Terra Nullius of the Mind: Indigenous Knowledges, Biopiracy and Patent Law

Simon Greenacre*

The neem tree is one of the most sacred trees in India, occurring indigenously through most parts of the Subcontinent. Various parts of the tree have been useful to Indians since time immemorial, as a pesticide, contraceptive, fuel and construction material. In Persian, the neem is known as azad darakht-i-hin, “the free tree of Hindustan”, in Sanskrit, sarva roga nivarini, “the curer of all ailments”, or in Arabic, shajar-i-mubarak, “the blessed tree.”

Neem products contain useful compounds that are easy to use. Traditional techniques for extracting the seed oil (used as the basis for a traditional fuel, spermicide, and insecticide) do not require expensive equipment. Neem wood is chemically resistant to termites, and makes a useful and easily obtainable building material.

Neem is not only useful to people in India or Pakistan or Iran. Biotechnology firms from industrialised countries have been isolating the many useful bio­chemical compounds of the neem since the late 1970s. Since 1985, US, Japa­nese and European firms have been obtaining US patents on some of the most commercially valuable compounds.

Why is the neem of interest to us? The key issue here is property rights. Neem and its unique biochemistry cannot be patented in India and has been public property across the subcontinent for many generations. When a neem-derived compound is patented in the US, or Europe, or Australia, its original custodi­ans are denied its commercial benefits. Not only that, but they also become the latest victims in the privatisation of the biotic commons.

This process, which has become an integral component in the global diffusion of neoliberal values, does not only threaten peasant communities, but also in­digenous people living in forest, mountain, desert and marine ecosystems across the globe. It is sanctioned by law, taking place within a multi-dimensional legal framework of patent law which includes not only the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs), but also in­creasingly globalised national patent law regimes, such as that in the US.

Post-colonial countries from Brazil to Australia continue to grapple with the enduring legacy of the legal principle of terra nullius, which legitimated the invasion and seizure of indigenous lands and the destruction of indigenous lives and cultures in many developing countries. The neem example evinces a new wave of expropriation, which Shiva calls the “terra nullius of the mind”.1 If national and global patent law regimes are not reformed, white-coated biotechnologists and suited bankers may replace the explorers and conquista­dors of old.

"If national and global patent law regimes are not reformed, white-coated biotechnologists and suited bankers may replace the explorers and conquistadors of old"

Other articles in this issue have examined the ways in which TRIPS and the

global intellectual property framework impact upon the lives of millions in developing countries. This article attempts to define the knowledges2 affected by biopiracy (referred to as “indigenous knowledges”). It explores the ways in which the production, custodianship and application of these knowledges dif­fer from the forms of knowledge protected by developed-country patent laws. In particular, it focuses on US patent law to elaborate its failure to protect indigenous knowledges like that of the neem.

Patent and the evolving global IP framework

Patents play an integral role in the industrial develop­ment and production of knowledge, particularly in the post-industrial “knowledge economies” of the North. Philosophically, patent regimes are underpinned by a de­sire to balance competing objectives. On one hand, patent regimes aim to provide a greenhouse for the growth of new, potentially useful knowledge, by providing its de­velopers with rights to ensure that they can obtain a financial return for their investment of time, money and effort. This goal must be balanced against the competing need to ensure that the technological, economic and so­cial benefits of new knowledge are able to permeate as widely as possible through society. Consequently, patent regimes have traditionally provided limited rights to in­ventors, and then only for limited periods of time.

Image by Bill MaddenThese goals are admirable: responsibility for much of the North’s post-indus­trial revolution in technological and economic development can be attributed to patent regimes. It is the way in which dominant patent regimes operate in practice which poses problems for indigenous peoples around the world. More specifically, and perhaps problematically for students of law, this problem is rooted in cultural difference. Patent law as we know it generally seems to work quite effectively in industrial and post-industrial societies, where knowledge production is highly integrated, driven by the quest for individual profit, and underpinned by cultural norms of individual ownership and alienability. What happens when these laws are applied to indigenous communities with quite different cultural norms, which often lack what we would call “law”?

