Protecting Traditional Knowledge: Ayahuasca Patent Dispute

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

In November 1999, the PTO issued a decision rejecting the patent. As detailed in an analysis by CIEL, 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 repeatedly permitted Miller to submit new “evidence” and arguments intended to convince them to change their decision. 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 it questions the irregular manner in which 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 in 1986. The “ayahuasca patent” expired on June 17, 2003. It cannot be renewed.