Zain Isnaeni Adnan, Jakarta Post 7 Nov 10;
“California has nothing but a desert and Intellectual Property [IP].” This statement by the American commercial attaché at the Jakarta Business Dialogue in 2009 is also true for other countries with few natural resources but a strong culture of innovation. Hence the rise of Japan, Germany, South Korea and other countries with little or no natural resources. Tiny Singapore utilizes the strength of its financial sector and ease of doing business to compensate for its lack of resources. Jeffrey Sachs even wrote a paper analyzing “the curse of natural resources”. That statement is true for Indonesia — cursed with abundant biodiversity.
In countries such as the United States with abundant resources, states like California have bucked the “curse”. This is exemplified by the rise of Silicon Valley and, prior to that, the emergence of Hollywood. Countries such as China and India, with some natural resources, have also shown that innovation and IP is important.
Numbers of patent applications from China and India have increased, while applications from Indonesia are nonexistent. Data from the Indonesian Directorate General of Intellectual Property shows that 95 percent of applications are from foreign companies. Compare this with China’s 50 percent.
So are products based on biodiversity or IP worth protecting in a country such as Indonesia? Do we have assets worth protecting? Are they protectable?
An Oct. 21, 2010 Kompas article laments the patenting of temulawak ginger or Javanese turmeric (Curcuma xanthorrhiza Roxb). The article claims that Javanese turmeric is part of Indonesia’s biodiversity, and there should be a benefit sharing scheme.
Such benefit sharing has been discussed for more than a decade by the World Intellectual Property Organization’s (WIPO) Inter-Governmental Group on Genetic Resources and Traditional Knowledge, and for more than four decades by the precursor to the WIPO. Countries such as Indonesia, Brazil and India want to protect their biodiversity and want benefit sharing schemes.
Developed countries, where most pharmaceutical companies are based, say such schemes would drive up costs in what is already the costly production of medicine.
Another forum working on these issues is the Convention of Biological Diversity. The United States is notably not a signatory, and many developed countries are only observers in the United Nation’s Environmental Program’s treaty. A benefit sharing scheme is therefore unworkable.
There is an added difficulty in having patent applications include the source of a base ingredient such as turmeric. Aside from Indonesia, Indian and Chinese traditional medicines have used Javanese turmeric for centuries, and even proving that the plant originates in Indonesia would be difficult.
However, if the patent for key elements of turmeric passes the patent examination and is registered to one company, the use of this ingredient would benefit only the patent owner, which in most cases is a multinational corporation.
If Indonesia is serious about protecting its IP or its biodiversity-derived products (in some cases materials), it should prepare patent oppositions to prove that such products have been used in medicine. Patent examiners can use this to ascertain whether the product or material is novel, requires an inventive step and is industrially applicable.
In the 1990s, NGO’s were at the forefront of a public campaign against Shiseido of Japan’s patent applications for various traditional herbs and cosmetic ingredients. The public outcry caused the company to withdraw its applications.
Unfortunately, that simply caused biodiversity-based products to be protected by trade secrets.
Some may be skeptical of Indonesia’s ability to defend its rights, but Indonesia did just that when it stopped providing samples of the avian flu virus to the World Health Organization.
Another step is simply to request benefit sharing from multinational corporations that use Indonesia’s biodiversity products.
A database to collect this information has been in the works for years with mediocre results. Scanning through patent applications at the patent offices of industrialized countries may be simpler.
Until the government decides to take action, Indonesia will remain a spectator in the utilization of its rich biodiversity.
The writer is a Jakarta-based IPO consultant.
