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Battle Brewing Over Patented Dragons

Posted: Jan. 25, 2012, 2:25 p.m. EST


There are currently three countries that legally breed the dragon fish, which is listed in the Convention on International Trade in Endangered Species (CITES–I), in captivity: Indonesia, Malaysia and Singapore. Indonesia is the leader with 40 farms registered with CITES to breed Scleropages formosus. Malaysia and Singapore currently have 28 registered farms each, although this number is likely to increase in the near future.

Dragon fish
In response to Malaysia’s move, Indonesia is taking steps to patent its own dragon fish, including the highly-sought-after red varieties.
Photo by John Dawes

In 2003, a scientific paper* claimed there are not one, but four species of dragon fish. In addition, it referred to a golden crossback form found in Bukit Merah Lake, in Perak, Malaysia. This form, however, was not studied by the scientists involved in the 2003 publication. Irrespective of this, the proposal has failed to obtain universal acceptance, despite the so-called “species” being included in FishBase--the largest online fish database.

Up to now, all three dragon fish-breeding countries have bred and sold the established as well as the other varieties of dragon fish and, while competition has always been keen, there’s never been any political or other type of wrangle between them. All that is dramatically changing, however, with the announcement by Malaysia that it is planning to patent the above-mentioned dragon fish from Bukit Merah.

This caused quite a stir within Indonesia, which claims the Bukit Merah dragon fish may actually be a crossbreed that originated in Indonesia. Singapore, meanwhile, has not issued any official statement on the matter at the time of writing.

It is not clear why Malaysia is taking this unusual step, since patenting living organisms is extremely difficult. For starters, the organism in question has to be “new,” a criterion the Bukit Merah dragon fish does not appear to meet. But this is only one of many problematic areas that would need to be tackled.
There is, for example, the matter of the dispute with Indonesia. This would need to be settled before any patent is granted, although Malaysia claims it has kept tissues and live specimens of the fish since the 1990s, and is thus able to identify its dragons through their DNA. Whether this proves the fish is truly endemic to Malaysia or not is open to question by Indonesia, which, for its part, is now planning to take steps to register its own varieties of dragon fish.

Gerald Koh, a Singapore lawyer, is quoted by The Jakarta Globe as suggesting that Malaysia or Indonesia could apply for a trademark, rather than a patent, but this would only give them brand protection. In other words, other countries and sellers could market the same fish by using a different brand name.

There’s also the possibility the Malaysian move may be more hype than anything else, or so an Indonesian Intellectual Property website (IP Komodo - http://ipkomododragon.blogspot.com/2011/10/fishy-patent-claim-in-malaysia-to-which.htm) seems to suggest. According to a post made on October 24, 2011: “IP Komodo believes the patent threat is mere puffery, as it surely wouldn’t meet patentability standards. But wrapping layers of IP (even some spurious layers) around any product is a tried and tested way to boost marketability and in turn value in a product.”

The product in question already generates a great deal of revenue for Malaysia—approximately U.S.$46.7 million in 2009. So, if Malaysia’s patent-seeking measure is “mere puffery,” but results in boosting the marketability and value of the golden crossback, the already-lucrative product could be even more precious for the country’s coffers.

There’s clearly much ground that needs to be covered and fought over before this matter is resolved—if it is ever resolved. Malaysia is, however, not wasting time and its Department of Fisheries is reportedly already working with CITES to develop a standard for identifying the Malaysia (Bukit Merah Lake) golden dragon. I get the feeling things are just beginning to warm up.

*“The different colour varieties of the Asian arowana Scleropages formosus [Osteoglossidae] are distinct species: Morphologic and genetic evidences,” by Laurent Pouyaud, Sudarto and Guy G. Teugels

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