In re patenting Ecuadorian plants

Mike Salovesh (t20mxs1@CORN.CSO.NIU.EDU)
Mon, 1 Jul 1996 22:02:45 -0500

Yesterday's Digest brought a story out of Ecuador that somebody has
"patented ayahuasca", a plant which is used in traditional indigenous
medicine. We, as anthropologists, are asked to join in blocking this
allegedly nefarious act.

Which is all very well, but the story is based on an impossibility
and is shot through with misunderstandings.

Of course the misunderstandings in this case cut both ways. It is
incredible that a U.S. representative is alleged, according to the
article, to have said something like "Well, the Indians have the same
access to the patent process as anybody else: If they think their plants
are so important, why don't THEY patent them?" Now that's STUPID. I
don't mean that it's impossible, on its face, that a representative of the
U.S. government could have said such a thing. I simply mean that if
somebody did say that they probably deserve a prize for multilevel,
multimedia idiot of the year. There's no need to tell Anthro-L why, or to
belabor the point.

What I want to look at is the other side of this coin. The story we were
treated to expresses a semi-hysterical fear that nobody in Ecuador will be
able to use Ecuadorian plants in Ecuador for traditional purposes. That
is sheer hogwash.

There have been several recent cases where people have accused
geneticists, biologists, and at least one anthropologist, all from the
U.S., of stealing somebody's precious genetic heritage to the utter and
permanent damage of the "victims". That's an easy way to whip up
anti-U.S. sentiment, since all you have to do is combine arcane biology
without giving readers a chance to understand the underlying issues with a
threat to the rights of downtrodden "natives" facing brutal imperialism.
Neat cheap shot.

But you can't just get a patent on a plant because you have acquired the
knowledge that it might be useful. What gets patented, essentially, is a
process for extracting an active principle from the plants -- or for
whipping up a chemical equivalent through a laboratory or factory process.
The wild plant, as such, is still not patentable under U.S. law.

Patent law is the most arcane field in all of jursiprudence. Even the
Commissioner of Patents grasps only part of it. Personally, I am
convinced that it is bad policy, bad law, bad science, and bad business
that part of our government approves of the idea of patenting living
organisms. The whole idea is repugnant on its face. Even so, apparently
the only living organisms that can be patented are those that have been
altered by human intervention: transgenic mice, for example.

When I say "part of our government approves" I'm also saying that
other parts of our government are strongly opposed to such patents.
Right now, the whole question is up for grabs HERE. God knows what the
international ramifications may turn out to be if, as, and when
the whole business gets settled as an internal question in the U.S.

One thing is sure, though. The story we've just read from Ecuador
barely scratches the surface of this question. It leaves out
just about everything you'd have to know to figure out what's
going on in the two cases they say they're worried about.

Okay, the story is based on the fact that one "Loren Miller,
integrante de la International Plant Medicine Corporation, obtuvo la
patente (PPA) N:5751, en la Oficina de Marcas y Patentes de los
EE.UU." Well, rooty toot toot: somebody cited a patent number.
What's the patent for? What does it have to do with ayahuasca?
That patent number makes us no better informed that we would have
been if the author of this story had not mentioned the number at all.
It's flashy, but it doesn't mean the writer did his homework.

I worry about anyone who tries to impress me with spuriously precise
but still meaningless figures, anyhow. The story says "en el pais
existen de 20 a 25 mil especies de plantas vasculares, 324 especies de
mamiferos, 1.559 de aves, 409 de reptiles y 402 de anfibios." What?
1,559 species of birds? Really? Not 1,558 or 1,560? You're SURE???
I wouldn't bet my pocket change on a single one of those figures!
We -- the world -- really don't know what's out there in Amazonia,
where the taxonomists have only begun to explore in depth. All it needs
is just a little more hysteria and nobody will ever be allowed to find
out, either.

=======================

Actually, this story touches on some very interesting anthropological
questions. Unfortunately, it doesn't face them. In its most basic form,
the toughest question is what do we mean when we say the Framizis "know"
this or "believe" that?

Yesterday, I demonstrated that one USean can do some basic repairs on a
computer. I had to: it was acting up and I had work to do and my favorite
repairman doesn't work on Sundays. Do "Americans" know how to do things
like that by virtue of being "Americans"? After all, a majority of us
have never touched any part of a computer -- not even a keyboard. In
commenting to a friend on my triumph over mechanico-electronic adversity,
I did say that it would have been easier if I had known what I was doing
instead of having to figure it out from scratch. Need I add that there
are some specialists out there who really do know what they're doing when
confronting a malfunctioning computer? Is THEIR knowledge the common
property of everyone here? Then why do I have to pay a specialist for
fixing those things I can't fix?

So the story reports on a pharmaceutical company sending somebody
out to interview a curandero. How much of a curandero's knowledge
belongs to whom? Is *everything* a curandero knows somehow the
property of everyone in his society? Then why are curanderos
paid for running curing ceremonies? Conversely, does the curandero
have the *right* to sell precious knowledge he gained because he is
a participant in the culture of his community? Does somebody who
works in the Pentagon have the right to sell precious military
knowledge, and to whom? Is there any fair comparison?

I'm asking tough questions. I don't really know how to answer any of them
definitively. Until I do, don't look for me on the barricades fighting
against the theft of cultural patrimony via a process of granting patents.
Not with only the information we were given yesterday. A half-baked
allegation in a story that omits nearly all the facts essential to
rational judgment just doesn't move me.

Here's something real to worry about instead. There has been almost no
reaction in U.S. media to last week's stories from Washington admitting
CIA involvement in torture and murder in Guatemala, on a systematic basis,
for many years. That's not a hypothetical possible difference in cultural
attitudes toward the meaning of "intellectual property". That's downright
criminal. My *government* just said, on the basis of a lengthy
investigation, that this nation has been complicit -- once again! -- in
systematic crimes against humanity. And the media have largely ignored
the story. Now THAT is something to worry about!

--mike salovesh, anthropology department <salovesh@niu.edu>
northern illinois university PEACE !