The liver-protecting, heart-strengthening, immune-boosting and circulation-pumping qualities of exotic flora and fauna are these days common claims being made by cosmetics giants across the world. The latest plug is in favour of the Kakadu plum, native to Australia. The Texan cosmetics company, Mary Kay Inc, claims that the combination of extracts from the Kakadu plum and the acai berry produce “synergistic effects” that benefit the skin, due primarily to the high concentration of vitamin C in the plum extract. Mary Kay applied almost four years ago for a standard patent for “Compositions comprising Kakadu plum extract or acai berry extract” but following publicised concerns and opposition over the application, it has only recently proceeded to examination.
Such concerns and opposition have been voiced largely by those representing the Mirarr Aboriginal people who over many years have used the Kakadu plum not only as a food source, but for its medicinal properties. The Mirarr people and those that represent them are concerned that if the patent is granted, it will limit the use they can put to the Kakadu plum. Indeed, such concerns were raised in the Senate in March 2009 where Senator Kim Carr, the then Minister for Innovation, Industry, Science and Research, was asked whether he was aware that if the patent was granted “then the current development plans for this plant for commercialisation by Indigenous communities will be stopped?” Senator Carr in his answer noted that the fact that a patent may refer to, claim compositions of, or be a method involving the Kakadu plum does not necessarily hinder indigenous use of the fruit, given the great breadth and variance in patents. However, even though Senator Carr is correct to point out that the monopoly created by a patent is constrained by the patent’s specific claims, the Mary Kay patent can be distinguished from other patents involving the plum as it makes use of the actual extract of the plum itself used in a cosmetic product, whereas other patents involving the fruit are generally restricted to methods using the plum.
Opponents of the patent argue that the indigenous history associated with the Kakadu plum means that the patent may not be novel or involve an inventive step, arguing that the documentation of the history of traditional uses associated with the plum may provide evidence of prior art.. However, Mary Kay maintains that it has satisfied the requirements for a valid patent as it is the use of the fruit in a cosmetic formulation that is new and what is sought to be protected.
Some also argue that the grant of patents like that filed by Mary Kay will encourage “biopiracy”, a term used to describe the situation where indigenous tradition with respect to nature is exploited for commercial gain with no compensation to the indigenous people. Indeed, this issue was central to the COP10 conference in Japan held in October this year with the adoption of the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity. The Protocol to the Convention on Biodiversity requires companies that use flora or fauna in their products to acknowledge their origin and share the profits with indigenous peoples and local communities whose knowledge made the development of these products possible.
Interestingly, the United States is not a signatory to the Convention, so American companies such as Mary Kay are not subject to the obligations created by the Protocol. It means the Mirarr people are unlikely to be able to rely on the access and benefit scheme in this particular case.
The plum may clarify the skin but the question as to whether or not this should be patented remains unclear.
