Behind the Hedge By David Skeel
The Enemy Among Us By Geoffrey Gagnon
A Blueprint for the Future By Daniel Brook
Viagra Natural By Brendan I. Koerner
Artfully Made-up By Erika Kawalek
Maca, a plant grown in the Andean highlands, is believed to boost male potency. The Quechua Indians cultivate it; a New Jersey company owns the patent on it. The Americans call the work that led to the patent bioprospecting. Others say it's stealing.
THE FLAVOR OF MACA, A RADISH-LIKE TUBER OF THE ANDEAN HIGHLANDS, is often described as similar to that of butterscotch. My first taste of maca came at a cafe in Lima, Peru, where the barista microwaved me a cup of gritty porridge that tasted like sweetened sandpaper. I gave the plant a second chance in Cuzco, the capital of the Andes. There, I bought a cup of maca-infused dulce de leche from a street vendor stationed near the ruins of an Incan solar temple. Camped beneath a giant mural depicting a human sacrifice, I took a tentative bite of the off-white concoction. I've rarely encountered a taste so odiouslike a combination of spoiled buttermilk and chalkboard dust.
Almost no one, however, eats maca because they enjoy the taste. Also known as Peruvian ginseng, the plant is believed to deliver a jolt of energy to the male loins, increasing sperm count and enhancing the libido. The earliest Andean civilizations discovered that altitude diminished the sex drive of livestock, and that a nibble of maca could revive an alpaca's urge to procreate. What worked for beasts worked for humans, too, and dried maca root was a favorite pre-liaison supplement for Incan noblemenand, later, for the Spanish conquistadors, who demanded tons of maca as part of their tribute.
Viagra natural is the plant's contemporary nickname among Peru's young and randy, who mix crushed maca root into their morning jugos, or snack on enriched cereal bars such as Kiwi-Maca or Energía Inka. "It makes you feel like you have power all over your body," said José Manuel, a 24-year-old university student, who claimed to start each day with a maca con leche shake. "Sexual power!" He illustrated this point by miming convulsions, topping off the show with a knowing pat of his genitals.
I FLEW MORE THAN 3,600 MILES to sample this reputed aphrodisiac and endured several white-knuckle minivan rides through the Andes and a meal of roast guinea pig along the way. (I say reputed because, in my nonscientific studies, the aphrodisiac effect amounted to nothing.) I could much more easily have strolled to my local retail strip in New York City. Displayed next to herbal libido enhancers such as yohimbe and Horny Goat Weed, maca pills and powders have been available in American health food stores for over a decade. The main ingredient in several of these products is MacaPure, a trademarked "sex-enhancing standardized extract" manufactured by Pure World Botanicals of South Hackensack, N.J. "Animals fed MacaPure extract greatly increased their sexual activity," the company's marketing literature states, "engaging in sex far more frequently than usual."
In 2001, Pure World was awarded United States patent number 6,267,995 for its method of using an alcoholic solvent to isolate maca's active compounds. Rather than greet the patent as likely to increase maca exports, the Peruvians were outraged. The Quechua Indians, the longtime guardians of maca's secrets, united with government officials of Peru to condemn Pure World's actions as biopiracy, a type of thievery in which plants or organisms from one country are patented in another, without permission or compensation.
It was not the first time the Peruvians felt that one of their crops had been purloined with the aid of the American patent system. In 1994, for example, two agronomists from Colorado State University patented a variety of quinoa, a high-protein Andean grain that the Quechuas often eat in lieu of meat. Six years later, a California food processing company was awarded a patent for a bean that pops when toasted, creating a tasty snack. The Peruvians claimed that the company had simply patented the nuña popping bean, a longtime favorite treat of Quechua children.
Many Peruvians want companies like Pure World to give them a cut of the profits, in recognition of the intellectual capital that their farmers have poured into developing maca and other crops. "We have preserved this knowledge and these genetic resources for thousands of years," said Sylvia Bazan, an official with Peru's National Institute for the Defense of Competition and Intellectual Property (INDECOPI). "We can share it with mankindwe want to share it with mankind. But we want some benefits."
