Biopiracy exploits indigenous communities profiting off of their generational knowledge

The greatest criticism of the expropriation of indigenous medical knowledge by for-profit companies is that it is simply unfair.55 These critics argue that pharmaceutical companies are permitted to realize millions of dollars in sales from some traditional remedies with little or no payment to the actual indigenous knowledge holders.56 Critics of the Turmeric Patent leaned heavily on the perceived unfairness of patenting a remedy that had been used to heal wounds in India for hundreds of years.57 It was also an issue in Eli Lilly’s use of the Madagascar rosy periwinkle, which generates $100 million in sales for the company annually.58 Ironically, the patenting of traditional knowledge may cause the sale of products embodying traditional knowledge to the traditional knowledge holders at monopoly prices.59 Such sales, however, would have to occur within the United States to obtain the benefit of the monopoly a U.S. patent would provide.60 The most egregious examples of the exploitation of traditional knowledge can occur when individuals and companies are prevented from utilizing knowledge that they had been using for centuries. An American patent does not preclude exportation of the patented invention to foreign countries, but it does prevent importation of products embodying the claimed invention to the U.S.61 Due to the threat of legal action, many such entities in countries that serve as the source of traditional knowledge have been precluded from using that knowledge.62 For instance, despite a history of the use of kwao krua by the indigenous people of Thailand, threats of legal action have disrupted local production of the herb.63 In India, individuals and companies had been using extract from neem trees for centuries to repel insects and bacterial diseases.64 Once a patent on a variation of this extract was granted to W.R. Grace & Co., the company sought to force Indian companies producing neem-based products to license its technology.65 Local companies feared that this patent would preclude them from exporting goods to the U.S. market and would drive up the price of neem seeds.66 By depriving Indian companies of their ability to export certain neem-based products to the world’s largest economy, the neem patent deprived Indian people of their ability to exploit their indigenous knowledge within the world economy.67 This led to a worldwide campaign to cancel the patent.68 By allowing for patent protection on inventions derived from traditional knowledge, the use of the traditional knowledge itself amongst indigenous people may be eroded.69 Not only is the patenting of these traditional remedies unfair to the indigenous knowledge holders, it is also unfair to the public, who grants the “inventors” of these remedies the right to exclude others.70 The grant of patent protection to inventors is based on a quid pro quo with society. Inventors agree to disclose their discoveries to the public through the patent’s specification and, in return, the public grants them an exclusive right to exploit those discoveries for a limited time. In this way, both the inventor and the public benefit from the protections that patent law provides. This paradigm breaks down, however, when the discovery to be disclosed is already known to the public. If the invention has been used publicly for thousands of years, there is no benefit to the public in granting the patentee the exclusive right to exploit it. When well-known traditional knowledge is patented, there can be no quid pro quo, and the public does not get the benefit of its bargain.