The intersection of indigenous knowledges and Western firms: biopiracy

The liaison of scientific endeavour and indigenous knowledges at the edges of the known legal world has given birth to a strange pair of children: bioprospectors and biopirates. The Rural Advancement Foundation defines bioprospectors as those whose goal is “the exploration, extraction and screening of biological di­versity and indigenous knowledge for commercially valuable genetic and biochemic resources.”3

Like the explorers of old, bioprospectors expand the limits of Western knowl­edge by venturing into uncharted scientific territory. And like the ancient ex-

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plorers, discovery is not their only creed. The brother of the bioprospector is the biopirate, who participates in the industrial practice of patenting products based in part upon traditional knowledge or genetic resources contained in traditional [plant or animal] varieties without providing compensation or rec­ognition.4

While the object of the bioprospector may be discovery, the biopirate pursues conquest - the appropriation of biotic resources from indigenous and marginalised groups for commercial gain. Where, as Downes argues, biopiracy “often pits a highly privileged group against one of the least privileged”5, the moral terrain is reasonably well-defined. However, biopiracy occurs in what could only be described as a legal vacuum. The following section will examine Western patent law and some of its philosophical underpinnings. First, some preliminary ques­tions should be raised.

How can knowledge which resides in the public domain be protected from appropriation by corporations whose profitability depends on the privatisation of knowledge? Even where knowledge is held by a particular indigenous group in a localised way (for example, a particular biomedical remedy based on a geographically confined plant product), if this knowledge is utilised by biotechnologists, how should any compensation payable to the original custo­dians of the knowledge be distributed? Should it be directed to the individual custodian of the knowledge? And what of the situation where an indigenous group may not even have access to, or knowledge of, the market economy? These are all questions which patent law struggles to address adequately.

"How can knowledge which resides in the public domain be protected from appropria­tion by corporations whose profitability depends on the privatisation of knowledge?"

Indigenous knowledges

The 1993 Mataatua Declaration on Cultural and Intellectual Property Rights6 defined traditional knowledges broadly, to include the customs, folklore, prac­tices and lifestyles of indigenous peoples. In the context of patent law, this can include food plants variegated over many generations (such as Punjabi basmati rice variants), or knowledge of the herbicidal properties of endemic plant spe­cies (such as neem), or knowledge of herbal medicines (such as the rosy peri­winkle of Madagascar). These are knowledges which may7 have been developed over centuries, not for profit but for sustenance.

The application of these knowledges is not what makes them problematic. It is the way in which their development and custodianship differ from those of knowledges produced and owned in developed countries. While it would be a mistake to over-generalise, some broad comments can be made about the nor­mative structures underpinning indigenous knowledge systems.

Indigenous knowledges are often contained within relational custodial systems. In many cases, no one person has responsibility, or even possession, of knowl­edge resources. Rather, knowledge about a particular plant remedy may essen­tially reside in the public domain, able to be used by a whole community or a whole country. Rather than being private property, as in developed countries, these knowledges are often public goods. In his discussion of indigenous knowledges, Blakeney comments that:

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"patent law embodies a delicate balancing act

performed by the state: fostering knowledge produc­tion on the one hand...and on the other, ensuring that

the knowledge produced remains free enough to be

useful to society."

indigenous people do not view their heritage as property at all — something which has

an owner and is used for the purpose of extracting economic benefits - but in terms

of community and individual responsibility [author s emphasis] .8 Conversely, one person, rather than many, within an indigenous group, may exercise custodial control over a piece of knowledge. Although that person may be able to exclude others within the group from accessing the knowledge, this possessory right may not extend to the right to alienate the knowledge. While a private individual may possess the knowledge in question, this right can only be exercised in the context of public responsibilities:

Alienation is contradicted by the concept of immutable communal property. Exploi­

tation is subject to cultural restraints and taboos. Incentivisation also has to yield to

concerns about spiritual adulteration.9In many cases then, indigenous knowledges do not reside within highly centralised, well-resourced institutions, but are distributed widely across in­digenous communities in production and application. In this respect their na­tures differ dramatically from the knowledges which developed country patent law has evolved to protect.

Patent law and developed country conceptions of property

Blackstone memorably commented that property is the “sole and despotic do­minion” of its owner.10 This encapsulates neatly the conceptual framework within which Western patent law has evolved. A patent was originally an assignable right to a monopoly over production of certain goods.11 This right was, and is, inherently state-based; not only is it conferred by the sovereign, but it is also enforced and protected by the machinery of the state. Moreover, patent law embodies a delicate balancing act performed by the state: fostering knowledge production on the one hand, by upholding a system where inventors earn fi­nancial rewards for the knowledge they produce and market, and on the other, ensuring that the knowledge produced remains free enough to be useful to society.