The most frequently cited example of an ideal benefit-sharing arrangement is a 1991 agreement between the pharmaceutical company Merck and INBio, Costa Rica's National Biodiversity Institute. INBio agreed to supply Merck with samples of plants and organisms from the Costa Rican rainforest; in exchange, Merck vowed to pay INBio up to 10 percent of all future royalties on medicines derived from those samples. The money would be earmarked for the preservation of Costa Rica's environment.
The Merck-INBio pact was much admired by the delegates at the 1992 Earth Summit in Rio de Janeiro, a United Nations confab where a landmark Convention on Biological Diversity was adopted. The CBD codified the idea that nations should be able to determine who can conduct research on their biological resources. The CBD also states that contracting parties, usually companies from developed nations, should share "the benefits arising from the commercial and other utilization of genetic resources with the Contracting Party providing such resources. Such sharing shall be upon mutually agreed terms."
Despite the convention, however, there is no consensus about whether drug companies are legally obligated to treat developing nations as partners rather than mere links in the supply chain. The CBD's populist sentiment is contradicted by a World Trade Organization agreement on intellectual property, and a thicket of conflicting national laws muddy the waters even further.
The Peruvian government is short on funds and manpower, but it intends to overturn the maca patent on the grounds that Pure World's method apes an extraction technique that the Quechuas have used for centuries. But the Quechuas have little faith in the bureaucrats of Lima, and even less in multinational trade pacts. They prefer to protect their knowledge and their crops with their own measures.
THE CINCHONA TREE GRACES PERU'S NATIONAL FLAG, where it serves as a constant reminder of why the country's biodiversity is so coveted. The tree's bark was the original source of the antimalarial drug quinine, which the indigenous people of the northern Andes called quinaquina"bark of barks." Jesuit missionaries in the 17th century brought this white powder back to Europe, where it earned a reputation as a miracle cure after being used to treat King Charles II of England for malaria. But Peru never grew wealthy from its landmark contribution to medical science. Using seeds smuggled out of Peru, the Dutch government planted Cinchona trees in Java in the 19th century, and Indonesia became the world's primary quinine supplier.
No drug of quinine's importance has since emerged from Peru's jungles or mountains, but the country is a prime destination for bioprospectorsresearchers dispatched by American and European pharmaceutical companies to find medicinal plants or organisms. Like quinine, many of their discoveries are remedies that have been used in indigenous communities since time immemorial. One celebrated example is ayahuasca, a hallucinogenic vine. A variety of the plant familiar to residents of the Amazonian rainforest for generations was patented in the U.S. in 1986. The U.S. Patent and Trademark Office annulled the patent in 1999 in response to a protest from a coalition of Amazonian NGOs, ruling that publications about the vine were "known and available" at the time the patent application was filed. But the patent was reinstated when the PTO concluded that the size and shape of the vine's leaves were, in fact, different from those previously described; the patent stood until its expiration in 2003.
Pure World's maca patent is more nuanced than the one that covered ayahuasca. It is not for the plant itself, but rather for a method of extracting maca's essence; the patent states that the resulting "composition can be used for treating cancer and sexual dysfunction." The patent does not preclude Peruvian farmers from growing any variety of maca they wish, nor does it prevent them from selling their output.
"What [Pure World] has done is they've taken common knowledge and improved it," said Dennis Karjala, a professor at Arizona State University College of Law. To deny Pure World the patent, he added, would be akin to denying a car company a patent on an improved wheel designit would slow down the pace of innovation, and the world would be worse off. The Peruvians see nothing innovative in Pure World's patent, however. They argue that the patented extraction method is just a fancy version of a Quechua trick: soaking the dried root in a moonshine called aguardiente. The resulting shake, which is typically sweetened with a blend of fruit and milk, is a popular beverage on the streets of Junín, a town in the heart of Peru's maca-growing region. The drink's alcoholic component releases the maca root's essences, much in the same manner as Pure World's solvent technique. The only real difference, the Peruvians claim, is that Pure World's scientists use expensive laboratory equipment instead of cheap blenders.
The Peruvian government could overturn the patent by proving that Pure World's techniques does not substantively improve on the Quechua method. But the science behind the Junín beverage has probably not been formally recorded because the recipe was passed along via word of mouth. As Title 35 of the U.S. Code has been interpreted by the U.S. Supreme Court, oral testimony alone is not sufficient to prove the existence of what lawyers call prior artpre-existing knowledge that may invalidate a patent. In the ayahuasca case, for example, a Peruvian shaman testified that the patented vine had long been used in religious rites, but the patent examiners refused to consider his statement.
