Bioprospecting – Preserving the diverse sagacious gift

We comprehend Traditional Knowledge as information acquired through wisdom and transmitted to the next person or the next generation, orally by a process of visual experience, which is continuously developed and preserved by an individual or a community. Traditional Knowledge practices Environmental Science.

Environmental Science is the study, which deals with all species of living things such as plants, animals or insects etc. Biodiversity is one of the most essential branches and the crucial role of biodiversity is to produce variability by synthesizing a change in the genetic traits of species. The doctrine of natural law is that change is constant in nature and biodiversity is constant variety in life. Biodiversity helps to produce a variety of pharmaceutical products that can immediately cure a living body from an infinitesimal injury and also from an apocalyptic calamity. The process of discovery and commercialization of a new Product or the utilization of biodiversity based on the exploration of a novel biological and genetic resource along with the screening of indigenous knowledge after extraction is known as Bioprospecting. Previously, prospecting of a biological area or resource largely centered on the plants from the eco-system of the forest and gradually the bioprospecting of micro-organisms, algae, insects, animals and other species have been explored and spawned enormous success. Different chemical substances are synthesized from these species that are considered as Essential Drugs in the field of nutrition and the manufacturing of these pharmaceutical products by the Company find a substantial degree of origin in the indigenous communities.

The recorded history of international missions for collecting samples of plants dates circa 3500 years when the Rulers of Egypt began to transport diverse plants back to their homeland after military expeditions.

Charles Darwin pruned the samples of plants from Galapagos and the neighboring islands and brought them back to his home for research.

During the mid-twentieth century, the adventures of Richard Schultes have become legendary tales amongst the community of ethno-botanists. Mr. Schutles befriended many local shamans, who allowed him to collect thousands of varied specimens of plants with medicinal values out of which hundreds had never been taxonomically documented.

Earlier, the applicable laws were not established for such collections and the legalities of obtaining the specimens of plants, microbes and animals were customary wherein a Bioprospector or a Researcher would arrive on the field site, collect samples of the species and take them home. Thus due to the lack of clarity and distinct lacunas in the former existing laws, the Bioprospectors of various human corporations encouraged the exploitation of the dysfunctional legal framework and the policies of the indigenous communities for their own commercial benefits. Several amendments of the legal structure and guidelines were implemented and nowadays, anyone adopting the traditional method of ‘Take and Run’ for collection of specimens is considered as Unethical Biodiversity. The apprehensive exploitation of indigenous forms of knowledge by Commercial Actors, which includes the exploration, and extraction of a previously unknown compound in an organism or specie, which may have never been known or used before in traditional medicines, is known as Biopiracy.

The ethno botanist Dr. Brent Berlin had intended to document the biodiversity of Chiapas, Mexico for developing medicinal products from the plants used by the indigenous groups and also record the ethno botanical knowledge of indigenous people - The Maya People. The Maya case was one of the foremost to highlight the problems of distinguishing between the benevolent forms of Bioprospecting and the malevolent form of Biopiracy and the complications for obtaining consent from the communities for any prospective Bioprospector.

In present day situation, a Bioprospector must obtain prior permission for collecting samples of natural biological products. This scope varies from country-to-country, typically the developing country that are rich in biodiversity provides the critical raw biological materials for search and exploration of valuable genetic resources (which includes essential codified information) to the developed countries which regulate the pharmaceutical firms and also for Research and Development of Biotechnology wherein the development and application of such materials is incorporated to form a novel product with non-exclusive technology.

A Bioprospector focuses on the extraction from a specimen for bioactive compounds, which is, broadcasted along with the wisdom of indigenous knowledge. Few companies engage in Biopiracy, due to the inequality between the developing countries and the developed countries. The pharmaceutical companies develop products from medicinal plants and later apply for Patent without recognizing the fact that the knowledge obtained by the applicant is not novel and further deprive the indigenous community of their lawful sharing rights by commercial exploitation.

