Bioprospecting refers to the practice of isolating medically useful active ingredients from traditional indigenous medicines around the world or from previously unutilized plants, both usually in developing countries, and both usually (though not necessarily) by agents of multinational pharmaceutical corporations or academic research units. Critics often employ a more loaded and hostile term for this practice: biopiracy. They argue that it robs traditional societies in poor countries of a heritage of genetic resources and medical knowledge which could be used for their economic development. Bioprospecting companies themselves retort that what they are doing creates needed medicines and saves lives.
The practice follows a fairly standard legal course. Researchers identify an indigenous herbal medicine that is surprisingly effective; they then harvest samples and conduct the laboratory analysis necessary to identify the active ingredients and, potentially, how these ingredients produce the desired effects. They then file for a patent on the purified medical ingredients. Note that bioprospecting does not actually involve getting patents on plants themselves; in general, a patent on a life form can only be obtained if it has been specifically genetically engineered and bred in a laboratory setting (and that too is controversial, but a subject for another day). Instead, bioprospecting leads to patents on the purification process, and on the resulting medical ingredients.
Patent law is a well-established field, and the process is generally regarded in developed countries as legal and aboveboard. However, development advocates and critics of intellectual property often argue that bioprospecting is nevertheless robbing poor countries of genetic resources which they should be given the opportunity to identify, purify, and bring to market themselves (and thus reap the profits for themselves). These critics site the 1993 Biodiversity Convention, an international law which guarantees countries the right to control their genetic heritage and commits them to conserving species from extinction in order to protect global biodiversity. However, the record of enforcement of this treaty is spotty, and the United States (along with just two other countries, Andorra and the Vatican) has refused to ratify it altogether.
Despite this, some developing countries, especially India, have begun taking steps in recent years to curb the profits from bioprospecting from flowing entirely to Western companies. (India is not alone: Costa Rica, for example, has a bioprospecting agreement with Merck which lays out how revenue from commercialized medicines will be distributed.) India’s strong opposition to alleged unchecked biopiracy stems in part from a pair of high-profile cases which emerged in the 1990s, in which the United States government awarded patents to research companies on the neem tree, which Indian villagers traditionally use to kill fungus, and on basmati rice.
The basmati patent has since been largely stripped of its enforcement powers. However, over the past decade India has funded the Traditional Knowledge Digital Library, a database of traditional medicines based on indigenous culture, ancient manuscripts, and other sources on historical cultures. The purpose of the Indian-sponsored library is to create a repository of “proofs” of ancient uses of traditional medicines, so that if and when future patents are rewarded on traditional medicines, opponents can argue that the patent be nullified because of prior use by indigenous cultures. In past cases, pharmaceutical companies awarded patents on commercialized uses of traditional medicines have argued that indigenous prior use may not count against a patent because those cultures never purified the active medical ingredients or documented their findings in standard medical texts and journals (the latter, in particular, seems to be a bit of a legalistic cheap shot).
Essentially, the continuing debate boils down to a single fundamental dilemma: is it more important to protect developing countries’ rights to their genetic heritage (even if important medications are not developed until some time in the future), or to locate and identify new medications as soon as possible (even if it means the profits from these ventures flow predominantly to multinational pharmaceutical corporations rather than the countries in which the medicines originate)?
