JUNE 1998 · VOLUME 19· NUMBER 6

Charging that the patent was improperly issued, indigenous groups plan to challenge the claim at the U.S. Patent and Trademark Office, with the help of two Washington-based organizations, the Center for International Environmental Law and the Coalition for Amazonian Peoples and their Environment.

Patent Plunder
The conflict over the plant began more than 10 years ago, when Loren Miller, director of the small California-based International Plant Medicine Corporation, took a sample of a medicinal plant cultivated by an indigenous community in Ecuador.

After Miller returned to California, he obtained a patent from the U.S. government in 1986, claiming a new plant variety, which gave him exclusive rights to sell and breed new varieties from the plant.

While U.S. patent law requires the person requesting the patent to be the original breeder of the new plant variety, indigenous groups argue that the plant is widely used throughout the region and that Miller did nothing to the plant to improve it. Therefore, they say, he cannot claim to be the "inventor" of the plant, and is thus not eligible for a patent.

The perceived theft of ayahuasca is especially disturbing to indigenous groups because the vine, also known as yage, is held sacred by many indigenous communities. It has been cultivated throughout the Amazon rainforest since the pre-Colombian era for religious ceremonies and medicinal purposes.

"Only shamans are authorized to prepare it and no member of the community can drink it without the guidance of a shaman," says Augustin Grefa, a leader of the Rio Blanco community, which is located 350 kilometers east of Quito, Ecuador.

"Miller committed an offense against indigenous peoples for his benefit," says Antonia Jacanamijoy, the general coordinator of COICA.

"We would like to believe that, as the millennium is ending, so is the time of paternalism, protection and colonial practices -- but it seems that we have the sin of optimism," Jacanamijoy says. "Commercializing an ingredient of the religious ceremonies and of healing for our people is a real affront for the over 400 cultures that populate the Amazon basin."

Miller says he was given a sample of the plant by an indigenous community in Ecuador, but he refuses to identify the community on the grounds that he wants to protect residents from COICA, which he has called a terrorist organization that ruined the reputation of his business.

Environmental groups and COICA say that, because the plant is cultivated throughout the region, no single group could have authority to give Miller permission to take the plant for the purpose of patenting it. Even if a community did give Miller permission to take the plant, however, the longstanding, broad use of the plant should invalidate his patent claim.

Miller -- who refuses to speak with reporters -- has ignored repeated requests to give up the patent, arguing that he is acting in accordance with U.S. law, according to environmental groups.

According to the actual patent, Miller's small corporation is working on developing psychiatric and cardiac drugs from the plant. If Miller decided to market these drugs, under U.S. law he would need a separate patent. The current patent is only applicable to selling plant varieties, not engineered drugs, from the plant.

While no samples of the plant have been commercially sold by Miller, other companies and individuals freely advertise ayahuasca on the internet.

Entrance Prohibited
Following the news of the patent claim, COICA adopted a major policy resolution alerting indigenous groups that Miller and his company were an "enemy of indigenous peoples," and that "his entrance in any indigenous territory should be prohibited." The organization also posted a notice on its internet web site that it would not be responsible for any physical harm done to Miller if he went into indigenous territory.

U.S. officials have reacted strongly to COICA's threats against Miller. The U.S. embassy in Quito says the threats amount to a terrorist act. The embassy and the Inter-American Foundation, a multilateral development agency which has provided the indigenous organization with financial support, have called for a retraction of the COICA resolution. The Foundation, which has provided more than $1 million to COICA, says it will reconsider giving grants to the group in the future.

"We do not represent the private interests of Mr. Miller related to his patent to develop and commercialize the plant," Adolfo A. Franco, a legal adviser for the Foundation, told reporters. "However," he added, "the COICA resolution is abusive and reprehensible, constituting a threat against the security and well-being of Mr. Miller and we cannot support that."

Indigenous groups were outraged. "The dignity of our peoples is highly valued, much more that your one million dollars," Jacanamijoy told Franco. "Without listening to our reasons, your organization unconditionally defends the economic interests of Mr. Miller."

Other groups, including the Coalition for Amazonian Peoples and their Environment, have questioned if the Foundation's request violates the autonomy of indigenous groups.

"The Inter-American Foundation's bullying of indigenous peoples contradicts their mission as a U.S. government agency to support economic development of the poorest sectors in the Americas," says Melina Selverston, director of the coalition.

Other environmental organizations, including the World Wildlife Fund, have also expressed their concern over the IAF's treatment of COICA.

Indigenous vs. Textbook Knowledge
The root of the dispute is not the Foundation or Miller, but that the U.S. patenting process favors corporations over the rights of indigenous people, says Edward Hammond, a researcher with the Rural Advancement International Foundation (RAFI).

He says because the U.S. patent office does not thoroughly check to see if a plant variety is genuinely new or if the applicant is indeed the original breeder, corporations can easily claim patents on plants grown and bred in other countries by indigenous peoples.

In order to claim a plant patent under U.S. law, the applicant must be the breeder or cultivator of the plant and prove that the plant is a new variety. But, in practice "all you do need is a pair of scissors, a passport and a backpack," says Hammond.

Ayahuasca was not some plant that no one knew about that was hidden in the rainforest and not used by people, he argues. "It is widely used and cultivated throughout the Amazon -- and has been selectively bred by indigenous people for centuries."

U.S. patent official Doug Robinson explains that, when a patent application is evaluated as a new variety, officials conduct scientific literature and textbook searches to see if the plant is in fact unique. "If a plant is cultivated for hundreds of years and is not written about, we might never know about it," says Robinson. "This may be the case in this circumstance."

Robinson also explains that even if Miller did not have permission of the cultivator of the original ayahuasca but then took the plant and bred a new variety, Miller could legally patent the variety under U.S. law.

U.S. plant patent laws, developed in the 1930s, were originally designed to encourage the private sector to increase plant-breeding programs and develop better yielding agricultural crops that had heavier fruit and were resistant to disease.

That the patent claim procedure enabled Miller to gain a patent on a plant that is widely cultivated throughout the Amazon, proves that the patent process needs to be revised to protect the intellectual property rights of indigenous peoples, says Hammond.

Attention drawn to U.S. patenting law and the ayahuasca patent by COICA and other groups was one of the factors that led to the Ecuadorian government's refusal to sign a bilateral intellectual property agreement with the United States in 1996. This agreement would have applied rules similar to U.S. patent law to the South American country. Now, U.S. officials are again pressuring Ecuador to sign the agreement.