Still, Peru's INDECOPI, which is responsible for protecting the nation's intellectual property, believes that written prior art may exist somewhere, perhaps in the archives of a rural university. It has enlisted the pro bono aid of Jorge Goldstein, an Argentinean-born partner in the Washington, D.C., law firm of Sterne Kessler Goldstein & Fox, to find such evidence. He has been sifting through Spanish-language documents that might describe the alcohol-and-maca technique; as of this writing, Goldstein said that "the timing of a challenge is being evaluated."
The more substantive of Peru's objections to the maca patent is that Pure World did not obtain official permission before launching its research, nor did it agree to share revenues with either the Quechuas or the government. Neglecting to do both violates the Convention on Biological Diversity. (In July, Pure World was sold to the French nutriceuticals company Naturex for $36.8 million. A Naturex spokeswoman did not return repeated phone calls seeking comment regarding the MacaPure patent. However, in a 2004 interview with The Bergen County Record, Pure World's then-president, Qun Yi Zheng, stated, "We really enhanced the equity of maca itself. . . . We shouldn't be blamed, we should be thanked.")
Before the CBD, "everything in nature was considered the common heritage of mankind," said Cynthia M. Ho, a professor at Loyola University Chicago School of Law. "It was a big change the CBD put forth. What it says is that not only does a nation have sovereignty rights, but it also suggests that [bioprospectors] get informed consent and do benefit sharing." In other words, American or European researchers could no longer tramp into the central Andes in search of medicinal plants without getting clearance from the Peruvian government. And that clearance needn't be given, the CBD implies, unless the company in question agreed to share a cut of the royalties with Peru.
Peru believes that it deserves an equitable portion of MacaPure's sales, in recognition of the intellectual contributions of the Quechua. Their ancestors were the first to discover the plant's libido-raising properties, and they spent centuries perfecting the complicated methods necessary to raise and prepare the crop. For example, a maca plant must be relocated to a manure-rich field after the first frost, or no seed-bearing shoots will emerge. After the July harvest, the roots are left to dry for up to three months and must be protected against any precipitation; if a farmer fails to cover his maca before it rains, the entire crop could be ruined.
CULTIVATED MACA MIGHT HAVE DISAPPEARED ALTOGETHER were it not for the efforts of a handful of Quechua, whose ancestors first started growing and refining the plant around 1600 B.C. Many farmers abandoned the crop during the 20th century, when they learned new techniques that increased the yields of other vegetables. "Maca takes a lot out of the earth," said Hugo Granados, a Spanish-speaking Quechua, as we drove in his red Toyota pickup through the town of Pisac. "The farmers don't like to grow it, because they can't use their fields after for several years." Some fields must be left fallow for as long as a decade before they can be reused.
So many farmers abandoned the plant that a 1989 report by the National Research Council termed maca one of "the lost crops of the Incas," and noted that its cultivation was "in danger of extinction." Only a tiny number of poor Quechuas located near Junín continued to raise maca, primarily for subsistence purposes. They would roast the roots and eat them whole, or mix them into porridges of the sort that I sampled in Lima. These recipes are now celebrated each July at the Maca Harvest Festival in Huancayo, a modern city 186 miles due west of Lima, where visitors canat their own risktry everything from mashed maca to maca ice cream.
Peru's maca-growing belt now stretches from Huancayo to Cuzco, 240 miles to the southeastan expansion that has come about because of the developed world's demand. Yet maca remains a tiny industry: In 2004, exports barely topped $1.5 million, whereas retail sales in the U.S. alone are estimated to be worth $20 million annually. Farmers complain that a glut of new maca producers has depressed prices, so that they've derived little real benefit from the plant's popularity among America's aspiring Don Juans.
Manuel Ruiz, director of the program on international affairs and biodiversity for the Peruvian Society for Environmental Law, believes that Pure World should split the profits from maca with his country. "We have the resource, and we have the related knowledge, and we have conserved the resource over the centuries," he said. "[Americans] have the technology to add value and commercialize the resource through their distribution channels. I think half-and-half is a very simple way to envision a fair sharing of benefits."
