Biopiracy Concerns Heat Up over Chilli Pepper
Under the WTO Doha Round of trade talks, there has been increasing pressure, particularly from developing countries, to find mechanisms which will help prevent biopiracy and misappropriations - focused particularly on the patenting of foreign biological resources and traditional knowledge. In July 2008, a coalition of more than 100 developed and developing countries - including the EU, Brazil, India, many African countries and Switzerland - put forward a set of draft modalities to tackle the issue. The proposal calls for the Doha discussions to consider amending TRIPS to include a ‘disclosure of origin patent requirement' relating to the use of biological resources and/or traditional knowledge in a patented invention.
Despite the formation of this sizable coalition, informal consultations on the matter have continued under the coordination of WTO Director-General Pascal Lamy without substantive progress. While these negotiations are important for their own aims, there are overlapping concerns that need to be addressed and which may be slipping through the cracks in the emerging international legal framework.
Although biopiracy is often discussed in terms of injustices relating to patent monopolisations, there are other cases where biological materials and traditional knowledge are appropriated and commercialised without sufficient authorisation and/or compensation. Do these cases deserve the title of biopiracy? Certainly other forms of intellectual property protections may offer unfair monopolisation of plants through, for example, plant variety protection that free-rides on the knowledge and innovations of others. These other cases of ‘non-patent biopiracy' also need to be considered and addressed.
American scientists cool off spicy pepper
A new case of interest has been identified in the US Plant Variety Protection (PVP) Office database with PVP number 200400329 for the ‘TAM Mild Habanero Pepper'. This certificate was issued on 25 January 2007 to the Texas Agricultural Experiment Station. The main ‘biopiracy' concern in this case is that the pepper (Capsicum chinense) cultivar was bred from a cross between an orange habanero pepper from the Yucatán Peninsula and a pepper from a US Department of Agriculture (USDA) genebank with Plant Introduction (PI) number 543188 collected from Bolivia.
The Texas A&M University System Agriculture Program put out an ‘AgNews' press release on the pepper on 12 August 2004, describing it as a successfully bred mild version of the infamously hot and piquant habanero pepper. From a five-year breeding program the progeny of a cross "between a hot Yucatán habanero and a heatless habanero from Bolivia began to show promise"[i]. Due to the mildness of the normally piquant habaneros, those breeders from the Texas Agricultural Experiment Station have indicated their excitement at the possibility of selling the habaneros to salsa companies and as a fresh product at between US$3 and US$4 per pound; while the comparable jalapenos peppers fetch around 50 cents per pound[ii].
Mild variety has long history in Latin America
Despite tampering in Texan laboratories, much of the uniqueness of this mild habanero can likely be put down to the variety collected in Bolivia. The US Genetic Resources Information Network (GRIN) database record indicates that the original variety is ‘not piquant' and that it is ‘said to be grown locally' in Bolivia. The original variety was purchased by a USDA official from a Brazilian vendor in the Cobija market of Nicolas Suarez Province (Pando Department) which borders Brazil, on 13 November 1988. The plant material was then transferred to the USDA Plant Genetic Resources Conservation Unit in Georgia where the Texan breeders appear to have obtained the germplasm (GRIN PI 543188).
There are a number of documents that indicate the extent of breeding and use of cultivars of the Capsicum chinense species, including the habanero pepper in South and Central America. Archaeological excavations have placed sedentary people practicing agriculture east of the Andes, possibly as early as 2000 BC[iii], indicating that it was probably these people who first domesticated cultivars of the Capsicum chinense species. Evidence also indicate that the likely place of origin of the domesticated Capsicum chinense cultivars are the lowland Amazon basin with a potential range across Central America, South America and the Caribbean[iv].
Thus, there is extensive evidence of the domestication and breeding of habanero peppers for use as a food in the region bordering Brazil and Bolivia, which has continued through to the present day. Despite these documents, due to the limited requirements for grant of a plant breeder's right in the US (and elsewhere) the examiners do not need to consider prior art as a registration criterion in the same way as a patent, and therefore these documents do not invalidate the plant breeder's right bestowed by the PVP certificate.
