Traditional Knowledge; Our South African Heritage

The World Health Organization estimates that about 80% of the world’s population, predominantly in developing countries, use traditional forms of medicine¹. They estimate that the percentage of the population that uses traditional medicine ranges from 90% in Burundi and Ethiopia, to 80% in Burkina Faso, the Democratic Republic of Congo and South Africa, 70% in Benin, Cote d’Ivoire, Ghana, Mali and Rwanda, and 60% in Tanzania and Uganda¹. This number is highly contested with the Mail & Guardian having published an article stating that 81.3% of Black South African households first consulted public sector health facilities, whereas 17.2% first consulted private sector health facilities, and only 1.5% first consulted alternative health facilities, which include spiritual healers and traditional healers².

Despite the contention of the number of people that use traditional medicines, the numbers always provide a clearer picture. In a study by Mander et al; they state that the traditional medicine industry is about R2.9 billion and there are 27 million users of this medicine³. Further, Mander conducted a survey in Durban alone that showed 84% of clinic patients in the area used traditional medicine with 18% indicating that they had an intention to reduce usage of traditional medicines³. In total, Mander et al state that traditional medicinal plant consumers account for 72% of the Black South African population in South Africa (26.6 million people)³. Minister Joe Phaahla stated that “Traditional medicine use has important historical and cultural significance in diverse settings and populations and may provide benefit when used safely and appropriately.”⁴These traditional medicines form part of our traditional knowledge (TK) and they mostly involve the use of genetic resources indigenous to our communities.

“Traditional knowledge is integral to the identity of most local communities. It is a key constituent of a community’s social and physical environment and, as such, its preservation is of paramount importance. Attempts to exploit TK for industrial or commercial benefit can lead to its misappropriation and can prejudice the interests of its rightful custodians. In the face of such risks, there is a need to develop ways and means to protect and nurture TK for sustainable development in line with the interests of TK holders… Their rich endowment of TK and biodiversity plays a critical role in their health care, food security, culture, religion, identity, environment, trade and development. Yet, this valuable asset is under threat in many parts of the world.” ⁶

The above statement is very relevant for South Africa. How many times have you seen your mother or grandmother mix a concoction using certain plants and herbs to help treat a cold or to heal a wound? This constitutes TK, and it forms a very significant part of our heritage as South Africans. This is an important intellectual property right (IPR) that mostly belongs to communities. According to the World Conservation Monitoring Centre, South Africa is the sixth country with the most plant species in the world, 23 420⁷. For context, the Western Cape region of South Africa alone is more botanically diverse than the richest rainforest in South America, this includes the Amazon! Since these plants are not only of ornamental value but some are used as traditional medicines, it is paramount to protect this heritage⁸. South Africa is signatory to the Convention on Biological Diversity (CBD). The CBD is an international instrument that addresses biological diversity⁹. The objectives of the CBD are the conservation of biodiversity; the sustainable use of its components; and the fair and equitable sharing of benefits arising from the utilisation of genetic resources^9.

South Africa is proactive about protecting its biodiversity and to that end, complies with the CBD through the National Environmental Management: Biodiversity Act 10 of 2004. The objectives of the Act include “To provide for the management and conservation of South Africa’s biodiversity…; the protection of species and ecosystems that warrant national protection; the sustainable use of indigenous biological resources; the fair and equitable sharing of benefits arising from bioprospecting involving indigenous biological resources…”⁵ This Act is an essential part of protecting our national heritage in the form of our biodiversity, however, it does not provide sufficient protection on its own. This is why our Patents Act as well as other relevant Acts were amended to ensure harmony between these Acts in the protection of our biodiversity.

