Nigerians demand collaboration on the protection of intellectual property rights

caption: Chika A. Ezeanya

By Chika A. Ezeanya

The year was 2002, three years before his appointment as the Chairman of the Independent National Electoral Commission (INEC). University of Bradford trained; Professor Maurice Iwu secured US Patent application number  #6,403, 576 for the extracts of five species of Nigerian plants, proven by the local population to be of medicinal value.

The US Patent application was published for Aframomum aulocacarpus, Aframomum danelli, Dracena arborea, Eupatorium odoratum, Glossocalyx brevipes and Napoleonaea imperialis.  Iwu, together with five other co -researchers claim in the application that the plant species are indicated for the treatment of fungal infections and elimination of parasites in humans and animals.   Iwu and his cohorts put up the patent for sale in the global pharmaceutical research and development market. It is not known how much money accrued to Professor Iwu from the deal; royalty payments on patents could sometimes run into several million dollars.

Prior to the 2002 transaction, Professor Iwu had in 1991 obtained patent for the medicinal uses of a yam specie found in Nigeria , for Shaman Pharmaceuticals a now bankrupt US bio-prospecting company.  In 1994, a year after he left his position as Professor of Pharmacognosy at the University of Nigeria , Iwu was listed as co-inventor of several Nigerian medicinal plants whose patent has been sold to the US Army. 

The extent of Professor Iwu’s treachery and its grave implications for Nigeria can only be fully understood within the workings of the global intellectual property laws covering patents, copyrights, and others.  The World Trade Organization (WTO) rules governing intellectual property rights stipulate that when a patent is filed for a product in one country, effective from the date of filing, similar patent must not be filed in any other country by another patentee. What this principle translates to, is that although the extracts of certain plants exclusive to Nigeria such as uziza,  gbogiri or ugu leaves, are proven to be efficacious  by the local communities in the treatment of anaemia,  the patenting of such by a pharmaceutical company in the United States grants that company exclusive rights over the  development and commercial use of uziza,  gbogiri and ugu. From the date of the patent filing, therefore, Government of Nigeria, must, as a matter of a binding agreement entered into as one of the WTO signatories, desist from profiteering from the plant in question through research or commercialization of its healing potentials. Patent laws protect the expression as well as the idea, its implementation and or dissemination. Only the patent holder is granted the right to make, the right to use, the right to sell, and the right to authorize others to sell the patented idea. Professor Maurice Iwu has technically denied Nigeria and Nigerians any possibility of ever developing or profiteering from the patents he secured, choosing to profit exclusively from them.

Professor Iwu is not alone in this drive towards the sale of Nigeria ’s biodiversity to the West for personal gains. Several Nigerian scientists, researchers, students and ordinary citizens, resident and in the Diaspora have been known to collude with Western interests in selling off the plant resources of the country. Professor Iwu’s act could, however, be considered more treasonable. Maurice Iwu was the United Nation’s Lead Consultant for the development of Nigeria ’s National Biodiversity Strategy and Action Plan. The position granted him unlimited access to the rich medicinal indigenous knowledge of the country; he was sworn in to utilize his expertise in crafting laws towards their protection. Professor Iwu has also served on the board of the Fund for Integrated Rural Development and Traditional Medicine. In the 1990s, he attended several Conventions on Biological Diversity meetings as a representative of the Nigerian government, where the focus was on protecting indigenous knowledge from Western exploiters. Professor Iwu can never claim ignorance of, nor excuse the grossly subversive nature of his actions in patenting Nigeria ’s common heritage.

Moreover, the very idea of patenting Nigeria ’s indigenous knowledge of plant medicinal properties is inherently contradictory to what patent represents. The most notable requirement of patent is that the invention defined in the claim for patent protection must be new or novel. A patent claim is invalidated if the invention was publicly known prior to the time of invention stated on the application.  Another notable requirement of patent is the principle of non obviousness, which stipulates that the invention must not be obvious to one ordinarily skilled in the relevant art at the time the claim was filed. In this sense, since the medicinal usage of the plant was already known to the indigenous Nigerian communities using them, it is neither novel nor non-obvious, therefore, Professor Iwu and his cohorts do not have any right to appropriate such “common” knowledge for their personal enrichment.