Ruiz points out that there is precedent for a payout more generous than the Merck-INBio agreement: a 1996 five-party agreement among the Aguaruna people of northern Peru, the American drug company G.D. Searle, two Peruvian universities, and Washington University in St. Louis. The agreement allowed researchers from Searle and the universities to prospect for plants in the Aguarunas' native territory, in return for annual payments to the Aguaruna people. If and when a commercial product was ever manufactured as a result of the research, the agreement guaranteed that no less than 75 percent of the royalty income would be returned to Peru.
This sort of munificent promise plays well in the public relations arena. But it would be a mistake to think that the CBD compels an American company like Searle to be so bighearted. For starters, the U.S. is not one of the 188 countries that have so far ratified the CBD. President Bill Clinton signed the treaty in 1993, but a Senate coalition led by Jesse Helms, then a Republican senator from North Carolina, blocked ratification. Heavily lobbied by the biotechnology industry, the opponents argued that the CBD would stifle innovation. Furthermore, like many United Nations treaties, the CBD is long on cordial rhetoric but short on enforcement mechanisms. "It's along the lines of a U.N. human rights agreement," said Ho. "You want people to aspire to these kinds of things." But violators face no specific sanctions.
A far more efficacious treaty is the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), which was finalized by the World Trade Organization in 1994 and which mentions nothing about sovereignty over natural resources or sharing benefits equally between companies and indigenous peoples. It allows patents on biological and genetic resources as long as the new product is a significant, nonobvious improvement over what existed, a requirement in line with the regulations of the American patent system.
Unlike the CBD, TRIPS is enforceable; countries that run afoul of the agreement risk severe trade sanctions from the WTO. Developing nations have tried repeatedly to have the CBD's language added to TRIPS but they have faced opposition from the U.S.
With TRIPS unlikely to be amended soon, Peru and its neighbors have taken it upon themselves to add teeth to the CBD's tenets. In 1996, the five-nation Andean Community issued Decision 391, a pact designed to "recognize the historic contribution made by the native, Afro-American, and local communities to the biological diversity" of the region. Decision 391 reiterates the sections of the CBD dealing with sovereignty and benefit-sharing and adds articles empowering Peru and the other membersBolivia, Ecuador, Venezuela, and Colombiato punish transgressors. According to Ruiz, these punishments could include stamping "persona non grata" in the passports of noncompliant researchers. To date, however, no alleged biopirate has been punished in Peru.
One part of the solution, Peru hopes, is its domestic Law 27811. Rather than outline penalties for biopiracy, the 2002 law mandates the creation of a national database of plants and their medicinal applications. This was partly done in order to preserve knowledge that might otherwise vanish as more and more Quechuas move to Peru's cities in search of work, and as swaths of jungle are clearcut for settlement.
Law 27811 was also put on the books to stave off foreign patents. But researchers of the institute known as INDECOPI rely almost solely on the few published documents that there are, because, due to the country's legacy of racial animosity, the Quechuas and other indigenous peoples are reluctant to share their secrets with the government. "We haven't gone to the communities to collect the knowledge therewe do not know if it would be possible," said Bazan. "We are the government, and they are indigenous peoples. And they have a reaction against people from the government." As a result, the database will likely not contain knowledge that would be specific enough to challenge any of the 200-plus foreign patents that INDECOPI has identified as at least partially based on Peruvian genetic resources or traditional knowledge.
ANYONE WHO WISHES TO AVOID A FIERY DEATH is advised to use a four-wheel-drive vehicle when traveling to the Parque de la Papa, or Potato Park, located 30 miles northeast of Cuzco. The dirt road that leads to the park's main building twists along a steep mountainside, hundreds of feet above the valley below.
The Potato Park is best described as an agricultural collective, bringing together six Quechua settlements. It was founded in 2002 with the guidance of a Cuzco-based organization headed by Alejandro Argumedo, a Quechua activist. Argumedo had been troubled by the patenting of Peruvian crops, a concept that is alien to the Quechua; they freely exchange knowledge between villages, rather than guarding their secrets from fellow Quechuas. The idea behind the park was to create a preserve where indigenous Quechua crops could be protected from commercialization by outsiders.
