Genetically Modified Aluminium Tolerant Sorghum : A Case of Study of Alleged 'Biopiracy': A Briefing Paper for NGOs

In recent years there have been a number of claims of “biopiracy” where a company seeks patent coverage over inventions, which others feel would be an unjust “appropriation” of traditional or sacred knowledge. The SbMATE patent which was filed in 2007 (and granted in the US in 2009), relates to the identification of a gene that confers tolerance upon plants to Aluminium in the soil and to a genetically modified Sorghum containing that gene and thus displaying enhanced resistance to aluminium. The Sorghum from which the SbMATE gene was identified and cloned from is thought to have originally come from present day Tanzania. The Tanzanian government is reported to be very unhappy, as are a number of NGOs and activist groups. They have indicated that they will seek to have the patent revoked. This briefing document examines whether this might be possible. I use this examination to elucidate certain key aspects of patent law, which may be of interest to NGOs and policy makers who are interested in genetic modification (GM), patent and “biopiracy” issues. Much (?) of what is in this briefing paper will either be obvious or well known to members of the legal, especially Intellectual property community - this paper is not aimed at lawyers; I hope the readership will be wider, whilst at the same time being a rigorous examination of some key issues in the area. In this paper I argue that whilst other contested DNA patents have been successfully attacked in whole or in part, that this patent was not granted in error, according to the laws in force at the time of writing. In addition, some more general thoughts on biopiracy and IPR system are discussed; I hope this may also shed some light on why this particular patent has been subject to criticism