One of the most widely celebrated cases of unauthorized and exploitative transfer of indigenous pharmacology in Africa is the case of the obesity management drug, the hoodia gordini. Known to the San ethnic group found in the Kalahari area of Southern Africa as Xhoba, the cactus like plant has been chewed for centuries by the hunting men of the ethnic group to keep hunger at bay before embarking on day long expeditions. Pfizer, through the British based Phytopharm, was the first to secure the global development and marketing license of this herb renamed P57. Phytopharm was quick to place six patents on the plant, covering ‘the use of the plant, its active molecules, derivatives and mode of action’ . Tens of millions of dollars in licensing fees and royalty had changed hands between Pfizer and Phytoopharm, before The South African San Council became involved. The South African San Council sued Pfizer, Phytopharm and their South African accomplices for infringing on the ancient knowledge of the indigenous peoples. The suit was settled in a judgement that granted the San peoples 8 percent of the ‘milestone payments made by its licensee, UK-based Phytopharm, during the drug’s clinical development over the next few years. At the completion of drug development, it was agreed that Pfizer will have to pay an additional 6 percent royalties on the marketing of the drugs to the San people.’  In a National Geographic article, the chairman of the San Council, Petrus Vaalboi is quoted as saying that ‘we are thankful that the traditional knowledge of our forefathers is acknowledged by this important agreement, and that we are making it known to the world. As San leaders we are determined to protect all aspects of our heritage’.

In the case of Nigeria , the knowledge of the Indigenous peoples is being forcefully and consistently taken away from the country by those who should protect it. During a personal conversation, a knowledgeable Nigerian pharmacologist who has worked in government establishments cited the instance where some Western government institutes such as the United States National Institute of Health (NIH) enter into “agreements” with Nigerian Institute for Pharmaceutical Research and Development (NIPRD) for the “exchange” of plant, human, and technological resources. These questionable “agreements” are often “negotiated” from a position of weakness and ignorance – and perhaps, apathy - by NIPRD officials. The NIH in one instance, built a laboratory for the NIPRD in Nigeria and trained some staff, in exchange for plant resources. Unfortunately, what exists presently is a situation where Nigerian government lacks information as to the progress made with the “donated” or “exchanged” plant resources, or its patent status. How much research work has been conducted on these medicinal plants? Who owns the patent on them? How much is being made from the sale of the medication generated from these plants?   What emerges is a grand design by both western governments and private enterprises to rid Nigeria of her rich indigenous pharmacology, while appropriating the proceeds.

As a matter of urgency, the Nigerian Government must strengthen the existing intellectual property laws of the country. Specifically, it should be made a criminal offence for any researcher local or foreign, to claim patent on indigenous species of medicinal plants in Nigeria . The government must  hire intellectual property lawyers to proceed to the WTO to demand for the withdrawal of the patent granted for several Nigerian medicinal plants. In the least, like the Sans people, Nigeria should demand for an equitable profit sharing formula from the pharmaceutical companies that are solely benefiting from the medicinal plants.  In its May 17, 2011 report, the Punch Newspapers notes rather vaguely that “ Nigeria and the United States are to Collaborate on the protection of intellectual property rights.” One imagines what such “collaboration” entails.  Nigerians demand that the terms of such collaboration be made public. As a people, Nigerians are enlightened enough to constructively critique certain “collaborations” that end up as conduits for the illegal transfer of the nation’s wealth to the West.

  See http://www.edmonds-institute.org/outofafrica.pdf (May 15, 2011)
  See http://www.edmonds-institute.org/mystery.html  (May 15, 2011)
  See http://www.edmonds-institute.org/mystery.html  (May 15, 2011)
 Konadu, K. (2007) Indigenous Medicine and Knowledge in African Society New York : Routledge p. 60 

UNEP (2003) “Traditional Lifestyles and Biodiversity Use” Prepared for the Secretariat of the Conventions on Biological Diversity June 2003 
  Ibid.