TWN Info Service on Biodiversity and Traditional Knowledge (May13/02)
Dear friends and colleagues,
An investigation conducted by Edward Hammond, consultant researcher of Third World Network, has revealed that a leading medical centre in The Netherlands is using a material transfer agreement (MTA) that claims proprietary rights over the Middle Eastern Respiratory Syndrome (MERS) virus, contrary to their public denial of placing restrictions on the virus.
The Erasmus Medical Centre issued a press statement on 24 May in response to public criticism by the World Health Organization's Director General, Dr. Margaret Chan, on 23 May of the Erasmus MTA.
A copy of the MTA was obtained by Third World Network some weeks ago under the public records law of the North Carolina, the United States, as part of our ongoing research into potential biopiracy of the MERS virus, triggered by a media report of criticism by Saudi Arabia's Deputy Minister of Health of Erasmus on this matter.
Due to the growing controversy and widespread public interest, Third World Network is now distributing the MTA, which is a public record. Below is a research note with more details and attached is the MTA.
With best wishes,
Third World Network
The Material Transfer Agreement underlying the controversy over patent rights and the Middle Eastern Respiratory Syndrome (MERS) virus
At the World Health Assembly in Geneva on 23 May 2013, Dr. Margaret Chan, the World Health Organization (WHO) Director-General, criticized The Netherland's Erasmus Medical Centre for the conditions it has placed on study of the Middle Eastern Respiratory Syndrome (MERS) virus through a material transfer agreement (MTA) asserting proprietary rights.
Intellectual property assertions on MERS virus can be a problem for public health, the Director-General said, "Making deals between scientists because they want to take IP (intellectual property), because they want to be the world's first to publish in scientific journals, these are issues we need to address... No IP will stand in the way of public health actions."
The controversy over the restrictive agreement has been simmering since December of last year, when the Saudi Deputy Minister of Health criticized the fact that the then-unidentified virus had been sent to Erasmus without the Saudi government's permission and that Erasmus had subsequently asserted rights over the virus.
On 24 May, Erasmus Medical Center released a statement responding to the criticism, and claiming that "Virologists of the Viroscience Department of Erasmus MC are sending MERS coronavirus free of charge and without restrictions to all research institutions that work to benefit public health."
This and other claims made by Erasmus in defense of its MTA, however, are not correct. This is demonstrated by the MTA itself. A copy of the MTA, obtained by Third World Network some weeks ago under the public records law of the US state of North Carolina, is released with this note.
Third World Network requested the MTA because it has a long standing interest in issues of access and benefit sharing for biodiversity, recently working with governments to help develop the Nagoya Protocol to the Convention on Biological Diversity, and for the WHO Pandemic Influenza Preparedness Framework, an agreement adopted last year that set terms for sharing of potentially pandemic influenza viruses between labs.
Numerous provisions of the Erasmus MTA are designed to support intellectual property claims, and Erasmus has a track record of taking an aggressive intellectual property stance. Erasmus attempted to take out patents over the SARS virus in the early 2000s, and has broad patents on use of human metapneumovirus, a respiratory virus that often infects children. Erasmus licenses rights to several companies to manufacture diagnostic tests for this virus, earning royalties when the assay is performed. It is also developing vaccines for that virus, and may wish to take a similar intellectual property strategy with MERS virus.
(As of 27 May, no international patent applications over MERS or its use by Erasmus have been published. This does not indicate Erasmus - or others - have not filed for patents, however, because there is a lag of six months or more from the time of filing of a patent application until its publication. It is thus too early to expect to see published applications on this recently-identified virus.)
Proprietary provisions in the Erasmus MTA for MERS virus include paragraph 2.2, which states that Erasmus retains ownership over the virus, and that if the recipient makes any inventions that include the virus or modifications to it, that these inventions will belong to Erasmus, and not to the institution where any invention was made.
Paragraph 2.4 prohibits recipients of the virus from sending it to anyone else without Erasmus' permission. Paragraph 1.3 prohibits recipients "to perform contract research, to screen compound libraries, to produce or manufacture products for general sale, or to conduct research activities that result in any sale, lease, license, or transfer of the MATERIAL or MODIFICATIONS to a for-profit organization."
The MTA defines the material of the agreement to be not only the actual virus it sends, but also all of the virus' constituent pieces and the proteins its genes encode in any form: "any progeny and unmodified derivative, clones, subunits and/or products expressed by the MATERIAL or fractions thereof."
The Erasmus MTA and the surrounding controversy clearly show negative impacts on public health of the extension of intellectual property to viruses and their use in treatments. Claims by Erasmus that it is distributing the virus "without restrictions" are also clearly false, as the MTA demonstrates.
Media discussion has understated the Erasmus MTA's chilling effect, a major reason why the agreement has become so controversial. Erasmus has a track record of making wide patent claims over newly-discovered respiratory viruses, and was the first to isolate the MERS virus. Because of this, and because Erasmus is using an MTA designed to protect its own potential patent claims, a discouraging effect on other institutions is created. Other labs might be able access the virus, from Erasmus or others, but don't want to, for fear that any work they do on the virus may later be alleged to be infringement of patent claims yet to be published.
Third World Network is now distributing the MTA, which is a public record, due to the widespread public interest. The situation with access to and intellectual property over the MERS virus, and other pathogens, will be addressed in future publications.