Zain Adnan, Jakarta
Indigenous plants and herbs such as the Javanese long pepper (cabe Jawa), false daisy (orang aring), Java olive (jangkang) and the cane senna (meniran) are used in traditional herbal medicines and remedies, known as jamu, that can be bought in markets and stores all over Indonesia. Jamu dates back to prehistoric times, when it originated in Java, and is a herbal medicinal system that has been passed down for generations among traditional healers.
Today, jamu is available both in traditional forms, such as tonics, pastes and infused teas, and in modern forms like capsules, tea bags, cosmetics and bodycare products.
Against this historical and cultural legacy, however, a major Japanese cosmetics company applied for and were granted a series patents for products derived from traditional jamu knowledge.
These patents were later revoked due to Indonesia's claim to "prior art" -- the processes, devices and modes of achieving the end of an alleged invention that were known or were knowable by due diligence before and at the date of the invention.
Non-governmental organizations were at the forefront of these protests lodged against the Japanese patent office.
According to the World Intellectual Property Organization, for a patent to be valid, it must meet the following criteria: the invention must have a practical use and it must show an element of novelty. This means a patented invention must possess some new characteristic(s) that is not known in the body of existing knowledge in its technical field; it must show an inventive step that could not be deduced by an individual knowledgeable in the field.
It is not too hard to surmise why corporations would want to patent traditional medicines. The annual global sales for products derived from the manipulation of genetic resources are estimated at US$500 billion to $800 billion. Sales of herbal medicines in 2000 alone reached $30 billion, with annual growth rates of 5 to 15 percent depending on the region.
This huge market leaves the door open to biopiracy, or biological theft. To be more succinct, it is the illegal collection of indigenous plants by corporations that patent them for their own use -- such as in the case above.
Indonesia is not the first country to experience this phenomenon. A more widely known case is that of the Neem tree in India.
The Neem is commonly used in medicines and as a pesticide, a use that dates back to 5,000 B.C. Every part of the Neem is used for medicines, cosmetics, agricultural applications and as a biopesticide. Before the advent of toothpaste, Indians used to chew on the Neem twig for its antibacterial properties.
Despite the Neem's common and widespread use in India, an American company applied for a dozen patents in the U.S. and built a factory to manufacture biopesticides and toothpastes. After the company obtained patents for prodcuts based on the Neem tree, it sued Indian manufacturers for making similar products, even though they had been making these products long before the American firm applied for patents.
Traditional knowledge on the Neem was not well documented, as it was commonplace in India. As common knowledge, its efficacies could not be claimed by Indian manufacturers under patent laws. The U.S. firm succeeded in validating its patent, as it claimed to have found an inventive extraction process.
However, the European Patent Office revoked in 2000 the patent for the Neem tree fungicide granted to the U.S. manufacturer on the grounds that it lacked novelty, an inventive step and the main properties in its patent claims already existed as "prior art" years before the patent application. In the case, ancient Sanskrit texts were used to show that the Neem had been used for centuries in India.
Although these Neem patents were revoked, 80 other patents on products derived from the Neem exist around the world. But these patents are now known as false patents -- or unpatentable subject matter that are within the public domain but may have eluded examiners at the time of application.
Considering the ease with which companies can commit biopiracy and patent centuries-old traditional knowledge, the new government should take steps to protect the knowledge of jamu in the interest of the masses that rely on traditional healers.
Some countries, such as Peru, have started to collect and catalog traditional data, specimens and formula to help patent examiners in researching prior art and prevent false patenting.
Collecting the vast knowledge of jamu would require the commitment of both central and regional governments.
Critics of the database say the publication of such knowledge via thet Internet or its accessibility at a public institution would make it easier for biopirates to access the protected information.
Learning from the Neem tree case, India has already put together a database called the Traditional Knowledge Digital Library (TKDL), which contains 4,500 medicinal plants and 35,000 Ayurevedic formulas. This will eventually prevent Indian traditional knowledge from falling victim to biopiracy, false patenting and misappropriation. Access to this database is still being argued -- what better way to steal traditional medicines than to have developing countries collect the knowledge into a database.
However, patent examiners would also have access to this knowledge. In the case of the Neem patent applications, they would probably never have matured into registrations.
Indonesia should learn from India's experience and its own case of patents registered to Japanese cosmetics corporations. Many people believe that our forests in Kalimantan are home to plants that can cure cancer and other deadly diseases.
We should collect this information on a database, and meanwhile, jamu producers could capitalize on their know-how by selling it for a small royalty to the government. The government could then help with the preservation of regions that would benefit from the protection of their traditional knowledge.
Perhaps tribesmen somewhere in Kalimantan or another islands already use such medicines, and for our lack of documentation, we may lose these treasures that have been passed down orally for hundreds of years.
The writer is deputy head of external affairs for the Indonesian Intellectual Property Society. He can be reached at [email protected].