Juan Guerrero

Ayahuasca case: Loren Miller

The origin of biopiracy can be found within the colonial era, when European powers
discovered new land and seized control of much of what is now known as the global
south . As Europeans colonized, they appropriated any resources they considered to be
profitable, and gave nothing in return to the indigenous communities whose people had
used the resources for generations. Such exploitation is not just a thing of the past.
Biopiracy continues to be a reoccurring problem for indigenous groups who are now
faced with modern government policies and laws that make it difficult to challenge cases
of biopiracy. (Aldred, 2010)
In the Amazonian region of South America, there are two cases in particular that
demonstrate how indigenous communities have fought against patent laws and the
American government to win back the rights to their intellectual property: the case of the
ayahuasca plant and the case of the Peruvian maca plant. In the first case that of the
ayahuasca plant the indigenous people were unsuccessful in their attempt to win back
the rights to the plant while in contrast, the second case that of the Peruvian maca
plant is an example of one of the few successful instances of an indigenous group
winning back control of their intellectual property.
In each case it was government patent laws that affected the indigenous peoples
ability to fight for their intellectual property rights and by comparing the two cases, one
may see how certain policies, that respect the indigenous culture can lead to success.
As more and more cases of biopiracy arise each day, indigenous communities continue
to be taken advantage of by foreign companies and countries and it is the job of their
governments to instate policies which protect not only their intellectual property rights
but that respect their cultural values. By looking at the effects of patent laws on
biopiracy, we can determine which policies best serve these indigenous communities
and should be adopted by nations within the Amazonian region.
In order to understand the role patents play in cases of biopiracy, one must first
understand biopiracy itself. At its most basic level, biopiracy is when knowledge from
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indigenous communities is taken by an outside individual or group who then claim to

own that knowledge and are able to then sell it for a profit. It occurs, as explained by
Leanne Fecteau, Boston College Third World Law Journal editor, when researchers are
not bound to share in the profits from their patented items with the indigenous tribes
from whom they gained critical knowledge.
Bioprospecting, as biopiracy is sometimes referred to as, is just a way of describing
the act of biopiracy in a less inflammatory manner by using a word with less negative
connotations. Whether it is called bioprospecting or biopiracy has no affect on the
nature of what is actually occurring: wealthy foreign companies from the global north are
making huge profits off of and taking credit for the knowledge of the indigenous
communities of the global south.
Though biopiracy has existed since the colonial era, we see a huge rise in the number
of cases in the 20th century due to significant changes in U.S. patent law. The first of
these changes was in the 1930s, when Congress passed the Plant Patent Act, which
allows any person who has invented or discovered and asexually reproduced any
distinct and new variety of plant, other than a tuber-propagated plant. For the first time,
not only in U.S. history but also in world history, living organisms could be patented.
Then in 1970, patent coverage was extended to sexually reproducing plants through
passage of the Plant Variety Protection Act (PVPA). Finally, in 1980 in U.S Supreme
Court case Diamond v. Chakrabarty the court found that genetically modified organisms
could be patented. Each change in patent law allowed for more and more living
organisms to be classified as patentable and each change in patent law lead to
increases in the number of cases of biopiracy. (Coombe, 2007)

In 1981, Loren Miller, director of California-based International Plant Medicine

Corporation, took a sample of ayahuasca back to the United States. Miller then
patented it with the U.S. Patent and Trademark Office, claiming a new plant variety he
called Da Vine, and in 1986 obtained exclusive rights to sell and breed the plant. It was
not until ten years later that Amazonian native people became aware that one of their

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sacred plants was now under U.S. patent law. By 1998, Miller had received, and
ignored, repeated requests from indigenous groups to give up the patent.

Finally, the Coordinating Body for Indigenous Organizations of the Amazon Basin
(COICA), a group based in Ecuador and representing over 400 indigenous groups from
eight countries, decided to take action. Our goal is to have the ayahuasca patent
annulled, and to teach all international biopirates a lesson, said Rodolfo Asar,
communications director of COICA.The organization informed its members that Miller
was an enemy of indigenous peoples, and that his entrance into all indigenous
territory should he prohibited.

A war of words ensued. The organization posted a notice on its website stating that it
would not be responsible for any physical harm to Miller if he ventured into indigenous
territory. Miller said he was given a sample of the plant by an indigenous community in
Ecuador, but he refused to identify the community on the grounds that he wanted to
protect residents from COICA, which he called a terrorist organization that had ruined
the reputation of his business.