The maca case upsets the park's inhabitants; though maca is not cultivated within the park's boundaries, the elders of the communities refer to patents like Pure World's as a grave concern. On the walls of the main building, alongside photographs of farmers conducting religious rites in honor of the deity Pachamama, is a poster that depicts an eye-patched cartoon pirate, dreaming of an American dollar sign. He stands above a slogan inveighing against biopiratería.
"There are pirates who come in and rob us, not only of resources, but also knowledge," said Justino Yukra, one of the park's experts on agricultural techniques, speaking in the complex Quechua language, which I could only understand with the aid of two interpretersone Quechua-to-Spanish, the other Spanish-to-English. "We've organized to protect ourselves against people who are pirates, who come from other countries, who took yacon, ayahuasca, and maca. They pirated these resources, and they became the owners." (Yacon, a relative of the sunflower, intrigues food researchers because its sugars aren't metabolized by the human body. Several yacon derivatives have been patented in Japan, and international critics have alleged that some of the Japanese research was conducted on seeds smuggled out of Peru.)
The park has been planted with tubers whose germplasm, or core genetic materials, was formerly stored in Lima at an institution known as the International Potato Center, or CIP. The CIP was holding this material "in trust" for the human race, with the stipulation that it could never be patented. But anti-biopiracy activists like Argumedo worry that the CIP's information is not detailed enough to preempt foreign patents. And they don't totally trust that the CIP's gene banks are secure: The smuggled seeds in the yacon case, for example, were allegedly stolen from the CIP.
The Quechua also harbor some ill will toward the CIP, stemming from the maca dispute. When a coalition of maca producers met in Lima in 2002, they pleaded with the CIP, whose gene banks include 31 varieties of maca, to challenge the American patent. That challenge never materialized, and the Quechuas viewed that disappointment as yet more evidence that the mandarins of Lima care little for them.
To create the Potato Park, Argumedo's group struck a deal with the CIP: Close to 450 varieties of tubers indigenous to the central Andes were removed from the CIP's gene bank, and the seeds were sent to the park. The Quechua thus became the sole guardians of these genetic resources, able to decide who can have access to them. If a researcher wants to examine one of these tubers, he must obtain permission directly from the park's council.
Samples of these potatoes, many of which hadn't been cultivated in the region for years, now line the walls of the park's main building, and the Quechuas are eager to educate visitors as to each potato's unique properties. There is the "daughter-in-law" potato, the bitter flesh of which is used to test whether a soon-to-be-bride is prone to crying; the "thief of hearts" potato, a purplish tuber renowned for its outward beauty; and a potato so sweet that it's only served at weddings and birthdays.
There is also a plot of land within the park where the Quechuas raise medicinal plants to produce traditional remedies, which are kept under lock and key at the park's pharmacy. The Quechuas have homemade concoctions that promise to cure everything from facial blotches to stomachaches to baldness. There is even a medicine called macharisja that is prescribed to people suffering from too much feara Quechua version of Xanax.
As we drank coca tea one afternoon, I asked Justino Yukra whether the park's residents foresee themselves selling their homemade drugs outside the park. He seemed puzzled by the question. They will share them with other Quechua communities that can't afford Western medicines, he responded. But he did not seem to have considered the concept of sharing the formulas with a drug company, either Peruvian or American.
The Quechuas realize, however, that their genetic resources are coveted by outsiders. To protect themselves from biopirates, they purchased video cameras and put them in the hands of a trusted group of young women. The so-called Video Girl Collective is responsible for taping every aspect of the park's agricultural production in order to create a visual record of the Quechuas' knowledge. If a foreign company were to claim that it had invented a particular variety of tuber or a certain medicine akin to macharisja, the park's leadership could offer the video footage as prior art.
It is a similar strategy to that proposed by Law 27811, except much more detailed. Since they control the cameras and the computers upon which the video is digitally stored, the Quechuas have no qualms about logging every little detail of their knowledge. There is no anxiety that a non-Quechuan government official in Lima will release the information, or that it will end up in a public database monitored by pharmaceutical researchers.
But if a patent dispute did arise, would an American patent examiner consider a Quechua video prior art? The park's leadership doesn't seem to have given this much thought. Nor can they do much to prevent a bioprospector from purchasing one of the park's tubers at a local market, then taking it back to the U.S. or Europe for analysis. But for the 6,500 Quechuas who live within the confines of the park, defending themselves is preferable to putting their faith in the feeble laws of outsiders.