Patent law has been a relatively effective way to achieve conflicting societal ob­jectives. However, something that is not sufficiently acknowledged by those who espouse the globalisation of patent law, is that it is only useful in protect­ing a very limited range of knowledges. It relies for its enforcement on the coercive powers of the modern, post-industrial state - an institution which has seldom been the friend of indigenous peoples. It rewards those who produce knowledge for profit, not those who seek to protect their heritage from appro­priation. It has evolved to uphold a very narrow conception of property.

US patent law embodies these weaknesses. It is also central to the problem of indigenous knowledges. US biotechnology firms produce a large proportion of the worlds pharmaceuticals and dominate the worlds biotechnology markets. They bioprospect under the protective umbrella of the US patent regime, which often follows them around the world. This does not only mean that US patent law can directly impact upon indigenous knowledges. It also means that US patent law is becoming increasingly influential in jurisdictions around the world. This section will examine US patent law in some depth, to demonstrate the ways in which it facilitates biopiracy.

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In order to obtain US patent protection under the US Patent Act (1988), an applicant must demonstrate that the subject of the putative patent exhibits novelty (§ 102(a)), non-obviousness (§ 103), and utility (§ 101). The key elements of this three-part definition are novelty and non-obviousness.

In Graham v John Deere Co}2, the US Supreme Court found that to satisfy the non-obviousness requirement, an invention must be a significant departure from the “prior art.” In the case of Application of Bergstrom15, the US Court of Cus­toms and Patent Appeals found that the newness requirement of § 101 would be satisfied if, within the meaning of § 102, the substance or process in ques­tion had not already been available or known to the public prior to the patent application. There is a strong line of reasoning which states that if a substance, such as pine fibre or cellulose, is naturally available in pure form, it will not be patentable because it is not novel.14 However, if the substance or compound is found in nature, but not in pure form, a purified form of the substance will be sufficiently novel to obtain protection.15

In assessing novelty, a US court will consider such second­ary factors as whether the isolated or purified form of the compound has more therapeutic or commercial value than the naturally-occurring form,16 or the extent to which the new compound is new to the marketplace.17 One index of the marketplaces knowledge is publication. § 102(a) states that a patent will not be issued if the putative invention was “described in a printed publication...before the in­vention thereof by the applicant for patent.”

This affects indigenous knowledges in two ways. Often passed from generation to generation in oral rather than textual form, indigenous knowledges will often fail to sat­isfy the publication test, despite being widely known within a given community. This allows courts to overlook the uses of indigenous knowledges which are not published in docu­mentary form. T j , n iJ Image by Anna Boucher

Perhaps more importantly, where details of indigenous knowledges are pub­lished in periodicals, the publishers are usually anthropologists, ethnobotanists or ethnopharmacologists, rather than the knowledge custodians themselves.18 Indigenous knowledge custodians do not enjoy the same access to this resource as their industrialised-country counterparts, helping to produce Shivas intel­lectual property terra nullius.

This formulation is reasonable in the sense that a patent, as a monopoly right, is integrally linked to the marketplace. It therefore seems logical to base such a right, within a given market, on the extent to which the subject of that right is an extension of the market s knowledge of it. On the other hand, despite recent developments, such as TRIPs in the global intellectual property framework, intellectual property markets remain demarcated by state boundaries. So while the products of the neem tree may be well-known within India, they may not be known as a marketable commodity within the US. This was one of the

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reasons why it was initially relatively simple for W Grace to obtain US patent protection for its neem-based pharmaceuticals.

The other problem with the principle of non-obviousness and novelty is that while a natural, or near-natural plant-based product of indigenous knowledge may not have sufficient commercial value to attract patent protection, even such a small a step as the isolation of its active ingredients may. This is particu­larly apparent in the context of the prior art, where US courts have progres­sively narrowed the definition of “natural”, enlarging the subject matter of patent protection.

In the landmark US Supreme Court decision in Diamond v Chakraharty19, the US Supreme Court made a crucial distinction between “products of nature” (which were not patentable), and “human-made inventions” (which were).20 This fine distinction recognised conflicting US authority. In the case of Cochrane v Badische Anilin & Soda FabriiP1, it was found that if a substance is naturally found in its pure form, then it will not be patentable. However, in the case of Parke-Davis & Co. v H.K. Mulford & Co.22, a compound was found in nature, but as it was impure, its purified form was sufficiently novel to attract patent protection.

