Indigenous elders from six Andean communities that grow nuna beans met in late February for a traditional Quechua "tribunal" to deliberate on US patent no. 6,040,503 on the "bean-nut popping bean" awarded to US food processor Appropriate Engineering and Manufacturing (AEM).
After hearing testimony from expert witnesses, the tribunal's verdict was unflinching in its criticism of intellectual property monopolies that are preying on the knowledge, rights and resources of indigenous people.
"Ayahuasca, quinoa, and now nuna", said Carreno, an elder, referring to controversial US patent claims on traditional Andean medicinal plants and food crops. The ayahuasca and quinoa patents were subsequently overturned or abandoned due to the protests of indigenous peoples. "These plants represent the collective heritage and knowledge of our people, and we won't sit back and allow our popping-bean to be appropriated by a monopoly patent."
The tribunal issued a strongly worded public declaration promising to fight the popping bean patent, and demanded that the International Centre for Tropical Agriculture (CIAT), based in Colombia, uphold its obligation under a United Nations "trust agreement" to keep farmer-bred bean varieties in the public domain.
"CIAT challenged the patent on Mexico's yellow bean late last year, and we are asking them to defend our rights by taking similar action on the nuna patent", said Moises Quispe Quispe of the Nuna Farmers Federation of Cusco, Peru.
'Hops when it pops'
The "popping" trait is found only in the Andean nuna bean, which the "inventors" are claiming as their "intellectual property" in their patent. The nuna "hops when it pops" and "flies when it fries". The nuna bean (pronounced noonya) is nutritious and has a faintly "peanuty" taste. More importantly for farming communities in the arid Andes, cooking nuna requires little fuel-wood. The bean is roasted not boiled. A few minutes over the fire and the beans literally "pop" out of their shells ready to munch.
Alejandro Argumedo, a Quechua of the Peruvian Andes and coordinator of the Indigenous Peoples' Biodiversity Network (IPBN), was astonished to learn that the US company had patented the bean he has enjoyed since childhood.
"My mother used to roast them for us", Argumedo recalls, "They were a favourite. I can't believe that anyone could pretend they invented a popping bean!". While virtually unknown to the snack-addicted US market, the bean is an important part of Andean culture and a widely cultivated staple food in many regions.
AEM was granted the US patent on March 21, 2000. AEM "inventors" Mark Sterner and Jeffrey Ehlers also received what is known as a World Intellectual Property Organisation patent under the Patent Cooperation Treaty and have indicated that they will apply for patents in as many as 121 countries. The patent gives Ehlers and Sterner exclusive monopoly ownership over nuna hybrids with characteristics that allow it to grow outside the Andes.
The patent encompasses hybrids involving at least 33 Andean nuna varieties traditionally bred and developed for centuries in Peru, Bolivia, Ecuador and Colombia. "Continued development of the nuna bean in the Andes and elsewhere is threatened by this patent", observes Lucia Gallardo of Accion Ecologica in Quito, Ecuador.
Breeding concern
The patent is not only outraging Andean indigenous and farming communities. Carl Jones, a graduate student in plant breeding and genetics at Oregon State University who has worked extensively with Andean crops, believes that the patent is a serious threat to bean breeding. "The patented claim is really just an attempt to patent the 'nuna' characteristic which has been developed and preserved by the Andean peoples for centuries. The claim severely limits improvements in this crop that could be useful to the Andean peoples."
Jim Myers, a bean breeder at Oregon State University, has been working on adapting nunas for many years. "Technically, the patent prevents any research [in countries where the patent has been accepted] on the nunas without permission from the 'inventors'. If I make available any of the varieties I have been working on, and someone else develops a commercial use for them, there would have to be concern about possible patent infringement."
If the patent dampens research on nuna, it could have negative consequences for developing countries. Toasting nunas uses less fuel than boiling beans, a feature important to economic and environmental conditions in areas of the world where fuel is scarce. Bean breeders at CIAT, one of the 16 international research centres under the auspices of the Consultative Group on International Agricultural Research (CGIAR), believe that the nuna bean could contribute to economic development in the region.