India is a resourceful country with an insightful diverse eco-system in every aspect of genetics and functionality in the species. The natives of India have been able to nourish the entire world with different resources due to its rich topographical ecological environment. The Department of Agriculture in the United States received a European Patent on the methods of controlling fungal infections in plants by using a composition which included extracts from the Neem Tree that is devotedly grown throughout the regions of India and Nepal. In 2000, several groups of India opposed the registration of Patent. Miss. Vanada Shiva and the International Federations of Organic Agriculture Movements (IFOAM) disputed the European patents on the grounds that the prevention of fungal activity by Neem extracts is not novel and this healing application is renowned by the Indian Traditional Medicine Practitioners and achieved a successful verdict. India has contracted many forest treaties and various other treaties for the protection of medicines and native foods under the Chakraka and Sushastra Samhitas. Various legal tools are being developed whereby the budding nations can exert leverage over the utilization of their resources. The source country providing biological or genetic resources must be informed in advance as to what will be done with the resources and what benefits shall be shared. This leverage can be used to earn revenues and promote conservation.

In the present day situation, the famous TRIPS cited for collection of specimens can be challenged on legal grounds because Biopiracy or mala-fide collections of the biological samples can:

I. Infringe on the sovereign rights of the countries
II. Decrease the health and economy of indigenous communities
III. Deplete or destroy the bio-diverse species.

Therefore, Bioprospecting or bona-fide collection of biological samples can help in a successful medical and scientific research including Bioprospecting in the Marines and Antarctic. The procedures for an effective collection are illustrated below:

I. On – site collection of Samples in situ

II. Isolation, characterization (gathering) and acculturation of the specimens

III. Screening of specific compounds for potential utilization such as pharmaceutical or other uses.

IV. Development of Products and commercialization, including patent, trials, sales and marketing.

The new set of laws for achieving superior Bio Diversity prospecting of natural products and resources are:

I. OPEN ACCESS which refers to a system of law whereby no sovereign state controls the resources or area in question. The Bioprospector are free to utilize and profit from these resources/areas so long, as they adhere to accept the general principles and obligations of international law

II. ACCESS AND BENEFIT-SHARING (ABS) describes the legal establishment that seeks to dispense equitable rights to both developed and developing states regarding exploitations and any derived benefits from scientific research and commercial development from the biological and genetic resources

III. PRIOR INFORMED CONSENT is a standard procedure for ensuring a rational and equitable access along with the benefits sharing agreement

IV. GLOBAL COMMONS also referred as Commons which is used to describe domains where common resources are found. The Global Common specifically refers to domains which do not fall within the jurisdiction of any one Nation; therefore all states will have legal access to such domains. The High Seas and Antarctic are considered as a part of Global Common

V. PROFESSIONAL SELF REGULATIONS refers to an institution and professional organizations that have decided to implement natural products research policies for their members and these policies have quasi – legal or contractual status. Scientific organizations including botanical gardens from Kew, Missouri and biotechnology companies (Shamans, Monsanto) have also executed various policies for bioprospecting.

VI. PROTECTIVE POLICY is an approach, which is beneficial for a bioprospector in the absence of adequate scientific evidence. The decision maker must be careful and adopt the law and policies which shall avoid supposed risks to human health or cause harm to the environment.

Other legal benefits may benefits may include support for conservation, research and development, contribution of materials, assistance to indigenous and local communities with up-front fees, milestone payments and royalties.

From the Lawyer’s Desk

“The flow from knowledge to action draws upon the completion of a person with his or her catalyst and synergetic potential.

"Statistics reveal that crude extractors determine about one (1) in every ten thousand (10,000) chemicals derived from mass screen of plants, animals and microbes eventually to result in profitable drugs. On the contrary the Shaman Pharmaceuticals, Inc – a U.S based company, which collected specimens of plants by talking to indigenous healers and watching their skills, and claims a firm success rate of 50%. The key to biodiversity is tactful Filter of the tacit knowledge.

Every national has the right to their own biological resource that is pledged by the present global agreements. Every Nation can approach the courts for due process if the source of inspiration and resources are at risk. The nations can also demand a share of profits from products discovered through biopiracy. Biopiracy is considered as poaching in many countries and can result in a detention. An intellectual person, prospector or a scientist will not like to be associated or be labelled as a Biopirate. A Biopirate may lose their privileges and will have to compensate in a dispute concerning biopiracy. Every national can initiate a successful Bioprospecting by not accepting any biological materials from an illegal and unethical collection.

The author endeavours to provide precise legal measure and renewed guidelines for every national and prospective Bioprospector for bona-fide extraction of specimens along with plan for the tactful filter of the indigenous knowledge to achieve a better success like many former legendary Bioprospectors during their famous collection TRIPS.


on 07 November 2016
Published in Intellectual Property Rights
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