Charging that the patent was improperly issued, indigenous groups challenged the
claim at the U.S. Patent and Trademark Office, with the help of two Washington-based
organizations, the Center for International Environmental Law and the Coalition for
Amazonian Peoples and their Environment. The Plant Patent Act of 1970 was intended
to protect growers breeding new plant varieties, and requires the person requesting the
patent to be the original breeder. Since ayahuasca is widely used throughout the
Amazon, and, botanical experts said, the patented plant was exactly the same as the
natural variety, Miller could not claim to have been the inventor of the plant, and thus

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was not eligible for a patent. The shamans asked that the validity of the patent be
reviewed on these grounds, and that request was approved. (Echeverria, 2011)

Indigenous people of the Amazon have learned how to use photo opportunities.
Querubin Queta Alvarado and Antonio Jacanamijoy Rosero, spiritual leaders of their
Amazonian tribes, appeared at the headquarters of the U.S. Patent and Trademark
Office wearing traditional garb beads, feathers, and piranha teeth. Under their arms
were official protest documents prepared by their attorneys.

In the fall of 1999, the PTO nullified the patent on the grounds that a specimen like
Millers was on display at Chicagos Field Museum at least a year before he applied for
a patent. Our shamans and elders were greatly troubled by this patent, said Antonio
Jacanamijoy Rosero. Now they are celebrating.

While the PTO had accepted the arguments that the claimed plant variety was not
distinctive or novel, it had not acknowledged the argument that its religious value
warranted an exception from patenting. In apparent violation of its own procedures, the
PTO allowed Miller to submit new evidence and arguments, centering on the differences
between his ayahuasca plant and museum reference plants. In January 2001, without
having heard opposing views, the PTO reversed its rejection and, in April, issued a
certificate allowing the patent to stand for the remaining two years of its term.

Ironically, after all his legal efforts, Miller was left with a patent that was virtually
valueless. The patent he received protected only the specific genome of the patented
plant and its asexually reproduced progeny that is, exclusive rights over nothing
more than his original plant and specimens grown from its cuttings. It did not give him
rights over any other specimens of the ayahuasca vine, even specimens that might be
identical in appearance. (Centre for International Environmental Law, 2008)
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Under the law, a patent applied for before 1995 expires seventeen years from the date it
was originally issued. The ayahuasca patent expired on June 17, 2003. It cannot be
renewed.
As described above, upon learning of Loren Millers patent on ayahuasca, many
indigenous tribes of South America organized to oppose the patent on the ground that
the vine was a sacred religious symbol and a known medicinal herb.This effort by the
indigenous tribesmen and their attorneys proved very successful, and on November 3,
1999, the United States Patent and Trademark Office (PTO) ultimately rejected Millers
patent.108 This section will describe in more detail the history of this patent and its
eventual revocation.

In 1974, a tribe in Ecuador gave Loren Miller samples of a local ayahuasca vine. In
return for the plants, Miller claims to have built a school for the tribes people. Upon
returning to the United States, Miller cultivated the plant in Hawaii and developed a
stable variety that was eligible for a patent. He then formed a small company,
International Plant Medicine, to investigate whether the plant had any useful purpose.

In 1986, Miller obtained a plant patent on his ayahuasca, which he called Da Vine. In
his patent application, he stated merely that he had originally obtained the ayahuasca
from a domestic garden in the Amazon rain-forest of South America. He claimed that
Da Vine [*PG85]represented a new and unique variety of ayahuasca distinct from other
forms primarily because of the color of its flower petals. (Propiedad Intelectual Ecuador,
2010)

In 1994, the Coordinating Body of Indigenous Organizations of the Amazon Basin

(COICA) discovered that Miller had obtained a patent on ayahuasca. Perplexed at the
idea of an outsider discovering a plant that had been used by their ancestors since
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ancient times, some tribes in Ecuador reacted in a hostile form. One coalition actually
issued a threat of bodily harm to Miller should he ever return to the Amazon Basin.
This threat, in turn, led the United States to cancel all aid to the indigenous tribal group.
COICA also learned that Miller intended to build a pharmaceutical laboratory in Ecuador
to process ayahuasca. This discovery prompted fear among COICA members that a
bilateral intellectual property reciprocity agreement being forged between the United
States and Ecuador would force indigenous peoples to recognize Millers proprietary
rights over a plant which they viewed as sacred.
COICA and the Amazon Coalition both decided that the best way to assert tribal rights
to their cultural knowledge and their sacred plant was to object formally to Millers
patent.122 The tribal organizations set out to use the U.S. patent law as a tool in their
fight.123 They began working with attorneys at the Center for International
Environmental Law (CIEL) to prepare a Request for Re-examination of the patent.124

