought to court by a Swiss farmer Peter Lendi, president of the Bio-Herb Growers’ Association.
* In February 1995, the European Patent Office withdrew key parts of a patent granted to a Belgian company (Plant Genetic Systems) and a US company (Biogen Inc.) for genetically engineered herbicide resistant plants. The patent was for plant cells made resistant to glutamine synthetase inhibitors by genetic engineering, and originally covered not only the gene which had been moved from a bacteria to various plants but also all plant cells and plants which contain the gene. After a challenge by Greenpeace, the Patent Office’s Appeal Board ruled the patent may only cover genetically engineered genes and plant cells but cannot extend to a whole plant, its seeds and future generations of plants grown from the cells. The decision seems to imply that in Europe, patenting of genes and cells is permissible but not of seeds andplants. The limits thus set on patenting will have serious implications for the biotechnology industry.
Meanwhile, there have been activities by many different groups, including farmers, indigenous people, parliamentarians, religious leaders, and NGOs opposing the patenting of all life-forms, or living things. In India, farmers’ movements led by M D Nanjundaswamy of the Karnataka Farmers’ Union, are campaigning against the patenting of seeds and plants and the operation of foreign grain companies in the country. In 1993, half a million farmers rallied in Bangalore to protest against the implications of the Uruguay Round treaty on intellectual property rights, which opens the door to patenting of genetic materials, seeds and plants.
*Indigenous peoples’ groups have held regional meetings in South America, Asia and the Pacific, to voice their opposition to the granting of patents to companies on plants and their genes. Also, at the UN Women’s Conference in Beijing, 118 indigenous groups from 27 countries signed a declaration demanding ‘a stop to the patenting of all life forms’ which is ‘the ultimate commodification of life which we hold sacred.’ They also demanded that the Human Genome Diversity Project be stopped and a rejection of patent applications for human genetic materials.
Parliaments have joined in the fight by opposing proposed laws that would legalise patents on life. In March 1995, India’s Upper House of Parliament forced the government to defer indefinitely a patent amendment bill to bring the Indian Patent Act in line with the World Trade Organisation’s treaty on intellectual property rights. The bill would have allowed for the patenting of life forms.
Also in March, the European Parliament voted against the European Commission’s proposed directive on ‘legal protection of biotechnological inventions’. The directive would have allowed for patenting of biological materials and microbiological processes, with only some restrictions.
In May 1995, leaders of 80 religious faiths and denominations (including the Protestant, Catholic, Muslim, Hindu, Buddhist and Jewish faiths) held a joint press conference in Washington announcing their opposition to the patenting of genetically engineered animals and human genes, cells and organs. ‘We believe that humans and animals are creations of God, not humans, and as such should not be patented as human inventions,’ they said in a signed statement. The leaders have launched an educational campaign to raise theological concerns over the patenting of life. Religious groups in other countries are also taking up the issue.
Environment and development NGOs have also been increasingly active. Groups like RAFI and GRAIN have been carrying out educational activities and also carrying out lobbying in the Biodiversity Convention. A coalition of 14 United States groups in May signed a joint statement after a conference at Blue Mountain. ‘As part of a world movement to protect our common living heritage, we call upon the world and the US Congress to enact legislation to exclude living organisms and their component parts from the patent system,’ says part of the Blue Mountain Declaration.
The campaign against life patenting is likely to spread, with more actions taken up by public interest groups at national level, and increased networking among these groups.
At international level, the World Trade Organisation and the Biodiversity Convention are two critical fora for setting principles and legal frameworks on the patenting of biological materials and life forms.
The WTO’s trade-related intellectual property rights (TRIPs) agreement will have the most decisive influence over national laws. TRIPs has ambiguous language in its clause on living organisms: patenting of microorganisms is compulsory, plants and animals can be excluded, but protection of one kind or another is required for plant varieties. This clause is up for review after four years, and is already on the agenda of the WTO’s trade and environment committee. The outcome of the review process will be of crucial importance.
The Biodiversity Convention is presently more ‘friendly’, in recognising ‘farmers’ rights’ to their knowledge over the use of biodiversity. The rights of indigenous people are also likely to enter the Convention’s future agenda. The treaty’s references to intellectual property rights is finely balanced between recognising the need to implement IPRs and the need to ensure that IPRs do not block the sustainable use of biodiversity.
The challenge for those campaigning against life patents is to ensure that the WTO does not make it compulsory for member countries to patent living organisms, and to develop within the Biodiversity Convention the case against biopiracy and concrete measures to counter it.
There is an urgent need for an international protocol to protect the rights of human subjects from patent claims and unjust commercial exploitation. In February 1995, a United Nations Development Program (UNDP) supported workshop co-sponsored by the Philippines-based SEARICE came out with a strong demand that “there should be a system of protection and recognition of indigenous peoples’ resources and knowledge, one which conforms to indigenous peoples’ worldview and contain formulas that will prevent the appropriation of ourselves and resources by countries of the North and others.’
“Indigenous peoples are willing to share their knowledge with humanity, provided they are informed how, when , and where it is used.”, they added.
Internationally, the Council for International Organizations of Medical Sciences (CIOMS) oversees regulations governing human genetic research. But CIOMS guidelines does not give special concern on genetic research. It does not cover ethical standards which should prevent researchers from having their integrity distorted and invalidated because they patent life forms for money.
The issue of life patenting must be brought to the attention of the International Court of Justice in the Hague. This means the issue of life patenting can mobilize public opinion and engender political debate at the highest and most visible judicial level.