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Peru: Legislation to protect biodiversity restricts patents

World Intellectual Property Report | Volume 18 Number 7 | Thursday, July 1, 2004

Legislation to Protect Biodiversity
Restricts Patents, Creates Commission

LIMA — The Peruvian Congress has passed legislation to protect the country’s biodiversity by restricting patents on biological resources. The Law Protecting Access to Peruvian Biological Diversity and the Collective Knowledge of Indigenous Peoples (Law 28216) was published in the official gazette, El Peruano, on May 1 and entered into force on that date.

The legislation creates a national commission under the auspices of the prime minister’s office that will design strategies to protect the country’s biological diversity. The commission is charged with creating a list of Peru’s biological resources and drafting new laws to protect the country from "biopiracy". In addition, the commission will review patents using Peruvian biological resources that have been granted locally and internationally, and undertake actions to have these patents revoked.

U.S. Patent at Issue

This clause of the legislation stems from an August 2002 decision by the U.S. Patent and Trademark Office to grant a patent to New Jersey-based PureWorld Botanicals for an extract using maca, a root grown only in Peru. Representative Pedro Morales, one of the co-sponsors of Law 28216, said patents like the one granted to PureWorld are "a direct threat to Peru’s biological diversity and the potential wealth the country could generate by using its resources responsibly".

Morales represents the central highland department of Junin, where the bulk of the maca crops are grown. Maca is marketed as an energy booster and is often promoted as a natural remedy for erectile dysfunction.

FTA Discussions With United States

Morales and other lawmakers, including Representative Paulina Arpasi, the first native Aymara in the Peruvian Congress, said Law 28216 is particularly important now that Peru is negotiating a bilateral free-trade agreement with the United States. Northern neighbors Colombia and Ecuador are also involved in the free trade pact negotiations. The goal is to have the agreement ready by mid-2005.

"Our aim is to ensure that Peru’s biological species and the traditional use of these species is protected," said Arpasi.

At a briefing with journalists in mid-June, Peru’s chief trade negotiator, Pablo de la Flor, said that while the United States was proposing a very ambitious agenda for intellectual property rights, including biological material, Peru had its own proposal.

"There is a lot of talk about pirating CDs and videos, but little discussion of biopiracy. We have an interesting proposal" on the protection of access to genetic material, said de la Flor, who did not elaborate.

Copyright © 2004, The Bureau of National Affairs, Inc.