Last year, US Drug Administration officials forwarded to Rural Advancement Foundation International (RAFI) correspondence from a senior CIAT scientist who expressed his concerns about the patent. "We hoped that popping beans grown in the Andes could be a good substitute for illicit crops, and indeed that was part of the rationale on which USDA supported [work on the bean]. With large acreages planted in the USA with that variety, how will Peruvian farmers produce nunas for export?", the scientist said. He was also worried that the patent could restrict bean breeding in developing countries. "The business of bean breeding ... would be at risk in my view if other bean breeders cannot produce other popping beans using original Peruvian or Bolivian [varieties] and US varieties already adapted to northern latitudes. My concern is about the limitations to bean breeding and the benefits to society at large for, for instance, farmers and rural inhabitants of Africa."
Obvious
Some bean breeders have argued that the patent should be rejected because the method used by the breeders was "obvious" — which should have excluded it from patentability. Improving a variety involves cross-breeding to bring together different traits and then selecting the progeny having the combination of desirable traits.
In the case of the nuna bean, the crosses were obvious to any one skilled in the art of bean breeding. While the inventors may have done painstaking breeding work, the results are not necessarily "inventive". Bean breeders had, in fact, already written about the nuna bean suggesting how to adapt the breed. "The patent does exactly what we recommended in some of our publications", wrote Dr Dan Debouck, head of the Genetic Resources Unit at CIAT. While experts acknowledge that Ehlers and Sterner did serious breeding work on this bean, many people question whether or not the bean meets the criteria of a patentable invention.
All of the nuna bean varieties listed in the AEM patent were freely provided by Andean farming communities, who allowed their bean varieties to be put into the public realm in order to ensure the continued maintenance of the world's seed biodiversity.
In 1994, mounting concern over public collections being privatised led the Food and Agriculture Organisation of the United Nations to declare the contents of CGIAR gene banks to be "in trust", meaning that they cannot be restricted by monopoly patents. Of the 33 nuna bean varieties listed in the patent, nine are also held in CIAT's international bean collection. All are designated "in trust" and all are farmers' varieties collected in Peru.
Although CGIAR has not taken a public position on the popping bean patent, CGIAR officials expressed concern at the Global Forum on Agricultural Research in Dresden in May 2000.
Repeat offender
One of the nuna's two "inventors" is not new to RAFI. In 1996, Ehlers won a US plant variety protection certificate on "Kunde Zulu", a cowpea variety he said he developed from breeding research he initially undertook as an employee of the International Institute for Tropical Agriculture (CIAT's sister institute in Nigeria). Although this claim conflicted with the institute's trust agreement with FAO, to RAFI's knowledge, IITA has not challenged the claim.
"This time Ehlers has a broad utility patent, and he has teamed up with Mark Sterner who owns a company that can really bring the bean to market", says Julie Delahanty of RAFI, who has been tracking the case. "Inland Empire Foods, owned by Sterner, is a food processor concentrating on dehydrated legumes for the natural foods market in the US. Clearly, they hope to turn the popping bean patent into a commercial product with a novel taste and an interesting history."
High nuna
Not if the IPBN, Accion Ecologica and the other Andean organisations who have vowed to challenge the patent have their way. Groups in Latin America are also anxious to challenge the World Intellectual Property Organisation for its part in this case. "WIPO is allowing this patent to go for adoption in other patent offices around the world. Yet WIPO says it wants to support the conservation and development of indigenous knowledge. Its time to put up or shut up", Accion Ecologica's Gallardo states.
Ehlers and Sterner believe they have not violated any international agreements. "Even if that were true, this patent would remain morally unacceptable", says Pat Mooney, executive director of RAFI. "The patent usurps the genius of Andean farmers for the commercial gain of a US company. Taking the genius of Andean farmers without compensation is bad enough, but the patent also makes it difficult or impossible for Andean farmers to develop a potentially lucrative export crop for the world market — a crop which belongs to the people of the Andes."
Indigenous groups in the region agree. "This is a fight the people of the Andes are going to win", Argumedo concludes.
[Abridged from Rural Advancement Foundation International web site <http://www.rafi.org/>.]