Traditional knowledge based on genetic resources is threatened by biopiracy, wherein “indigenous knowledge of nature, originating with indigenous people, is used by others for profit, without permission from and with little or no compensation or recognition to the indigenous people themselves”¹⁰. The South African Patents Act 57 of 1978 was amended to reduce occurrences of biopiracy and consequently, before filing a complete patent application, an applicant is required to complete the form P26 in compliance with section 30 subsection 3A and 3B which state:

“(3A) Every applicant who lodges an application for a patent accompanied by a complete specification shall, before acceptance of the application, lodge with the registrar a statement in the prescribed manner stating whether or not the invention for which protection is claimed is based on or derived from an indigenous biological resource, genetic resource, or traditional knowledge or use.

(3B) The registrar shall call upon the applicant to furnish proof in the prescribed manner as to his or her title or authority to make use of the indigenous biological resource, genetic resource, or of the traditional knowledge or use if an applicant lodges a statement that acknowledges that the invention for which protection is claimed is based on or derived from an indigenous biological resource, genetic resource, or traditional knowledge or use.”¹¹

Compliance with this requirement is crucial to maintain the validity of one’s patent as should one be found to have contravened it, it can lead to the revocation of said patent as per section 61(1) paragraph (g). We have case law in South Africa and around the world related to bioprospecting and obtaining permission from TK holders for its use. The Council for Scientific and Industrial Research (CSIR) conducted research on a plant (Hoodia^TM) used by the San people to suppress appetite. The results of this study were then patented, and the patent was licensed to a UK based Phytopharm which had rights for further development and commercialisation¹². Initially, the San people were not consulted when bioprospecting and researching the plant. The CSIR did however, contact the Department of Environmental Affairs and Tourism in 1998 to seek permission for the development of Hoodia. In 1998, South Africa did not have the legal instruments we have currently, and as a result, the DEAT suggested that the collaboration between CSIR and Phytopharm be governed by law of contract.

The San instituted proceedings against the CSIR for use of their TK without their prior informed consent. Before the matter could escalate to the revocation of the Hoodia patent, negotiations commenced wherein a benefit sharing agreement was reached between the CSIR and the San. This provided an opportunity to apply the letter of the law wherein the CSIR had to not only obtain bioprospecting rights but had to consult an indigenous community that were originators of the TK and were previously left in the dark, to be able to continue commercialising their IP based on said TK.

Looking at international cases, India managed to bring about the cancellation or withdrawal of 36 patent applications pertaining to TK based on known medicinal formulations¹. India established a Traditional Knowledge Digital Library (TDKL) that has over 34 million pages of information about 2.5 million medicinal formulations¹. The TKDL is an essential tool that assists patent examiners worldwide in carrying out prior art searches (to determine the novelty of an invention)¹. As a reminder, for a patent to be granted, it must be novel and not have been known anywhere in the world. Consequently, patents based on medicinal formulations based on formulations in the TKDL would not qualify for patent protection. Some patents were revoked due to the TKDL; these include:

a) Neem patent: a patent was granted by the European Patent Office (EPO) for neem which has anti-fungal properties. The EPO found the patent to lack novelty based on the evidence presented by India and the patent was revoked¹³.

b) Turmeric patent: turmeric has many medicinal uses, including its use as a blood purifier, treatment of colds and skin diseases. The University of Mississippi Medical Centre applied for a patent claiming the wound healing properties of turmeric. Again, India applied for the revocation of the patent and provided evidence showing that the use of turmeric to heal wounds was known for centuries. The US Patent Office (USPTO) revoked the patent¹³.

c) Basmati patent: RiceTec Inc, a US company, filed for a patent pertaining to a type of rice produced by crossing a strain of Basmati rice with an American variety. The patent claimed future rights on any new varieties produced by crossing the new variety with existing Asian varieties. This caused an uproar; India earns about $800 million per year in rice exports. The patent was opposed and as a result, the USPTO struck down large portions of the Basmati patent¹⁴.

These are examples of how one can enforce IPRs. At Tshaya Mashabela Attorneys, we can assist you with navigating through the statutes and regulations pertaining to TK based on genetic resources. Contact us to arrange for a consultation and to get more information.

References:

Traditional Knowledge; Our South African Heritage

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