"In large part, the legal framework which underpins

this terra nullius of the mind is also manifested in

the global intellectual property regime"

This distinction, read in combination with the law of the prior art, means that, while a highly engineered pharmaceutical product and a low-tech traditional herbal remedy may be based on the same active compound, the traditional remedy will only attract patent protection if it has been sufficiently removed from its natural form. The problem here is that, in a body of law dominated by large biotechnology firms, the purification/modification bar may be raised so high that only the application of an industrial process to a compound will satisfy the legal test.

International agreements

In large part, the legal framework which underpins this terra nullius of the mind is also manifested in the global intellectual property regime. Article 27(1) of TRIPs provides that “any inventions” will be patentable, provided they “are new, involve an inventive step and are capable of industrial application.” This wording essentially replicates the principles underpinning US patent law.

TRIPs articles 27(2) and 27(3) provide a number of exclusions, including pub­lic morality and ordre public, under which national governments may exclude inventions from patentability. These exceptions are expressed broadly, however, in practice, they provide little protection for indigenous knowledges. There are two main reasons for this. One reason is that indigenous groups and peasant farmers seldom enjoy constructive relations with central national governments, especially where foreign investment and natural resources are involved. A sec­ond reason is that the decision of one government not to allow the patenting of indigenous knowledges found within its own borders will not stop multina­tional biotechnology firms from obtaining patent protection within another jurisdiction. TRIPS enshrines the principle of national treatment - patent de­cisions are still made by national, rather than global authorities.

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What is to be done?

Clearly, custodians of indigenous knowledges face not only political, but sig­nificant legal challenges to maintaining and protecting their intellectual prop­erty. Patent law has been slow to respond to the challenges posed by the globalisation of knowledge-intensive scientific and commercial enterprise. Many indigenous knowledges cannot be commodified, falling outside the traditional patent paradigm of industrialised, capital-intensive knowledge production. Their extensive, rather than intensive, distribution across custodial groups defies the patent lawyer’s focus on possession and ownership. Custodians of indigenous knowledges lack the political and financial resources to access the slim protec­tive legal resources available to them.

Patent law must be reshaped to address these problems in order to protect the integrity of indigenous knowledges and the interests of poor and marginalised people throughout the world whose only resource is their knowledge. Patent law is only one of a number of bodies of law, both national and global, which must be made to respond to the challenges of globalisation - not only economic globalisation, but more importantly, cultural globalisation. Law can and should play a role in mediating cultures.

Endnotes

*Final year student, University of Sydney Law School.I Vandana Shiva, Biopiracy: The Plunder of Nature and Knowledge (Boston: South End Press, 1997) at 2.21 use the plural form to approximate the diversity of knowledge which is approximated

under the label “indigenous knowledges”.3 Rural Advancement Foundation, “Bioprospecting/biopiracy and Indigenous Rights,”

<www.latinsynergy.org/bioprospecting.htm> (accessed 23 April 2001).4 David R. Downes, “How Intellectual Property Could Be a Tool to Protect Traditional

Knowledge,” (2000) 25 Columbia Journal of Environmental Law 253 at 263.5 Id at 278.6 First International Conference on the Cultural and Intellectual Property Rights of

Indigenous Peoples, 12-18 June 1993, Whakatane, New Zealand.71 use the conditional mood to avoid what could mistakenly be interpreted as normative

statements, and to acknowledge the inherently deductive nature of this project.8 Michael Blakeney, “The Protection of Traditional Knowledge under Intellectual Prop­

erty Law” (2000) 22(6) European Intellectual Property Review 251 at 252.9 Ibid.10 Quoted in Frederick G. Whelan, “Property as Artifice: Hume and Blackstone,” (1980)

XXII Nomos 101 at 118.II K. Boehm, The British Patent System. Volume I: Administration (Cambridge: Cam­

bridge University Press, 1967) at 16.12 (1966) 383 US 1.13 (1970) 427 F 2d 1394.14 Cochrane v Badische Anilin & Soda Fabrik 111 US 293 (1873).15 Parke-Davis & Co. vH.K. Mulford & Co. 196 F. 496 (2d Cir. 1912).16 Merck & Co. v Olin Mathieson Chem. Corp. 253 F. 2d 156 (4th Cir. 1958).17 Parke-Davis & Co. vH.K. Mulford & Co. 196 F. 496 (2d Cir. 1912).18 Michael J. Huft, “Indigenous Peoples and Drug Discovery Research: A Question of

Intellectual Property Rights,” (1995) 89 North Western University LR 1678 at 1718.19 (1980) 447 US 303.20 Ibid 313.21 111 US293 (1873).22 196 F. 496 (2d Cir. 1912).

"Law can and should play a role in mediating cultures."

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