Biology Reference
In-Depth Information
Africa in 1996 when the CSIR patented a utility patent 25 (generally referred to as the
P57 patent) relating to the active appetite suppressant ingredients of the Hoodia . 26
In 1997 the CSIR signed a primary licensing agreement with Phytopharm, a
small British company specializing in the development of phytomedicines, that
would enable further development and commercial exploitation of the P57 patent.
In 1998 Phytopharm sublicensed the right to develop and commercialize the P57
patent to US drug manufacturer Pfizer. This set of licensing agreements was meant
to provide the CSIR, as patent holder, with a guaranteed stream of future payments
based upon the progressive development of the patent as a drug or medicine (mile-
stone payments) and finally upon commercial results (royalties).
In June 2001 the San first ascertained, through an article printed in the UK
Observer newspaper (instigated by Biowatch, a South African NGO specializing
in issues of environmental biodiversity), that San traditional knowledge relating
to the Hoodia plant formed an essential component of the CSIR patent. There had
been no attempt at consultation by the CSIR. In fact, Phytopharm's chief execu-
tive, Richard Dixey, was quoted as having been told by the patent holder, the
CSIR, that the San 'no longer existed' (Barnett 2001 ). The fact that no efforts were
made to obtain prior informed consent was in:
flagrant disregard of the International Labour Organization's Convention 169, an interna-
tional agreement for the protection of indigenous peoples' rights; the letter and spirit of the
CBD; the African Union's Model Law for the Protection of the Rights of Local Communities,
Farmers and Breeders and for the Regulation of Access to Biological Resources …; and
the Bonn Guidelines on Access to Genetic Resources and Fair and Equitable Sharing of the
Benefits Arising out of their Utilization (Wynberg and Chennells 2009 : 101).
The international news coverage spurred the CSIR into action. Because the San
had already begun to articulate and advocate for their rights to land and culture
through WIMSA, they were prepared to start negotiations with the CSIR. WIMSA
mandated South African San leaders to register a San Council and to negotiate
with the CSIR on behalf of all San peoples. This council met frequently to receive
specialized training in the field of intellectual property and to hold consultative
workshops with their communities before and during the negotiations. San nego-
tiators decided at an early stage of the negotiations that it was not in their interests
to challenge the patent, and adopted the more pragmatic approach of opting for a
potential share of benefits.
After two years of negotiations the San and the CSIR signed a benefit-sharing
agreement in March 2003 in terms of which the San were to receive 6% of the
CSIR's royalties from licensees and 8% of milestone payments. The outcome was
hailed as a success for the CBD in the international media, and the case has not
been out of the limelight since.
25 A utility patent, as opposed to a plant or a design patent, is any new or useful process… or any
useful improvement thereof. The patent must comply with the three requisites of non-obvious-
ness, novelty and usefulness.
26 The P57 patent is a complex and broad patent, which includes the method of extracting the
active principle, being the 'appetite suppressant agent'.
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