In late 2006, Indonesia sparked a furor in the international public health community when the country announced it would no longer supply samples of the H5N1 strain of bird flu to the World Health Organization. It wasn't fair, complained the developing nation, which is second only to Vietnam in recorded cases of human deaths from bird flu: Indonesia was providing crucial data for researchers working on vaccines, but prices for proprietary pharmaceutical products resulting from that data were too high for most Indonesians to afford. If you want to understand why citizens of developing nations get aggrieved about biopiracy, there's a clue.

After a flurry of worldwide publicity, Indonesia relented, and in March announced it would resume sending samples to the W.H.O., provided that the samples were not made available to commercial organizations. The debate over how best to serve the interests of both developing nations and pharmaceutical companies was by no means resolved, and according to the New York Times, Indonesia received only a tepid promise from W.H.O. "not to pass their samples on to commercial manufacturers without consulting the health minister of the country that provided the sample," but a clear point had been made.

Now in what appears to be something of a scoop, a freelancer writer and specialist in patents has revealed that even as Indonesia was threatening to withhold its samples, the United States government was applying for an international patent on a new vaccine that incorporates genetic code derived from Indonesian avian influenza samples.

Writes Edward Hammond, in the Aug. 15 issues of SUNS:

In a development that is likely to raise more pressing questions about reform of the WHO Global Influenza Surveillance Network (GISN), an international patent application has surfaced in which the U.S. Centers for Disease Control (CDC) and U.S. National Institutes of Health claim ownership of Indonesian influenza genes.

A recent patent search has revealed that the CDC, which is a WHO collaborating centre, is applying for a patent for a new vaccine against influenza, particularly for bird flu (H5N1). The vaccine incorporates genes from a H5N1 strain isolated from an Indonesian human victim of bird flu in 2005.

The strain that contains the genes was transferred to the WHO GISN by Indonesia for characterization for public health purposes, but may wind up as the property of the US government.

Under U.S. law, the U.S. government agencies would offer licenses to the technology to pharmaceutical companies. The patent application indicates that the US government intends to pursue the claim in most countries of the world, including Indonesia itself, as well as neighboring countries.

One follower of intellectual property and public health at the blog IPMed found the patent application "troubling":

The patent application raises specific questions about the US CDC, which is a WHO Collaborating Center for influenza virus studies. The WHO Collaborating Centers receive influenza viruses from donor countries for public health characterization purposes, and not for the purposes of making proprietary claims. The Global Influenza Surveillance Network's effectiveness rests on the prompt sharing of and access to viruses from all donors. However, one wonders how many donor countries will wish to continue to share influenza viruses for research and vaccine development if it is that Governments who operate Collaborating Centers are minded to make proprietary claims over the materials which they have received as a result of the GISN system. Obviously this patent application built on the back of the GISN system of virus sharing will call into question the entire system and may very well undermine its effectiveness.

Admittedly, there is something very odd, and slightly disturbing, in the spectacle of a fight over who owns the DNA of a virus that could kill millions of people around the world. Should a country retain property rights to the strains of diseases that plague its citizens? There is also, as always, the niggling question of how the world is to fund the development of new vaccines if the few companies that are capable of producing the medicine aren't compensated for their efforts. Finally, it would seem to me that there is a clear difference between a U.S. government agency owning a patent and a company such as GlaxoSmithKline staking the claim.

Unless, of course, the U.S. does end up licensing its patent to Big Pharma without requiring some developing nation equity, in return.