Pirate Patents: Arguing for Improved Biopiracy Prevention and Protection of Indigenous Rights Through a New Legislative Model
Many common agricultural crops have developed through human tinkering; alteration and experimentation have given rise to food species whose existence depends entirely on humans. The development of these crops has generated specific, traditional knowledge associated with particular species, and this potent combination of genetic material and phenotypic value creates a modern-day treasure trove of valuable commercial material. Individual and corporate parties have increasingly sought to collect such indigenous knowledge and capitalize on its value through existing intellectual property patent protections. This practice, known as “biopiracy,” evades easy definition; by common consensus, the practice may best be characterized as a form of biological theft, in which plants identified and cultivated by indigenous communities are collected and patented by noncommunity members without granting property protection to the original cultivators. Biopiracy is also viewed as the appropriation of biodiversity from its original owners and innovators through the creative definition of seeds, medicinal plants, and associated medical knowledge as nature, thereby removing the plant materials from patent eligibility. This definition combines a variety of loosely associated but poorly defined notions of biopiracy, demonstrating the difficulty in identifying the practice. The derivation of genetic and biochemical materials is both scientifically and commercially valuable, and companies attempt to patent these materials to “justify legal ownership through intellectual property law.” Additionally, the lack of agreement over the actual subject matter of the patent, namely the plant versus the traditional knowledge with which it is associated, further confuses the issue. “Biodiverse” developing countries have accused their developed Western counterparts of removing genetic resources and the traditional knowledge with which they are associated and patenting these resources in their original forms or in the form of derived inventions. . . .
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