In the PVP documents there is some evidence of breeding, although the so-called ‘new' non-piquant trait of the ‘TAM Mild Habanero Pepper' is likely to be a direct result of the breeding by local growers in Northern Bolivia. Because the USDA admits that the original plant was bred locally in Bolivia and found already with this trait, it seems likely that the direct contribution to the ‘new' variety made by Bolivian breeders would be substantial. According to the Bonn Guidelines for Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization, the individual Texan breeders should consult with the USDA and local agriculture authorities in Nicolas Suarez Province to establish a process of engagement and benefit-sharing with the original breeders at the very least.
The genebanks of the USDA should also be much more cognizant of these issues and should be establishing material transfer agreements like those required by the international research centres of the Consultative Group on International Agricultural Research (CGIAR), including recognition, consultation and benefit-sharing arrangements with indigenous and local provider groups as well as placing restrictions on IPRs over germplasm collected directly from foreign sources.
More protection needed
For the most part, international attempts to resolve issues of biopiracy have focused criticisms and proposals on the need for amendment of the patent system. But a ‘disclosure of origin' requirement might also need to be extended to PVP systems, particularly through the International Convention for the Protection of New Varieties of Plants (UPOV), to be effective against cases such as the one described above.
Regarding the prevention of biopiracy, the other main area of focus has been on closely regulating ‘access to genetic resources and benefit sharing' as well as genetic material transfer agreement rules in the Convention on Biological Diversity (CBD) and the International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA) respectively. However, there is still some way to go before the Parties to the CBD are likely to be able to fully develop an International Regime on Access and Benefit-Sharing.
Additionally, the ITPGRFA only covers certain crops under its Multilateral System on Access and Benefit-Sharing. In this case, the Capsicum genus has not been listed for inclusion in Annex 1 on the ITPGRFA and so is not regulated by the Standard Material Transfer Agreements required of Contracting Parties under the Multilateral System. These international laws also do not apply retrospectively. Consequently, there are still many gaps in the evolving international legal framework which mean that biopiracy is still likely to be an ongoing problem.
That this case is so recent, suggests that researchers are still not aware of the ethical implications with regards to indigenous knowledge and breeding of plant varieties, and are ignoring the current legal developments in international fora. However, because the US has not ratified the CBD or the ITPGRFA the US government is essentially legitimising these sorts of malpractices so long as the so-called ‘innovators' comply with the word of the domestic intellectual property laws in question. With the recent accession of Iraq bringing the total number of Parties to the CBD to 191, almost every country in the world is on board - the US being conspicuously absent.
The Permanent Mission of Bolivia to the UN in Geneva has been notified of the case and is investigating.
Dr. Daniel Robinson is a Lecturer at the University of New South Wales' Institute of Environmental Studies. This article is based on an extract from his forthcoming book ‘Confronting Biopiracy: Cases, Challenges and International Debates'.
[i] Santa Ana III,R (2004) ‘Texas Plant Breeder Develops Mild Habanero Pepper' AgNews - News and Public Affairs. Texas A&M University System Agriculture Program. 12 August, 2004.
[ii] Kevin Crosby cited by Santa Ana III,R (2004) ‘Texas Plant Breeder Develops Mild Habanero Pepper' AgNews - News and Public Affairs. Texas A&M University System Agriculture Program. 12 August, 2004.
[iii] See Pickersgill, B. (1971) "Relationships Between Weedy and Cultivated Forms in Some Species of Chili Peppers (Genus Capsicum)' Evolution Vol 25, No 4, pp683-691.
[iv] See Bosland, P.W. (1996) ‘Capsicums: Innovative Uses of an Ancient Crop' in Janick, J. (ed) Progress in New Crops. ASHS Press, Arlington, VA and McLeod, M.J., Guttman, S.I. and Eshbaugh, W.H. (1982) ‘Early Evolution of Chili Peppers (Capsicum)' Economic Botany Vol 36, No 4, pp361-368.