After months of indecision and confusing signals, the US National Institutes of Health (NIH) has finally put an end to its internationally-denounced patent on the human cell line of a Hagahai indigenous person from Papua New Guinea. I hope this is the end of what is arguably the most offensive patent ever issued." says Alejandro Argumedo of the Canada-based Indigenous Peoples' Biodiversity Network (IPBN).
While not yet officially announced, NIH filed paperwork to "disclaim" the patent at the US Patent and Trademark Office (PTO) on October 24, 1996. The NIH disclaimer forfeits all of the US Government's "past and future rights in each and every claim of United States Patent No. 5,397,696... thereby relinquishing all control over said patent."
"Three up, three down." says RAFI's Executive Director Pat Mooney, referring to the trio of US Government patents and patent applications on indigenous peoples' cell lines that RAFI has opposed. "With Panamanian indigenous people from the Guaymi General Congress, we successfully pressured the US to withdraw its first patent application for an indigenous person's cells." says Mooney. "Later, in collaboration with the Solomon Islands Government, RAFI suppressed another US government patent application for the cells of a citizen of that country."
"Once a patent is granted, it's harder to get rid of." says RAFI's Edward Hammond. "This made the job more difficult in the Hagahai case. Despite initial statements by the US Government that it had the informed consent of the Hagahai and approval of the Papua New Guinea Government for the patent, under a RAFI Freedom of Information Act petition NIH produced nothing to substantiate these claims." But NIH still stubbornly clung to the patent until charges of biocolonialism from indigenous people, NGOs, and foreign governments across the globe forced it to relent.
Even in disclaiming the patent, NIH has left unaddressed many of the numerous inconsistencies and missteps that have dogged the US government since the beginning of the patent controversy in 1994. A backgrounder on the patent recently prepared by NIH "raises many more questions than the few it credibly answers" says Neth Dano of the South East Asia Regional Institute for Community Education (SEARICE) in the Philippines.
"We've been consistent, and right, all along while the US government has equivocated and contradicted itself." says Dano. "If, as the US State Department said, the Hagahai patent was 'for their benefit', why did the US not even bother to contact the Hagahai when it gave up the patent? Why does NIH blame a researcher in Papua New Guinea for the US Government's own patent? The Papua New Guinea Institute for Medical Research has said that it followed NIH's lead."
"While the US may have now disclaimed the Hagahai patent, a trail of trauma and mistrust has been left behind" says Aroha Mead of the Maori Congress. The patent deeply affected indigenous peoples of the Pacific. "It sent a message to Pacific communities that researchers cannot be trusted and it will take a long time to convinvce them otherwise. While the Hagahai patent is dropped, which unsuspecting community will it be tommorrow?"
According to NIH, government notice of the patent disclaimer is slated to appear in the Patent and Trademark Office's Official Gazette on December 10, which is also International Human Rights Day. While the PTO's timing of the announcement appears to be coincidence, indigenous people and NGOs find it poignant and ironic.
"There has been no greater affront to fundamental human rights by Western intellectual property systems than the Hagahai patent," says Argumedo "The disclaimer is cause for celebration for indigenous people. At the same time it gives us all a chance to reflect on the immorality of industrialized countries allowing the commodification of human cells, genes, and other tissues."
Although the US Government's strikeout on indigenous peoples' cell line patents is encouraging, the scope and number of patents on human tissues is dramatically expanding. Opponents of human tissue patents, including indigenous peoples' organizations, RAFI, and other NGOs saythey will remain vigilant in identifying, opposing, and seeking the revocation of claims like the Hagahai patent.