DESLEY BLANCH : A major United States cosmetics giant has become interested in the Kakadu plum and its properties. The company, Mary Kay, has applied for an international patent on the plant extract. They plan to use it in a skincare product.
Concern has been raised about the patent application which has disturbed some indigenous people, including the Mirrar whose traditional lands are in eastern Kakadu. Like other people in the Kimberley, in the northwest of Australia, they traditionally use the plum as bush tucker and medicine. Dr Daniel Robinson is from the University of New South Wales and is an expert in indigenous intellectual property and trade, particularly in Thailand.
ABC Radio's Kieran McLeonard asked Daniel Robinson, why Mary Kay cosmetics might be interested in the Kakadu plum.
DR DANIEL ROBINSON : Well the Kakadu plum is known to be one of the world's highest sources of Vitamin C or ascorbic acid and it has a bunch of other fantastic qualities. It acts as an antioxidant when applied to the skin, so they are interested in the cosmetic applications of Kakadu plum for cosmetic products.
KIERAN McLEONARD : Right so you can eat it, but if you rub it on your skin it will make you look pretty!
DR DANIEL ROBINSON : Yeah, that's right apparently. (laughter)
KIERAN McLEONARD : (laughter) Okay. Do you know if there are other companies that are interested in this property of the plum?
DR DANIEL ROBINSON : Definitely, there are quite a few patent applications on Kakadu plum for various uses, like you say in food products, in herbal compositions and also some used in cosmetic and health and beauty products. So there are a few products that are actually already on the market, shampoos and body washes and things like that, so there is quite a few companies that are already interested in this and already working with Kakadu plum.
KIERAN McLEONARD : Mmm, Now when you heard about this, I gather it rang a few bells for you. You've been involved in -- what similar cases in Thailand?
DR DANIEL ROBINSON : Yeah, that's right. I've done quite a bit of research on indigenous and traditional knowledge relating to biological resources and I have been looking at the issue of bio-piracy or misappropriations of biological resources and indigenous knowledge.
KIERAN McLEONARD : Well, I know you have done your PhD on this and - tell us about the Thai situation?
DR DANIEL ROBINSON : There's some interesting laws that have been developed in Thailand to protect traditional medicines and to protect local plant varieties and those have come out of a number of controversies relating to jasmine rice, which is one of the big concerns, where some jasmine rice plants have been taken overseas, into the US in particular for further research. There was also controversy surrounding a trade mark on Jasmati variety. It's actually just a trademark not a patent in that case but there was a lot of confusion around that incident and it's actually not jasmine rice that was trademarked. So there is a number of intellectual property issues that go beyond patents, but quite often patents have been controversial on biological products.
KIERAN McLEONARD : But the sort of core issue that overlaps with the situation we're talking about now the Kakadu plum, is that there are forms of indigenous knowledge or indigenous practice which are already known and yet which corporations seek to patent as if they have invented them as if for the first time. Is that your concern?
DR DANIEL ROBINSON : Yeah, that's one of my main concerns. Quite often, you have got indigenous knowledge of plants and their uses for medicinal or in this case might be cosmetic purposes, or for those food products and companies have tried to develop products from on the basis of that knowledge, but when they've applied for a patent, that essentially when receiving a patent that provides a 20 year monopoly, and so a lot of people have questioned the ethical grounds of doing this, applying for a patent for a monopoly on something that is essentially based on indigenous knowledge.
KIERAN McLEONARD : And this is where this very vivid term bio-piracy comes in.
DR DANIEL ROBINSON : Yeah, that's right. It has been used by NGOS and activists, the most prominent one being Vandana Shiva in India.
KIERAN McLEONARD : So let's talk about the Kakadu plum. So you heard about this and I gather you have been contacted by some people in the local or one of the local communities, the Mirrar. What did they say to you or why did they get in touch?
DR DANIEL ROBINSON : I wrote this discussion paper on Kakadu plum to try and get a bit of clarity about this patent application by Mary Kay Inc. I have sent it around to various groups and they have obviously received it from NAILSMA which is based in Darwin.
KIERAN McLEONARD : What's NAILSMA ?
DR DANIEL ROBINSON : Northern Australian Indigenous Land and Sea Management Alliance and their traditional knowledge officer passed that onto a number of groups who expressed a bit of concern about the ability of a company to get a patent on something that seems to have been derived from indigenous knowledge.
KIERAN McLEONARD : Well, one of the letters you've got says the Gundjeihmi Aboriginal Corporation represents the Mirrar people whose traditional estates are located in eastern Kakadu. It goes on - the Kakadu plum is a local species, that traditionally has been used as bush tucker and as medicine by the Mirrar and other people from Kakadu, and the Western Arnhem Land regions of the Northern Territory and they are concerned about this announcement that the plum is going to be patented. So that's typical is it of the contacts you have been getting?
DR DANIEL ROBINSON : Yeah, that's right. I think there is a lot of uncertainty about it and essentially what I have put out is a discussion paper, because I want to try and get some clarity on this. So people don't know how this is going to impact them and they don't know how this company obtained the materials, who they spoke to in terms of obtaining knowledge about the uses. So they are concerned and they are trying to find out more information. I'm hoping to get some more feedback from these communities as well, in terms of how they have used it in the past. And by documenting those past uses, it can be useful to defend indigenous intellectual property rights essentially.
