From the Cape Times Newspaper – January 28, 2010 Edition 1, a small Eastern Cape community are elated after taking on a German pharmaceutical giant over a patent to produce extracts from two local plant species – and winning.
“This is the first time that a patent is challenged successfully by Africans. It ends Schwabe’s monopoly over the use of our genetic resources and traditional knowledge,” said Nomtunzi Api, a community representative from Alice.
In a “ground-breaking” judgment in Munich this week, the European Patent Office (EPO) withdrew a patent held by Schwabe Pharmaceuticals to produce an extract from the roots of two species, Pelargonium sidoides and Pelargonium reniforme. The extract is the active ingredient in Schwabe’s popular treatment for bronchitis, Umckaloabo. But the patent for the extraction process was successfully challenged by members of the rural Eastern Cape community of Alice, represented by NGO the African Centre for Biosafety (ACB) and a Swiss anti-biopiracy watchdog, the Berne Declaration.
The patent was also opposed by several of Schwabe’s competitors in a public hearing before the EPO’s Opposition Division. According to EPO spokesman Rainer Osterwalder, the patent was revoked because the extraction process lacked an “inventive step”, as required in accordance with the European Patent Convention.
“The patent has to be novel; there has to be an inventive step,” he said.
In opposing documents, the ACB argued that the process, in which the roots are percolated and macerated, was a “standard textbook” procedure.
“It duplicates extraction methods in current practice with the Alice and other communities since time immemorial.”
The NGO argued that the “broad” patent gave Schwabe the exclusive right – in the 36 countries that are party to the European Patent Convention – to make, sell, import or export the active ingredients of the pelargonium root that have been extracted by water and alcohol. The centre’s Mariam Mayet said the decision was “ground-breaking”.
“This is quite a big victory for us. It sends a very clear sign to international companies that we will not tolerate this kind of exploitation.”
Arguments against the patent were heard by a panel of three pharmacologists and a patent law expert.
Osterwalder said: “Usually, about 5 percent of patents are opposed like this. The point is to ensure no unfair patents are granted, and usually it is competitors who oppose patents.”
He said the Opposition Division’s written decision would be prepared within four to eight weeks, after which Schwabe could challenge the judgment within three months. The pharmaceutical company did not respond to a written request for comment yesterday, but Osterwalder said German media had reported they intended to appeal against the decision.
Should Schwabe appeal, Mayet said: “We will go full force with challenging the appeal.” She said the organisation was also opposing an application by Schwabe to harvest wild pelargonium.