September 1996

The U.S. National Institutes of Health (NIH), owner of the infamous patent on the cell line of a Hagahai indigenous person from Papua New Guinea, is sending mixed signals about what it intends to do with the patent. NIH has been the subject of extreme criticism from governments, indigenous people, and NGOs for patenting the cells (see RAFI Communique March/April, 1996). Confusing and incomplete reports have emerged about the patent's status, including stories indicating it will be abandoned. But despite dozens of requests, NIH has produced no written confirmation that the patent has been abandoned as of 1 October 1996.

The uncertainty began in August when in Port Moresby, just prior to an important national conference on biomedical research, a report surfaced that NIH had given the patent to the Papua New Guinea government. ICRAF, a Port Moresby NGO, immediately forwarded the newspaper account to the U.S. for confirmation. RAFI contacted several NIH offices, including the International Relations and Technology Transfer Offices; but officials were curiously out to lunch, away at meetings, or on the phone for several weeks straight. No messages were returned.

Dr. Amar Bhat of NIH's International Relations Office finally offered comment while attending a meeting on the Human Genome Diversity Project in Washington on September 16. Bhat said that NIH first intended to place the patent in a trust for the Hagahai; but later decided it would abandon it altogether. Bhat said this would be done by the end of September.

On September 22, the Associated Press (AP) wire service circulated a story reporting that NIH had "quietly offered to abandon its rights" in the patent, and quoted a "well-placed source at NIH headquarters" as commenting "We were blindly patenting things that were patentable... The PNG cell line certainly fell within that category." The AP article repeated Bhat's story that the idea of a trust was initially entertained; but since NIH thought the patent is unlikely to make money, the costs of transfering the patent rights and creating the trust could not be justified. Neither Bhat or AP elaborated on who the proposed trustees are/were.

At the end of September, the AP story and the original Port Moresby report were widely circulated on the internet, leaving thousands across the world wondering what exactly NIH was up to. Critics of the patent pointed out the ironies of the Hagahai, through their trustees, having to pay thousands of dollars in order to get rights to their own cells back from NIH. Still, NIH maintained a vaccuum on official information and refused to confirm or deny the reports.

RAFI suspects that NIH intends to abandon the patent and that their refusal to comment or provide written confirmation is because they are desperately trying to concoct a coherent rationale for their plans. NIH is in the difficult position of trying to abandon the patent without prejudicing its continued open policy on patenting human tissues or appearing to cave in to pressure from indigenous people and NGOs. NIH may be sending out a trial balloon by citing an obscure and largely irrelevant modification to the laws governing technology transfer at NIH (made this year by the U.S. Congress) as the official pretext for the patent's potential abandonment.

Though the end of the Hagahai patent boondoggle is possibly at hand, indigenous people and NGOs are quick to point out that if NIH abandons the Hagahai patent, the controversy surrounding patenting of human tissues will be far from over. The U.S. Patent and Trademark Office, as well as the patent offices of most other Northen countries, are continuing to allow the patenting of human tissues, and NIH abandonment of a single patent will have no effect on the thousands of other patents and patent applications on human tissues.

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