Pirate patents: arguing for improved biopiracy prevention and protection of indigenous rights through a new legislative model.

• Author: Kelter, Katherine A.

1. INTRODUCTION

   Many common agricultural crops have developed through human tinkering; alteration and experimentation have given rise to food species whose existence depends entirely on humans. (2) The development of these crops has generated specific, traditional knowledge associated with particular species, and this potent combination of genetic material and phenotypic value creates a modernday treasure trove of valuable commercial material. (3) Individual and corporate parties have increasingly sought to collect such indigenous knowledge and capitalize on its value through existing intellectual property patent protections. (4) This practice, known as "biopiracy," evades easy definition; by common consensus, the practice may best be characterized as a form of biological theft, in which plants identified and cultivated by indigenous communities are collected and patented by noncommunity members without granting property protection to the original cultivators. (5) Biopiracy is also viewed as the appropriation of biodiversity from its original owners and innovators through the creative definition of seeds, medicinal plants, and associated medical knowledge as nature, thereby removing the plant materials from patent eligibility. (6) This definition combines a variety of loosely associated but poorly defined notions of biopiracy, demonstrating the difficulty in identifying the practice. (7) The derivation of genetic and biochemical materials is both scientifically and commercially valuable, and companies attempt to patent these materials to "justify legal ownership through intellectual property law." (8) Additionally, the lack of agreement over the actual subject matter of the patent, namely the plant versus the traditional knowledge with which it is associated, further confuses the issue. (9) "Biodiverse" developing countries have accused their developed Western counterparts of removing genetic resources and the traditional knowledge with which they are associated and patenting these resources in their original forms or in the form of derived inventions. (10)

   The biopiracy conflict surfaces in part because there is no global consensus about who owns plant genetic resources and what global rights, if any, the indigenous innovators have. (11) Intellectual property rights, including copyrights, trademarks, patents, and trade secrets, constitute governmental protections of individual innovation and creativity. (12) Patent law in the United States provides particularly critical protection to agricultural intellectual property and hinges on the principle that inventions, not discoveries in nature, are patentable. (13) American patent law has historically honored this distinction through the Plant Patent Act (PPA) of 1930. (14) Additionally, the regulations of the United States Patent and Trademark Office (USPTO), in connection with patent case law, expand upon the PPA's statutory requirements, conferring upon the patent holder the right to exclude others from making, using, offering for sale, selling, or importing inventions into the United States. (15) In sum, these laws merge to create a broad patent regime that promotes the creation and protection of invented and discovered patentable material. (16) other countries have attempted to comply with international intellectual property requirements by passing their own domestic legislation protecting their patentable natural resources. (17)

   The international community has attempted to set threshold guidelines for protecting intellectual property rights, primarily through the 1994 Agreement on Trade-Related Aspects of International Property Rights (TRIPS). (18) TRIPS attempts to harmonize national standards for intellectual property protection by aligning its recommendation for an international norm with the methods currently employed by developed nations. (19) Further biological protection measures are enumerated in the International Convention on Biological Diversity (CBD), adopted in 1992 at the United Nations Conference on Environment and Development in Rio de Janeiro, Brazil. (20) The CBD may be considered the preeminent treaty on biodiversity conservation and addresses the concern of developing countries' control over the genetic resources within their borders. (21) The CBD emphasizes the respect, preservation, and maintenance of traditional knowledge while encouraging equitable sharing of the benefits of its use. (22) Its provisions are intended to protect indigenous communities in the least developed countries, which are particularly vulnerable to intellectual property infringement because their traditional knowledge systems are typically collective and run contrary to the individualistic focus of Western property regimes. (23)

   Modern patent law lacks accommodation for indigenous knowledge and two primary reform movements have appeared to compensate for this legal gap: modification of current patent law and the creation of new laws, sui generis. (24) Some scholars have opined that although biopiracy in developing countries is a real concern, these countries lack the ability to address the issue without outside assistance. (25) Similarly minded scholars have recommended shared ownership of patents, in which the local producer and the outside prospector can share the intellectual property rights of the plant. (26) Ultimately, however, none of these approaches elaborate on the process required to prevent and compensate for instances of international biopiracy. (27)

   This Note traces the rise of biopiracy and the domestic and international approaches to remedying its impact. Part II.A explores the roots of biopiracy and defines it culturally in the global sphere. Part II.B presents three biopiracy case studies from their origins through their resolution. Part II.C examines current domestic and international regulation pertaining to the protection of intellectual property rights, as utilized in the three test countries involved in the sample case studies: the United States, Mexico, and India. Finally, Part III evaluates the varied approaches to protecting biological diversity and presents a sample legislative model to indigenous communities for remedying the effects of biopiracy.

2. HISTORY

   1. Biopiracy Defined

      A vast range of plant utility has been recognized and cultivated since the dawn of man. (28) Ten thousand years of cumulative intellectual inventions and improvements by human beings have resulted in stronger, healthier, and higher-yielding plants. (29) These plants have been coaxed into foods, flavorings, spices, medicines, cosmetics, fabrics, and dyes, among others. (30) This trend toward human intervention has occurred in the agricultural development of plants, frequently resulting in crops unable to function without continued cultivator involvement. (31) As trade has expanded around the globe, sovereign states have increasingly sought new sources of plants and other biological resources, not only to address the needs of their growing populations but also to maximize their profits in new trading spheres. (32) A modern term, "bioprospecting," has arisen to describe a long-established discovery practice. (33) Bioprospecting encompasses the protection, collection, research, and development of biodiversity, in conjunction with reliance on local communities to facilitate the search for resources. (34) Bioprospecting and biopiracy have occurred in developing nations for decades because biologically diverse areas located in these nations are "goldmines of potential economic gain." (35)

      Bioprospecting should properly be distinguished from biopiracy--a practice that connotes a misappropriation of the biocultural resources of indigenous peoples through traditional intellectual property mechanisms. (36) Bioprospectors utilize biological resources as the basis for extracting, isolating, and purifying patentable genetic products. (37) Conversely, biopirates obtain and utilize genetic resources without compensating the traditional owners for that knowledge or seeking their consent for the use. (38) This failure to recognize and compensate indigenous peoples for creations arising out of their biocultural resources is a key feature of biopiracy. (39) Biopiracy has been viewed as a form of thievery, perpetrated against indigenous cultures and performed at the expense of the resources' countries of origin, which might otherwise protect and commercially profit from them. (40) Upon recognition of the pirated material as patent eligible, the biopirate reaps the commercial rewards of its patentability by claiming ownership. (41) No global consensus currently exists over who owns plant resources and what rights should be accorded to indigenous communities for the use of their resources by outsiders. (42)

      The disconnect between Western notions of knowledge ownership and indigenous attitudes toward bioculture and traditional knowledge contributes to this uncertainty. (43) Generally, indigenous knowledge encompasses a strong common heritage with communal sharing of traditional farming practices and plant cultivation techniques. (44) These traditions, underscoring a less aggressive or even nonexistent plant monopoly regime, may be contrasted with the practices of developed nations and their more aggressive grants of expansive plant rights. (45) Western patent regimes recognize traditional biocultural knowledge as occurring in the public domain and therefore freely usable by the public, lying in stark contrast to the indigenous conception of traditional bioculture as the heritage of those communities who have maintained them for centuries. (46) This disconnect widens over the nexus between ownership and compensation. (47) Upon granting of the patent, ownership disputes can result in farmers being unable to grow their traditional crops without first paying royalties to the patent holder. (48) Seeds in particular are a source of conflict between developing and developed...