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24 Emory Int'l L. Rev. 433 (2010)
Treetop View of the Cathedral: Plant Variety Protection in South and Southeast Asian Least-Developed Countries

handle is hein.journals/emint24 and id is 435 raw text is: TREETOP VIEW OF THE CATHEDRAL: PLANT VARIETY PROTECTION IN SOUTH AND SOUTHEAST ASIAN LEAST- DEVELOPED COUNTRIES In sub-Saharan Africa, healers have used bitter leaf (Vernonia amygdalina) as a treatment for cancer.1 Breeders indigenous to sub-Saharan Africa have not registered for intellectual property protection for their use of bitter leaf.2 But in 2005, the U.S. Patent and Trademark Office issued Ernest B. Izevbigie, a scientist from Jackson State University, patents for therapeutic compounds he derived from bitter leaf.3 Izevbigie's background suggests no bad faith on his behalf in patenting the compounds derived from bitter leaf, yet critics often cite this fact pattern as an example of bioprospecting.4 Critics of Izevbigie's actions allege that the patents take away the right of the real innovators to expand into new markets. There is also a concern that if Jackson State so wanted, the patent owner could swoop into the African countries in which bitter leaf has so long been used and patent the medicine there, thereby taking away healers' rights to use the plant variety.5 This fact pattern can be manipulated to demonstrate another issue confronted in debates about bioprospecting. What if healers in sub-Saharan Africa had registered for and obtained intellectual property protection for bitter leaf, but Izevbigie discovered a much more effective cancer-fighting use for the plant variety? If Jackson State came into Nigeria to sell or distribute its medicine without permission from the rights-holder, then the rights-holder could successfully sue Jackson State for infringement. But should the patent holder be able to lawfully distribute its medicine without the original breeders' 1 JAY McGowN, EDMONDS INST., OUT OF AFRICA: MYSTERIES OF ACCESS AND BENEFIT SHARING 30 (2006), available at http://www.edmonds-institute.org/outofafrica.pdf 2 See id. McGown is a biopiracy hunter who compiled a list of publicly known instances which had occurred in Africa. See generally id. 3 U.S. Patent No. 6,713,098 (filed Jan. 24, 2002); U.S. Patent No. 6,849,604 (filed Jan. 13, 2004). Jackson State University was the assignee for these patents. '098 Patent; '604 Patent. 4 See, e.g., MCGowN, supra note 1, at 26. Some authors refer to bioprospecting more pejoratively as biopiracy, but the concepts are identical. See, e.g., id. at i. 5 See Id. at ii (noting that consent from national governments may not extend to the indigenous people who previously made use of the newly patented technology).

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