July 30, 2003

Brazilian indigenous communities are firmly opposing the efforts of Japan’s Asahi Food Company and other outside corporations to claim patent rights on the fat extraction process of the seed of the Cupuaçu fruit tree. As foreign businesses like Asahi gain greater control of Brazil’s biodiversity, the companies reap significant monetary benefits while the suppliers of the raw materials, like the indigenous, receive little in return. If successful, the Cupuaçu case has the potential to be a landmark of resistance and self-assertion for Brazil’s indigenous people.

Protesters plan to expose a 14 meter banner signed by thousands of supporters reading: “Cupuaçu is ours” on Brazil’s parliament in hopes of gaining support from the Federal Deputies for their case. The campaign involves thousands of people, including nongovernmental organizations, such as the Amazonia Working Group and Amazonlink.org, as well as indigenous groups and other Brazilian citizens.

Many involved with this campaign believe the Lula government will support their case, particularly Marina Silva, Brazil’s Minister of the Environment. Currently, these indigenous groups are backed by the Ministry of Foreign Affairs along with the National Institute of Industrial Property.

The Cupuaçu is a small tree, reaching nearly 20 meters in height, and grows in the Brazilian Amazon. Its fruit is a primary food source for indigenous tribes, and has long been traded between villages along the Rio Negro and the Upper Orinoco Rivers. Traditionally, the seeds of the Cupuaçu are used by Shamans to ease women’s pain during difficult child births.

Through a process of fat extraction, the fruit can be used to make a chocolate-like substance known as “Capulate.” Brazil has produced Capulate since 1983, and the controversy between the indigenous people and the corporate world first developed when Japanese Asahi Food Company acquired a patent on the extraction of fat from the Cupuaçu seeds and the production of Cupuaçu chocolate. In March of 2002, 50 tons of Cupuaçu seeds were exported to Japan, and in the course of a year this number has increased to about 200 tons of seeds. Furthering the controversy, Asahi has trademarked the word “Cupuaçu” for its chocolate products.

While in theory, anyone has the right to apply for a patent, in actuality the requirements for a patent significantly favor big business over indigenous peoples. The patent application process not only requires the usage of technical language to describe the invention, but also demands more funds than most indigenous groups have access to. In addition, in order to prove inventiveness, applicants are required to produce an artificial version of what they are trying to patent.

As we enter an era sometimes referred to as the “Biotech Century,” a time when businesses such as pharmaceutical companies and agrochemical corporations are avidly seeking to patent sources of biodiversity to monopolize control of health and nutrition, the debate between scientists, government officials, corporations, and indigenous peoples intensifies. In addition, definitions of bioprospecting, the gathering and testing of biological material for commercial ends, and biopiracy, the commercial production and patenting of products based on biological resources and Traditional Knowledge (TK), become blurry.

Members of the scientific community have argued that nearly all accusations of biopiracy are unfounded as the patent should compensate the work performed to create a patentable invention from biological resources, rather than reward the discovery of the resource itself. Earlier this July, at the annual meeting of the Brazilian Society for the Advancement of Science (SBPC) in Recife, Brazil, members of the Society approved a motion opposing existing laws to prevent illegal wildlife trafficking and export of biological materials. Members of the scientific community expressed concerns that the current laws suppress potential research on Brazil’s biodiversity. Scientists proposed a system that would monitor commercial projects for biopiracy while giving greater freedom to researchers and scientists.

Policies such as the World Trade Organization’s (WTO) Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) have to some extent improved the protection of intellectual property rights. However, lack of enforcement of these rights, biopiracy for commercial ends, and counterfeiting of products persist as global problems.

Current WTO debates between developed and developing countries involve whether patent applicants should publicly acknowledge the source of the materials or leads on inventions involving TK. Those fighting for disclosure of origin feel that it will help to show whether the applicant’s invention holds merit of actual inventiveness, which, it turn, would decrease the number of biopiracy patents awarded. Similarly, another debate involves whether or not the patent system will recognize TK itself, and if TK should be protected under TRIPS.

Regulations in NAFTA and the FTAA, organizations more powerful than the WTO in terms of protecting interests of American corporations, grant power to investors to sue any government that poses obstacles or limits to bioprospecting in their country. In addition, in 1996 president Bill Clinton signed the Economic Espionage Act, which gives power to intelligence agencies to guarantee the intellectual property rights of American corporations worldwide.

Despite the ongoing debates and proposals, none of the current ideas mention measures to guarantee compensation for the indigenous communities who provide the resources and knowledge for products being patented. This includes lack of any policy which would include proof consent or monetary compensation to suppliers. Although fair exchange with indigenous groups is not likely to occur in the near future, the legal battle involving Brazilian indigenous groups against Asahi’s patenting of Cupuaçu gives some hope for change.

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