The problem with Biopiracy in Peru

OMC Abogados - Peru, being one of the most biodiverse countries in the world, has been fighting for a long time against one of the phenomena that most affects both the safety of our native and emblematic products and resources, as well as the ancestral knowledge of indigenous peoples: Biopiracy.

Biopiracy is defined as the unauthorised, illegal and irregular access and use of biological resources and their components or the traditional knowledge associated with them for their application in research and development processes for new products. This practice occurs especially when a third party, by means of invention patents, seeks to achieve a direct or indirect appropriation of these resources and knowledge, without the prior informed consent of the country of origin of the resource or of the indigenous people holding rights over the knowledge, respectively, and without providing any kind of compensation to said country or indigenous people.

Currently, the National Commission against Biopiracy, created on 1 May 2004 and chaired by the National Institute for the Defence of Competition and Protection of Intellectual Property - INDECOPI, is the institution in charge of the promotion, protection and defence of biological resources and traditional knowledge in our country, which to date has identified 33 cases of biopiracy in the world related to biological resources of Peruvian origin, of which 18 have been resolved favourably for our country.

According to information from the Commission, Peru possesses 4,400 native plant species, of which 1,200 have medicinal use, which is why it is not surprising that most of the cases of biopiracy found in the world are patent applications for pharmaceutical compositions. Although it is true that technically no country can patent a plant or plant species, because they belong to nature and man has only discovered them, if they are manipulated or special properties are discovered in them, protection through invention patents or similar figures, such as plant varieties, is viable.

Since ancient times, the native and indigenous communities of Peru have known how to take advantage of and apply the multiple medicinal properties of our country’s plant species, a knowledge that has been passed down from generation to generation and has been enriched over the years. This traditional knowledge means enormous savings in research and investment for pharmaceutical companies, as it tells them which species are most useful and which can be developed into new medicines.

For example, among the cases that the National Commission Against Biopiracy has been defending abroad is a patent application filed with the Intellectual Property Office of the Philippines called "A composition for enhancing male libido", a pharmaceutical composition comprising a combination of extracts from plants such as Maca, Huanarpo Macho and Chuchuhuasi, plant species that have always been considered an aphrodisiac by the natives and have been used by them for the treatment of sexual dysfunction in men. It is clearly evident that this is a patent based on native biological resources and traditional knowledge, and as the applicant has no authorisation to use them, he is committing an act of biopiracy.

Similarly, before the State Intellectual Property Office of the People’s Republic of China, the National Anti-Biopiracy Commission has filed oppositions to patent applications for a product whose composition contains extracts of Maca and Cistanche, which are used as an energiser, and for a product composed of Sacha Inchi husk extract for the treatment of hypertension, and has also managed to have a patent filed at the Japanese Patent Office for the use of Yacon, a plant that grows in the Andes and is used to treat diabetes, abandoned.

These cases, among others, only highlight the seriousness of the problem of using invention patents, which should be the legal way to protect the rights gained as a result of hard work and research, as a form of illicit exploitation of natural resources that are part of a country’s culture.

Traditional knowledge held by indigenous peoples is a form of human creativity whose recognition and legal protection should be no less than that of other new intellectual property objects such as plant varieties or software.  However, this does not mean that the use of this knowledge should be prevented, as it is a valuable contribution to science, but that this use should be legal and benefit the sustainable development of the country and even more so that of indigenous peoples.

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