Brazil has declared açaí, an Amazonian superfood which is deeply ingrained in the indigenous foodways as its national fruit in January 2026 (Law No. 15.330/2026). This was not a step which was put as an issue of cultural pride alone but it also aimed to be a response to biopiracy. On the surface, however, the declaration comes off as being incredibly weak. It makes us to ponder over a pertinent question: How can the multinational corporations that continue to extract, patent and commodify biological resources across borders be meaningfully restricted through a domestic and symbolic designation?
However, when read between the lines, this interventionist policy decision by Brazil reveals a more fundamental fault line in the international intellectual property regime i.e., the unresolved redistribution/recognition gap. It forces us to consider a disturbing prospect that the international response to the biopiracy is stuck in the realm of token recognition and cultural signalling, while the underlying and epistemic frameworks that facilitate such appropriation are still largely intact.
The Legal Alchemy of Erasure
The biopiracy can be defined as “the unethical or unlawful appropriation or commercial exploitation of biological materials (such as medicinal plant extracts) that are native to a particular country or territory without providing fair financial compensation to the people or government of that country or territory,” as defined by Merriam Webster. So, biopiracy is often colloquially framed as “theft,” although, such description is appealing to the intuition, it leaves the problem underestimated. What is at stake is not illegal taking, but a more covert form of alchemy of the law, a sort of metamorphosis in which some knowledge is made invisible and other knowledge is transformed into a cognisable invention within the law.
The patent law does not simply distribute rights but also it determines what is really considered as knowledge deserving legal protection. Its commitment of doctrines that encompasses novelty, individual inventions and formal disclosure are tenets that systematically favour innovations of the laboratory that are individualised. Conversely, there are seldom any collective, intergenerational, and orally passed indigenous knowledge system that can be classified under these categories simply because they do not conform to such standards. This means that they are not simply dismissed but are absorbed and neutralised by being relegated into the domain of the public.
Açaí illustrates this dynamic in an unnerving manner. The indigenous communities did not just happen to come across the fruit, they domesticated it, refined it, and acquired centuries of knowledge regarding its nutritional, medicinal and ecological benefits. It was this knowledge that maintained the economies and ecosystems of the locals long before the global markets became interested. However, when açaí became part of the international value chains, only the downstream interventions like freeze-dying techniques, nutraceutical formulations, extraction methods or branding strategies were getting legally recognised. The knowledge that made the fruit intelligible as a resource was considered as a gift of nature, whereas the knowledge that commodified it, was patentable. Such erasure, however, does not happen against the law but it happens in the normal operation of the law.
The Indian Mirror: From a Symbolic Assertion to Technical Resistance
This açaí moment evokes a familiar sense of déjà vu. India has been facing similar fights over decades using the examples of Neem, Turmeric, Basmati, and yet its reaction has taken an entirely different path. Instead of attempting to resist such misappropriation through mostly symbolic statements of cultural proprietorship, India has sought to employ the technical resistance by the patent system itself.
The statement made by Brazil is more or less a declaration of intervention of identity, a statement of where the resource belongs. The Indian strategy, in its turn, has been aimed at interfering with the process of patentability determination.
To begin with, Section 3(p) of the Indian Patents Act, 1970 is a statutory exclusionary clause that has the real doctrine force. By making patent ineligible inventions that are merely an “aggregation or duplication of known properties of traditionally known components,” the clause directly confronts then novelty discourse which is the foundation of most biopiracy claims. It acknowledges that turning traditional knowledge (TK) into a patent application does not necessarily come up with an invention. Had açaí been an Indian biological resource, Section 3(p) would have provided a clear basis to resist patents over its traditional uses.
Second, the Traditional Knowledge Digital Library (TKDL) of India represents a far more confrontational intervention than the national designation by Brazil. Where Brazil asserts who the resource belongs to, the TKDL establishes what is already known. By translating Sanskrit, Persian, Arabic and other regional texts into formats intelligible to the patent examiners at institutions like the USPTO and EPO, India converted the TK into a legally citable prior art. This move did not seek validation from the patent system; it forced the system to acknowledge knowledge it had previously rendered invisible.
Third, while both India and Brazil welcomed the 2024 WIPO Treaty on Intellectual Property, Genetic Resources, and Associated Traditional Knowledge, its limitations merit closer scrutiny. The treaty mandates disclosure of origin, but it stops short if mandating consent or benefit-sharing. Disclosure enhances transparency, but transparency alone does not alter power relations. However, contrastingly, the Indian Biological Diversity Act, 2002 requires Prior Informed Consent (PIC) from the National Biodiversity Authority, a substantive safeguard that the international regime has yet to replicate. The global framework, once again, lags behind the domestic experimentation.
Beyond Compensation: Biopiracy as Epistemic Injustice
At its core, biopiracy is not merely a distributive failure but an epistemic one. Drawing on Miranda Fricker’s concept of ‘epistemic injustice,’ indigenous communities are wronged in their capacity as knowers in at least two distinct ways.
First, there is distributive justice which is the failure to ensure fair and equitable sharing of benefits when TK is commercially exploited. This is the injustice most commonly addressed by access-benefit sharing regimes.
Second, and more insidiously, there is testimonial injustice. Indigenous knowledge is systematically discounted because it does not conform to dominant epistemic standards. Knowledge that is oral, communal, experimental and relational is presumed to be anecdotal or primitive, rather than inventive. The preference of the patent system for the laboratory validation and written disclosure becomes a mechanism through which credibility is selectively assigned.
Brazil’s declaration of açaí as a national fruit can thus be read as an attempt at testimonial correction, a demand that the fruit’s cultural and epistemic origins be acknowledged. It insists that açaí is not merely a biochemical resource, but a product of situated knowledge. However, without corresponding statutory mechanisms or enforceable rights, this recognition risks remaining symbolic. Visibility without authority and acknowledgement without control, offers little protection against appropriation.
Conclusion: From Recognition to Repair
Brazil’s declaration of açaí will matter only if it evolves from cultural signalling into an appropriate legal consequence. Symbolism can start the discussion however it cannot replace the structural reforms. A meaningful opposition to biopiracy would go beyond the frames of narrow benefits towards reimagining the law as connected to knowledge itself.
This entails, at a minimum:
- Instead of attempting to illuminate such knowledge using the inappropriate IP categories, a sui generis model needs to be devised which acknowledges the collective and community-owned rights to TK.
- Knowledge pluralism that moves beyond the post hoc compensation and toward a meaningful community participation even forms of veto power over commercialisation i.e., commercialisation i.e., the community can refuse.
- Substantive presumptions against patentability where an alleged invention relies substantially on undocumented or community-held traditional knowledge.
Lastly, this açaí moment is not about the fruit but rather about the fault lines. It exposes how biopiracy not only continues to exist due to the ineffectiveness of the regulation, but also because the legal imagination is not ready to acknowledge indigenous communities as epistemic subjects. Such visual declarations of intention as well-meaning as this are not going to have any meaningful impact until the IP law is ready to address not only who owns knowledge but also whose knowledge matters, such declarations only decorates and not demolishes the structure of appropriation.
Authored by: Ms. Jagrati Gupta
Ms. Jagrati Gupta is a law graduate from the Faculty of Law, Banaras Hindu University (BALLB, 2025) and currently pursuing an LL.M. in Intellectual Property Law at Hidayatullah National Law University, Raipur. Her academic interests lie at the intersection of intellectual property, innovation, and socio-legal justice, with a particular focus on access to medicines, equity, and the role of IP in shaping public welfare.
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