Is the patenting of new extracts of traditional Tongkat Ali another case of the “fencing up of the Commons”, wonders Jeyakumar Devaraj.
The 31 July 2019 edition of the Star newspaper carried a full page “Warning” taken out by Messrs Bustaman, the solicitors for Biotropics Msia Bhd, stating that “Biotropics is the sole licensee of the Patent over the bioactive components of extracts of the roots of the plant Eurycoma longifolia (otherwise known as “Tongkat Ali”)”.
The “warning” goes on to state that that any person or firm engaged in producing, manufacturing, importing or selling the patented product is infringing the exclusive rights granted by the patent, and is liable on conviction to a fine of RM15,000 and/or a jail sentence of two years.
The “warning” ends ominously stating “TAKE NOTICE that legal proceedings may be initiated against anyone infringing the aforementioned Patent including those assisting or facilitating such infringement….”
The Socialist Part of Malaysia (PSM) is shocked that existing patent laws in Malaysia can be so easily misused to create monopolies for well-connected companies that allow them to claim exclusive rights over the production and sale of a product like Tongkat Ali, which has been used for its medicinal properties for centuries.
Biotropics’ “warning” refers to Tongkat Ali extracts as its “invention” – but surely that is not true. The local population of Malaysia has recognised the medicinal properties of Tongkat Ali and have been using it for health enhancement for ages.
This is clearly another case of “fencing up the Commons”, using in this instance, Malaysian patent laws.
According to the “warning”, from now on, any person or company preparing and selling Tongkat Ali extracts will have to get the permission of Biotropics and pay a royalty.
PSM understands that Biotropics now has the technology to separate the extracts of Tongkat Ali and produce products with defined concentrations of these extracts.
We have no objection to Biometrics marketing its combination of purified extracts as a superior and safer version of Tongkat Ali and competing for market share with the traditional producers who probably use “cruder” methods of production.
Let the Malaysian public decide whether it is worth it to buy the more expensive, purified version from Biotropics or to keep to their traditional suppliers. That would be the free market at work – in a way beneficial to the public.
Why have we set up legislation that allows powerful commercial interests to create monopolies out of products already known to the local population and charge us exorbitant prices for something they did not discover or create? Something is obviously wrong with our application process for patents. Clearly, it can be abused.
PSM calls upon the government of Malaysia to look into this anomaly in patent legislation and put a stop to further “fencing up of the Commons”.
PSM also calls upon the traditional manufacturers of Tongkat Ali to come together to argue their case by meeting with relevant government agencies and if necessary, filing a legal challenge to Biotropics.
Consumer groups in the country should also get together to oppose this absurdity by supporting the traditional producers. The theft of our traditional knowledge must not go unchallenged.
Dr Jeyakumar Devaraj is chairperson of the Socialist Party of Malaysia.
The response from the firm was reported by Malaysiakini on 6 August is as follows:
Tongkat Ali patent for ‘new scientific uses’, says manufacturer
Biotropics Malaysia Berhad’s patent is for ‘new scientific uses’ of Tongkat Ali and not the plant itself.
Biotropics clarified this in a statement today [6 August], which follows criticism of a full-page notice published in The Star on July 31 by Biotropics’s solicitors, warning manufacturers of Tongkat Ali products of the patent.
“The Malaysian Patent No. MY-134867-A (“the patent”) was granted in respect of bioactive fraction of eurycoma longifolia (also known as Tongkat Ali), for which BMB is the sole licensee.
“While the patent does involve Tongkat Ali, the invention for which the Patent was granted was in relation to new scientific uses relating to Tongkat Ali and is not for Tongkat Ali itself,” read the statement.
According to its website, “the invention provides new use and products for the treatment of sexual dysfunction and male infertility. The products include bioactive components of extracts from roots of the plant mixed in preparations for topical application and administration.
Biotropics, a Khazanah Nasional subsidiary, clarified that the patent does not cover any traditional knowledge nor does it cover traditionally known claims in relation to Tongkat Ali such as tonic (tonik), energy (tenaga) , sexual performance (tenaga batin) or blood circulation (peredaran darah) either in supplements, food and beverage forms found in stores.
Biotropics is wholly owned by Agrifood Resources Holdings Sdn Bhd, which in turn is wholly owned by Khazanah.
The patent on Tongkat Ali is co-owned by the Energy, Science, Technology, Environment, and Climate Change Ministry and the Massachusetts Institute of Technology (MIT). It covers water extracts from Tongkat Ali for new scientific use and products.
Tongkat Ali, also known as the Malaysian ginseng, is a plant used in traditional and complementary medicine. Drinks containing its extracts are widely marketed as energy boosters or herbal supplements.
According to the notice, any producer and seller of Tongkat Ali products without permission from the ministry, MIT and Biotropics will be violating patent laws and can be fined up to RM15,000 or jailed up to two years.
PSM chairperson Dr Jeyakumar Devaraj said it was shocking that Malaysian patent laws were now misused to create monopolies over a natural product like Tongkat Ali which has been used for its medicinal properties “for centuries”.