Peru's biodiversity could be vulnerable to patenting

Flickr/Sheep"R"Us

[LIMA] Modifications to intellectual property laws that the Peruvian government "rushed through" to enable the go-ahead of a free trade agreement (FTA) between Peru and the United States could facilitate biopiracy and hamper Peru's position as a protector of traditional knowledge, say experts.

Changes to intellectual property rights, environment and labour laws were sent to congress last month (8 January) and passed without debate before their enactment on 14 January — giving George Bush time to finalise the agreement before he left office.

The rush stemmed from fears that new US president Barack Obama would object to the treaty, which entered into force on 1 February.

But experts have warned that the changes have resulted in flexibility in certain regulations, leaving them open to broad legal interpretation, which could facilitate genetic resource patenting by other countries.

Decision 148 of the regulations of the Andean Community of Nations (CAN) — of which Peru is a member — states that "biological material existing in nature or those which can be isolated, including genome or germplasm of any natural living being, cannot be the subject of a patent".

The Peruvian amendment says biological material "in whole or in part" cannot be considered an invention — but there is no explicit mention of genes or germplasm.

This ambiguity could benefit large corporations seeking to patent genes for genetically modified organisms, Manuel Ruiz from the Peruvian Society for Environmental Law, told SciDev.Net.

Rules protecting indigenous knowledge related to biological resources have also been changed. CAN stipulates the presentation of a 'certificate of origin' before patenting — proving access has been officially authorised.

But the amendment merely requires the filing of a licence — which can be issued by lesser authorities. Additionally, failure to use the licence will incur only a penalty, rather than cancellation of the patent as the CAN mandate stipulates.

Ruiz says the changes are a "step back" in progress made so far.

"This measure will cause biopiracy … allowing any person or company to patent our resources or knowledge only by filing a license contract."

Government officials accept that the modifications increase flexibility, but say they do not facilitate biopiracy or violate the CAN regulations.

"The changes of the law do not allow the patenting of genes, because the amendment reiterates that the biological material existing in nature, either in whole or in part, is not an invention," Manuel Sigüeñas, from the governmental National Institute for Agrarian Innovation, told SciDev.Net.

The amendments were enacted on the same day the regional government of Cusco approved a law against biopiracy and protection of indigenous knowledge (see Peruvian region outlaws biopiracy).

Other government officials admitted that the law "could pose a certain threat to Peruvian biodiversity". Several officials said the National Commission on Prevention of Biopiracy are due to meet to discuss concerns.