Attorneys from CIEL filed the Request for Reexamination of the ayahuasca patent on
March 30, 1999. In their Request, they argued that prior art revealed that Da Vine was
not, in fact, distinct or new, thus failing the Patent Acts requirement of novelty. Millers
patent application described ayahuasca as it was already illustrated in scientific
literature and known by indigenous Amazonian peoples. The CIEL attorneys further
argued that the Da Vine patent violated the Plant Patent Act because the vine is found
in an uncultivated state. Lastly, the attorneys charged that the patent on ayahuasca
violated the Patent Acts utility requirement because issuing a patent on a plant that is
sacred to indigenous peoples violates notions of public policy and morality. (Centre for
International Environmental Law, 2013)

On May 28, 1999, based on the fact that Da Vine was identical to other specimens of
ayahuasca found in U.S. herbarium collections, the PTO granted the Reexamination
Request. In November 1999, after reviewing the facts, the PTO ordered the rejection of

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Millers patent on the narrow ground that the same plant had been described in
herbarium sheets in Chicagos Field Museum over a year prior to Millers application.

By revoking the ayahuasca patent on these narrow grounds, the PTO failed to address
the more significant issues of whether the prior use by indigenous tribes or the fact that
the plant was a sacred religious symbol precluded issuance of the patent. In the
absence of any attempt by Congress or the U.S. PTO to address the issues raised by
the ayahuasca patent, many developing nations have enacted laws making it more
difficult for researchers from developed nations to study indigenous plants and animals
for possible medicinal value. (Demange, 2002)
In particular, the ayahuasca patent controversy has led Ecuador to reject a proposed
bilateral intellectual property rights agreement with the United States. Ecuador was
likely on its way to signing the agreement prior to this controversy. As the ayahuasca
controversy demonstrates, U.S. patent policy (and policies of other developed nations)
inevitably leads to international conflict and protectionist response from developing
nations. As a result, the resources of developing nations are often effectively cut off from
the world, to the detriment of nations on both sides of the dispute. In order to effectively
prevent similar reaction from developing nations in the future, the time is ripe to reevaluate and reform U.S. patent policy.

In order to avoid the ill effects of biopiracy that are demonstrated by the ayahuasca
controversy, the United States should reform its patent policy in three distinct ways.
First, the PTO should give greater consideration to the morality component of the utility
requirement when deliberating an inventions patentability. For instance, Loren Millers
patent should have been refused on the basis that it was immoral to grant a property
right in a religious symbol. Second, the United States should recognize foreign prior use
as a prior art under the Patent Acts novelty requirement. Such recognition would
prevent biopirates like Loren Miller from claiming an exclusive patent right over plants
which have been used by indigenous populations for centuries. (Adelaars, 2011)
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Furthermore, recognizing prior foreign use would likely help to convince

underdeveloped nations to stop restricting researcher access to their diverse
ecosystems. Finally, the United States and other signatory nations should reject TRIPS,
as it presently reads, in favor of a reformed treaty which provides a more equitable
distribution of the rights over, and benefits deriving from, the worlds biodiversity. To that
end, the United States should support an effort to integrate some of the goals of the
1992 Rio Biodiversity Convention into the TRIPS agreement.
In the case of the Peruvian maca, the company Pure World Botanicals currently holds
four U.S. patents on parts of the maca plant, a root vegetable originally cultivated and
consumed by the indigenous communities of Peru. The root has been called the one of
the lost crops of the Incas and has been stable in the diets of the natives. Its value as
a highly nutritional food source as well as its medicinal qualities makes it an important
resource for the indigenous people.
The four patents give Pure World Botanicals sole ownership of a cellulose-free version
of the maca plant extract; the extraction technique; how the plant can be used to treat
sexual dysfunction in humans and animals and how the drug can be administered to
humans and animals. Within these patents, the company openly acknowledges that
indigenous peoples had previously made use of the plants medicinal qualities and were
aware of its propensity for treating sexual dysfunction.
The company recognized that the indigenous used the maca root in ways extremely
similar to how the company was making use of the plant and yet U.S. patent policy still
allowed for them to be granted the patent. In the early 2000s, when the Peruvian
government learned of Pure Worlds patent, they decided to try and revoke these
patents, on behalf of its indigenous populations, since they did not consider the maca
plant to be a new invention. (Alexander, 2008)
The government of Peru is able to do so because they have laws declaring it impossible
to hold patents on parts of plants, including extracts. In her article on the maca case,
Landon highlights how they avoid designating which groups have the right to the plant
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by keeping it in the realm of communal knowledge. Rather than demanding royalties

