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The Ayahuasca Patent Case

In March 1999, CIEL filed a a legal challenge to a US patent claimed on the "ayahuasca" vine, Banisteriopsis caapi, which is native to the Amazonian rainforest.  CIEL filed this request for reexamination of the patent with the US Patent and Trademark Office on behalf of the Coordinating Body of Indigenous Organizations of the Amazon Basin (COICA) and the Coalition for Amazonian Peoples and Their Environment (Amazon Coalition).  COICA objected to the patent because it purported to appropriate for a U.S. citizen a plant that is sacred to many indigenous peoples of the Amazon, used by them in religious and healing ceremonies.  

Ayuhuasca plant

Photo by Timothy Plowman

In November, 1999, the PTO issued a decision rejecting the patent.   As detailed in an analysis by CIEL attorney Glenn Wiser, the PTO accepted the petitioners' arguments that the claimed plant variety was not distinctive or novel, but did not acknowledge the argument that the plant's religious value warranted an exception from patenting.

The PTO made its decision "final" in an office action dated April 14, 2000. At that point, CIEL, COICA and Amazon Alliance were precluded under the law from participating any further in the reexamination process. The PTO vigorously enforced that restriction. The law simultaneously entitled the patent holder, Loren Miller, either to appeal the decision to the Board of Patent Appeals and Interferences or try to amend the patent into an acceptable form. Despite that restriction, the PTO examiners permitted Miller repeatedly to submit new "evidence" and arguments intended to convince them to change their minds. Without the benefit of considering opposing views, the PTO reversed its rejection in January, 2001, concluded the reexamination process, and issued a certificate in April allowing the patent to stand for the remaining two years of its term. An analysis of the PTO's reversal explains why it was incorrect as a matter of law and questions the irregular manner in which to the PTO disregarded its own procedures. (A transcription of the PTO's Statement of Reasons for Patentability and/or Confirmation" may be viewed by clicking here).

Under the law, a patent applied for before 1995 expires 17 years from the date of its original issuance. The "ayahuasca patent" expired on June 17, 2003. It cannot be renewed.


This page last updated on 8 December 2003

 

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