Out of Nature: Why Drugs from Plants Matter to the Future of Humanity

7. Learning to Coexist

143 7 Learning to Coexist Hoodia gordonii, a succulent native to southern Africa. the discovery and development of new plant-based drugs are imperative to the advance of medicine and the improvement of human health. But the process of identifying and characterizing new plants and plant compounds, and the subsequent development of compounds into commercial entities, is an ethically and legally 144 out of nature conflicted area of research, mainly because it treads on the territory of traditional knowledge. Since the mid-1960s, various laws have been enacted to protect the folklore, arts and crafts, and traditional knowledge of indigenous peoples from exploitation. A precedent was set by the African Intellectual Property Organization (OAPI) agreement of 1977, which declared traditional medicine and knowledge passed from generation to generation within any African ethnic community to be property of the community. Ever since, traditional knowledge and intellectual property laws have repeatedly found themselves in conflict. Controversy over bioprospecting and the development of drugs is intimately associated with intellectual property laws. Between countries , laws dictating what can and cannot be patented vary. Inventions are broadly considered a form of intellectual property, and as such they are generally granted protection under patent law. The intention of patent laws is to provide incentives for inventors, encouraging new inventions, perpetuating the invention cycle. Patents provide a mechanism whereby inventors disclose information about their work, making known to all the existence of the invention and the details for how it can be copied. In return for disclosure, inventors receive patent protection for a designated period of time, during which they are free to profit from their inventions. But the process isn’t perfect , and in some areas of science, patents may actually hinder invention , rather than act as a motivating force. The rippling effects of this are felt to an exponentially greater degree in developing countries, where the extraction of local natural products and knowledge by patents awarded to researchers from wealthy countries has crippled cultural heritage and creativity. Attempts to secure patents on natural entities originated with Louis Pasteur in 1873, when the US Patent Office awarded Pasteur ownership over a strain of yeast employed in beer making. In 1937 Pasquale Joseph Federico, head of the US Patent Office, stated that Pasteur’s award likely would not have been granted by the office during his tenure, “since it may be doubted that the subject-matter is capable of being patented.” This, however, came only shortly after the Plant Patent Act of 1930, which allowed asexual, cultivated plants, with the exception of tubers, to fall under the protection of patents. But Frederico was not alone in his aversion to the notion of Learning to Coexist 145 someone bearing ownership over nature. Up until the Plant Patent Act, it seemed to have been assumed generally that plants were not patentable things. Even during all the years that passed between the Patent Act of 1793 and the Plant Patent Act of 1930, there was only one application submitted for a patent on plant material. Seeking protection for a fiber from the needles of a pine tree, the application was denied. But the ability of scientists to invent new types of organisms from existing ones has presented significant challenges to patent law. Patents sought on living organisms became an increasingly contentious issue throughout the last century. In 1970 the floodgates broke in favor of plant patents, when sexual plant cultivars became eligible for protection, a measure followed several years later by the first patent on plant seed. These developments, however, were overshadowed in 1980, when the ruling given in the Supreme Court case Diamond v. Chakrabarty opened the door to patents on human-made organisms . This resolution arguably altered the course of science. The ability to engineer an already existing life-form into a profit-making asset sparked an upsurge of activity in the biotechnology industry. The Chakrabarty case now is perhaps more infamous than famous. Ever since the ruling, patents have been filed for everything from genes to genetically modified organisms. Protection for new types of plants invented through breeding techniques is now guided by a distinct set of international intellectual property laws. Under US statutes, invention or discovery is patentable, as long as it is “nonobvious” and has utility. Genes, natural products, and other natural substances that have been isolated and purified are candidates for patent protection only if they have a legitimate use. Without this, patent rights will not be granted. The utility element is a controversial...