KIERAN McLEONARD : I mean there have been other attempts to patent this plum, haven't there Daniel?
DR DANIEL ROBINSON : Yeah, that's right. There has been a few applications and a few patents granted on...now, the patents have different scope, so this particular patent by Mary Kay Inc., it's on an extract of Kakadu plum to be used in a composition, potentially with the use of an acai berry which also has very high Vitamin E content. There are other patents which are on processes and on use in a herbal product or something like that. This one is a bit more concerning, because it's on an actual extract of the plant.
KIERAN McLEONARD : Okay, so why are you particularly concerned about this. Just unpack that a bit more for us.
DR DANIEL ROBINSON : There's been concern particularly relating to extracts and derivatives in for example, the convention on biological diversity, some of the negotiations surrounding that.
KIERAN McLEONARD : This is the UN Convention?
DR DANIEL ROBINSON : Yeah, the UN Convention on Biodiversity, because it can limit future use of products based, that are essentially using similar extracts. So that monopoly granted by the patent can affect other commercial operations, whereas processed patents are not quite as likely to affect other commercial uses.
KIERAN McLEONARD : What's a process patent?
DR DANIEL ROBINSON : There is a process patent on a method to obtain Kakadu plum powder by a US company, so it's on the process of getting that powder.
KIERAN McLEONARD : Oh, I see. So a process patent is on a way of doing a particular operation whereas the sort of patent we're talking about this a patent for the stuff itself?
DR DANIEL ROBINSON : Yes, that's right.
KIERAN McLEONARD : Yeah, I see. Now if you patent a use, as I understand it, the use you are proposing has to be novel, is that right?
DR DANIEL ROBINSON : Yeah, that's right. For a patent to be granted, and this patent application is only at that application's stage, so for it to be granted it has to be novel and it has to be inventive or non-obvious. So I have been questioning those two elements of this patent application.
KIERAN McLEONARD : Yeah, because you're saying it is not novel, it's Vitamin C and we know it's good for your skin. Is that your point?
DR DANIEL ROBINSON : There's two things. I guess with novelty, there is obviously indigenous knowledge and use of this plant and there are also companies who are already using Kakadu plum, because it has these particular benefits for healthcare products.
KIERAN McLEONARD : Oh, it's already in the market.
DR DANIEL ROBINSON : Yeah, there are a number of the companies in Australia that use it, like I said for shampoos and things like that, so it is being used and then it is a question of inventiveness. So we know that ascorbic acid or Vitamin C acts as an antioxidant and is good for the skin essentially and there are a number of papers by dermatologists to this effect, so that goes to the inventiveness of this. So using some of that plum or the acai berry in Brazil in this composition, I am arguing that the Patent Office has to have a very close look at this, because it could be considered to be obvious by someone who is trained in the art of dermatology, so yeah, the Australian Patent Office needs to take a close look at that, those existing documents relating to extracts of Vitamin C and their use in cosmetic products and products for the skin.
KIERAN McLEONARD : Mmm. Now Daniel, you did mention the UN Convention on Biological Diversity. As I understand it the convention does require something called benefit sharing. What's that about?
DR DANIEL ROBINSON : That's right. The UN Convention on Biological Diversity has a bunch of rules for access relating to biological resources and also to traditional knowledge. The convention itself and the convention has to be implemented into national laws and has been in Australia, and so to access biological resources, so to obtain them for research purposes, companies are generally required to set up a benefit sharing arrangement which is essentially -- it can be a monetary exchange, so providing money back to the providers of biological resources and that can be national authorities and often it's also indigenous communities.
So yeah, that's how a benefit sharing arrangement should be set up for biological resources. But there is a loophole in the Australian laws essentially, so we have biological resources laws and we have bio-discovery laws and they are both state and federal government and the issue is if you obtain biological resources commercially, so you have got to get a permit essentially for research purposes, but if you obtain them commercially and then take them away, outside the Australian jurisdictions then you can conduct the research on them later.
KIERAN McLEONARD : So you mean, sorry, if the company went into the region, into Kakadu there and picked the plums, they would be required to have engaged in some sort of consultative process with the traditional owners, but if they rocked up to their local nursery and managed to buy the plants there, no such consultation would be required. Is that the issue?
DR DANIEL ROBINSON : Yeah, I think that is the issue. I think that is where the gap is in the Australian laws. That's right. I have spoken to state and federal government authorities and they don't seem to know where Mary Kay obtained the biological materials for this particular case, so they believe they have obtained it commercially. They don't seem to have got a permit from either the Queensland, Northern Territory or the W.A. state governments, so.
KIERAN McLEONARD : And have you had any contact with Mary Kay?
DR DANIEL ROBINSON : I have tried to contact Mary Kay a few times. I would like to get some clarity on these concerns and I have not had any feedback yet.
DESLEY BLANCH : Dr Daniel Robinson is from the Institute of Environmental Studies at the University of New South Wales.
And if you would like to revisit a story, just go to our web site where you can download the program, listen online or read a transcript.
So until the same time next week, I'm Desley Blanch saying bye for now.
Dr Daniel Robinson
Institute of Environmental Studies
University of New South Wales, Sydney, NSW 2052