Thread by @JocelynBosse

Let's talk about the infamous plant patent for ayahuasca...

This is "DA VINE," a variety of Banisteriopsis caapi, or yagé (#PlantPatent 5,751)

Many thanks to @UMDLibraries for providing me with the colour images last week!

The patent raised concerns of “biopiracy”

The term was coined in the 1990s to describe how intellectual property (especially patents) is used to appropriate Indigenous knowledge and plants, without permission or compensation.
theconversation.com/biopiracy-when…

The patent described a variety “discovered growing in a domestic garden in the Amazon rainforest.”

Its distinctive feature was the rose-colored flower petals that fade to white with age.

The inventor also noted potential “medicinal value in cancer treatment and psychotherapy.”

For Amazonian societies, it is the main ingredient in the ceremonial brew: ayahuasca.

“Only shamans are authorized to prepare the ceremonial drink made from the sacred plant, and no member of the community can drink it without the guidance of a shaman,” said Antonio Jacanamijoy

Ayahuasca became known to the American public via the research of ethnobotanist, Richard Evans Schultes

I’ve previously written about his role as a key expert witness in the Cannabis litigation in the 1970s. See also: journals.sagepub.com/doi/full/10.11…

The patent was awarded on June 17, 1986, to Loren Miller, director of California-based company, International Plant Medicine.

He was apparently given a sample of the yagé vine in 1974 by a tribal leader in Ecuador, then applied for the patent on November 7, 1984.

In 1994, the Coordinating Body of Indigenous Organizations of the Amazon River Basin (COICA), an organization representing over 400 Indigenous groups from several countries, learned about #PlantPatent 5,751.

They criticised the plunder and disrespect towards the “sacred symbol.”

The controversy soon became a diplomatic issue.

In 1996, Ecuador’s trade representatives reacted to the biopiracy incident by demanding revisions to their bilateral investment treaty with the United States (signed in 1993), or they would not ratify it.
ipsnews.net/1997/08/ecuado…

A patent re-examination request was filed on March 30, 1999, by the Center for International Environmental Law, COICA, and the Amazon Coalition.

It focused on the legal requirements that the plant must be “new” and “distinct” (35 USC § 161) ciel.org/wp-content/upl…

Key prior art evidence was some B. caapi herbarium specimens published in the Field Museum of Natural History (1978) and the U Michigan Herbarium (1981).

These described the same features as DA VINE, notably flower petals that were “rose pink, fading completely white with age.”

They also cited published accounts of Amazonian societies using the plant for healing ceremonies, and argued the USPTO should apply the “moral utility” doctrine to prevent this appropriation of Indigenous plant knowledge.

On moral utility: scholarship.law.wm.edu/cgi/viewconten… by @margobagley

After re-examination, the patent was rejected on November 3, 1999.

It failed on novelty (35 USC § 102), since the plant was described in a printed publication—herbarium specimens—more than a year before filing.

But the biopiracy and “moral utility” grounds were rejected.

While happy with the outcome, the lawyer for CIEL expressed concern that the USPTO “still has not dealt with the flaws in its policies” and it “needs to change its rules to prevent future patent claims based on the traditional knowledge and use of a plant by indigenous peoples.”

Nevertheless, following the revocation, Antonio Jacanamijoy of COICA described the decision as “an historic day for indigenous peoples everywhere.”

… but then Loren Miller appealed.

The opponents couldn’t make submissions on appeal, since the patent was granted before 1999, when inter partes re-examination became available.

Miller argued that DA VINE was distinct from the herbarium specimens and that the specimens were not prior art ciel.org/wp-content/upl…

Miller also argued that the flower color descriptions on the herbarium specimens were "imprecise" as they didn't comply with Ridgeway’s Color Standards and Color Nomenclature (1912).

But neither did the prior art cited by Miller, nor the expert testimony from a senior botanist.

Nevertheless, the USPTO accepted Miller's arguments. #PlantPatent 5,751 was reinstated and the re-examination certificate issued on April 17, 2001.

The patent expired in 2003.

See also: nature.com/articles/d4158… @ShobitaP on @raceip