from Pure World Botanicals or issuing a patent in the name of a particular indigenous
community, the Peruvian government sought only to revoke the patent, and their laws
forbidding certain types of patents allowed them to do so. My forbidding certain patents
altogether the Peruvian government has established policies, which respect the cultural
values of the indigenous community and make it possible for the indigenous people to
protect their intellectual property while maintaining their cultural beliefs.

As long as the economic and political systems of the U.S. and Europe dominate
globally, Eurocentric patent laws will continue to threaten the culture of the indigenous
communities of the Amazon. These patent laws are one of the main reasons that
biopiracy continues to be a problem in the global south. They disregard cultural values
that do not meld with a Eurocentric way of seeing the world.
As U.S. patent laws have started to become the standard by which other countries in
the global north shape their patent systems, more challenges are created for the
indigenous communities of the global south as they are faced with more and more
cases of biopiracy and the loss of their own culture. Through our case studies of the
ayahuasca and maca plants, it is important to note not only the inherent faults of U.S.
patent policy that led to these cases of biopiracy, but also that the indigenous societys
government has the ability to support and to protect the indigenous peoples rights
through the installment of their own patent policy. (Cuthbert, 2002)
Though it could be argued that there are ways in which U.S. patents require indigenous
groups to receive royalties or compensation for their role in leading to an invention,
these are inadequate measures of acknowledging the indigenous communities
contributions and only further disregard the communal knowledge of indigenous
societies. It is important for governments within the global south to improve their patent
policies in ways that help to protect the rights of their indigenous communities. Rather
than giving patents to the indigenous groups, the most successful patent policies are
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those that acknowledge the idea that communal knowledge is a sort of intellectual
property that cannot be patented to a certain individual or group. Patent policy policy
should instead create laws that deem certain things unpatentable in order not only to
put a stop to biopiracy but also to defend and protect the culture of the indigenous
peoples.

Bibliography
Adelaars, A. (2011, 7 2). Court case in Holland against the use of ayahuasca by the
Dutch Santo . Holland: Santo Daime Journal.
Aldred, L. (2010, 5 8). Plastic shamans and astroturf sun dances: New age
commercialization. USA: American Indian Quarterly Journal.
Alexander, B. (2008, 5 6). The globalisation of addiction: a study in poverty of the
spirit. Oxford: Oxford University Press.
Centre for International Environmental Law. (2008, 5 7). Request for reexamination
of US Patent: 5,765. Washington, USA: CIEL Publications.
Centre for International Environmental Law. (2013, 5 9). The ayahuasca patent case.
Washington, USA: Ciel Press.
Coombe, R. (2007, 10 6). The properties of culture and the possession of identity:
postcolonial struggle and the legal imagination. New Bunswick, New Jersey,
USA: Rutgers University Press.
Cuthbert, D. (2002, 6 10). Beg, borrow or steal: the politics of cultural appropriation.
USA: Post Colonial Studies.
Demange, F. (2002, 10 9). Amazonian vegetalismo: a study of the healing power of
chants in Tarapoto. London, UK: University of East London.
Echeverria, M. (2011, 5 20). Quien Descubrio la Hayahuasca. Quito, Pichincha,
Ecuador: Univeresidad San Francisco de Quito.

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Propiedad Intelectual Ecuador. (2010, 4 7). Piratas Terrestres: Ayahuasca. Quito,
Pichincha, Ecuador: Instituto Ecuatoriano de Propiedad Intelectual. Retrieved
from http://www.propiedadintelectual.gob.ec/biopirateria/

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