" Currently, U.S. patent law only recognizes domestic prior art..."

I did not know that. Suddenly, a lot of things that didn't make sense before now make sense. This is hypocritical beyond any excuse or explanation. We're trying to push our IP down other countries' throats while thumbing our noses at theirs.

I don't suppose anybody here knows the exact laws in question? Or any specific activities in support of changing them?

It is not true that the United States Patent Office does not recognize prior art outside of the United States. The U.S. recognizes publications anywhere in the world as prior art.

Processes that are practiced without a written record and products made without a written description are not per se prior art. However, my experience is that if something has been done for some time by a community of people somewhere on earth, someone has written about it. This written description is prior art.

Anonymous, if you're correct, then biopiracy IS illegal already, isn't it? In which case, something doesn't compute.

If you truly believe in laissez-faire capitalism, you should be disturbed at the patent system as it exists today. Adam Smith wrote of a system with many buyers, many sellers, perfect information, and immunity to market manipulation. But a patent gives one person or corporation a monopoly for twenty years, and increasingly it's a world-wide monopoly. The traditional justification for patents was that it's a trade-off: in exchange for the patent, the inventor discloses the invention to the public instead of making it a trade secret, and the reward of a patent promotes "progress in science and useful arts", to quote the language of the US Constitution.

But for the tradeoff to be effective, we have to make sure that the public is getting value for the granting of this temporary monopoly, and we always need to remember that it is a tradeoff, not a human right, to have patents. The US did not recognize foreign patents throughout most of the 19th century; if it had, the US would have been condemned to lagging the British by 17 years in all aspects of technology.

If a patent is granted for something that would be certainly discovered by the first research to look in a given direction, the public is getting nothing in exchange for the grant of monopoly. And that is certainly what happens when someone is granted a patent on a natural substance, protein, or gene. There is an argument for compensation for the expense of putting a proposed drug through clinical trials. But if the effect is just to verify that a drug does what a traditional healer says it does, we need to find some other means besides a patent monopoly to do the funding.

I'll quote from the paper by University of Minnesota law professor Jim Chen.

"The Patent act's definiton of prior art embraces patenting or publication in nay country, but includes publi use or sale soley "in this country" To be exact:

'A person shall be entitled to patent unless ... the invention was known or used by others in this coutnry, or patented or described in a printed publication in this or a foreign country, before the invention thereof by the applicatn for patent, or ... the invention was patented or described in a printed publication in this or a foreign country or in public use or on sale in this country, more than one year prior to the date of the application for patent in the United States.'

In other words, "whil almost all domestic prior knowledge, use or invention is considered against a later United States patent, almost all similar foreign activity is not."

Anonymous' definition of prior art in other countries would appear to be limited to prior patents or explicit publication.

Yes, Mr. Leonard, prior art originating in a country outside of the United States, for the most part, must be published. This law is changing as the U.S. harmonizes its IP laws with other countries.

Pryian, it is not so much that bio-piracy, is illegal as it is difficult to enforce. One example is an attempt by RiceTec, Inc. to patent Basmati rice. On September 2, 1997, the USPTO granted patent No. 5,663,484 for Basmati rice lines and grains to RiceTec, Inc. The Basmati patent had 20 claims (a patent application must have at least one).

Following a great furor over the issue publicly and in Parliament, the Government of India, through the APEDA, filed a request for re-examination by the USPTO. RiceTec voluntarily withdrew claims 4, 5, 16 and 17 from its patent in June 2000. The USPTO (suo motu) opened all the claims for re-examination.

On August 14, the USPTO cancelled claims 1-7, 10, and 14-20. Claims 12 and 13 were amended, while 8, 9 and 11 were confirmed. There is no new grant of the patent. The USPTO issued a certificate to RiceTec confirming that it had five live claims (8, 9, 11,12 and 13).

The only claims RiceTec has been able to enforce are for claims that it developed on its own and that were found to be novel and unobvious in light of Basmati rice. It is possible to attack the remaining claims in another Reexamination if additional prior art can be discovered.

A Berkeley colleague of mine is working on the production of Prostratin to help treat AIDS (http://www.berkeley.edu/news/media/releases/2004/09/29_samoa.shtml) and UC Berkeley negotiated a deal with Samoa over any future proceeds. All well and good and I think it is a great thing. I want to point out some details though for the sake of argument.

The twist in the story is that the traditional medicine practice used the bark to treat hepatitis-like disease. Studies have not shown it to be effective against hepatitis, but found it might be useful against AIDS. So should the Samoan government be able to say they OWN the gene for Prostratin because tribes on the island used the bark of the plant for a different disease where it had no real effect? What if the Sans people used the cactus as a skin balm to increase fertility. Should they still get a patent when the cactus is found to work as an appetite suppressant, a cancer therapy or an AIDS drug? I don't know, I am a scientist, not a lawyer. It seems like a different sort of piracy however for a modern government to say "we own all the genes to this plant because our indigenous peoples used it for X and thus we deserve royalties for any use". Is it right for countries to block the access of basic research to plant diversity in the hopes of negotiating deals with big pharma (or pharma hybrids like UC Berkeley) to enrich a governments coffers? How many AIDS deaths are an acceptable trade and how much of that money really makes it to the indigenous persons?