IP And Genetically Modified Organisms: A Fateful Combination
Intellectual Property Watch, 2 December 2008
With the expanding scope of patents on genetically modified organisms (GMOs) and the implementation of such crops in most countries, farmers' rights and biodiversity are at risk, and food security has become dependent on a few transnational biotechnological companies, according to speakers at a recent workshop in Geneva.
The workshop was hosted by 3D (Trade - Human Rights - Equitable Economy) during an event organised by the Institute for Trade and Agriculture Policy from 24 to 26 November on the impact of trade and investment on the right to food.
IP rights are at the core of the expansion of GMOs, although agriculture was not always covered by those rights. Prior to the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), countries could exclude some industrial and technological sectors from IP protection and most countries excluded the pharmaceutical, food and beverage sectors, according to Sangeeta Shashikant from the Third World Network.
In TRIPS, one of the most controversial articles is Article 27.3b. It relates to the right for members to exclude from patentability "plants and animals other than micro-organisms, and essentially biological processes for the production of plants or animals other than non-biological and microbiological processes” but asks them to provide for the protection of plant varieties either by patent or by an effective sui generis system. Shashikant said the article favoured the developed country biotechnology industry as it required countries to grant patents on micro-organisms, in which they have an advantage.
"The question is to know whether this applies to genetically modified organisms and not to naturally occurring micro-organisms," she said, adding that the definition of micro-organisms does not make clear which it relates to.
There is an ongoing review of Article 27.3b and some countries such as Brazil, India and Thailand are asking that the article be clarified, she said.
Bilateral free trade agreements are also reducing TRIPS flexibilities, Shashikant said. For example, US free trade agreements require ratification of the latest act of the International Convention For the Protection of New Varieties of Plants (UPOV), known as UPOV 91, since it was adopted in 1991. This is the fourth act of the convention [pdf] first adopted in 1961. UPOV’s main mission, according to its website, is to “protect new varieties of plants by an intellectual property right.”
In recent decades, each version of the convention has strengthened the rights of plant breeders at the expense of traditional farmers or further research and development, according to Maria Julia Oliva of the International Centre for Trade and Sustainable Development (ICTSD). UPOV 91 gives significant protection to plant breeders and “for the first time allows a double protection of plant variety, not only the plant certificate but also a recognition that countries, will, do, and perhaps even should grant patents as additional protection. Whatever flexibility was available with plant certificates is being lost under this system.”
The main problem for civil society is how to best engage with the World Intellectual Property Organization (WIPO) and UPOV. WIPO is fairly easy to engage, getting an observer status is not too difficult and the WIPO Development Agenda (recently passed to infuse a development dimension into all of its work) is a good example of how a proactive approach can work, Oliva said. But UPOV has proved incredibly difficult. “You need to be breeding plants to be able to participate,” she said.
“There is no public interest civil society representation in UPOV and most of the UPOV documents are not available publicly” said Shashikant. UPOV does not really engage in discussions. The decisions are quickly adopted and the countries wanting to become members have to make sure that their legislations are compliant with UPOV. This is becoming a major problem as more countries are signing UPOV 91,” she said.
According to a participant, there are a number of developing countries with important agro-business industries which are members of UPOV (though they are mostly bound by UPOV 1978), a situation which creates a greater diversity in developing country positions in comparison to most other IP issues discussed at WIPO.
UPOV submits reports regularly to the WTO TRIPS Council on the technical cooperation activities UPOV carries out. These reports contains a wealth of information on the countries to which UPOV is providing legislative advice as well as the seminars, workshops and training activities it organises in developing countries, the participant said. “There is a lot of material that can be used and analysed for advocacy and engagement purposes,” he said.
Technical Assistance is Key to TRIPS Implementation
TRIPS included new areas of IP protection with which many developing countries were not familiar and plant variety protection was an area where most of these countries had little expertise, said Ahmed Abdel Latif, programme manager for IP at ICTSD. Many developing countries thus relied significantly on technical assistance, and particularly legislative advice, in drafting their national laws to implement their TRIPS obligations.
Article 27.3b leaves developing countries the possibility to choose how to protect plant varieties, without defining which sui generis system they should adopt, he said.
“From this perspective, the WIPO Development Agenda represents a positive development toward ensuring that the advice provided to developing countries to implement their international obligations integrates flexibilities contained in the TRIPS Agreement, including in areas such as plant variety protection, where the choice of protection approach by developing countries should be primarily guided by their development levels, priorities and needs,” Latif told Intellectual Property Watch later.
Large Biotech Companies Expanding Influence Through Patents
Without IP rights, GMOs could not have spread in such a large and rapid way, according to Esther Bett from the Resources Oriented Development Initiatives in Kenya. Large companies have been consolidating their influence on the seed market, such as Monsanto, which now holds 33 percent of the global proprietary seed market, Bett said. In 2007, 10 companies controlled 67 percent of the US$22 billion market. Monsanto not only buys local seed companies to expand but also licences its GM seeds to other corporations.
Some new trends are appearing in the patenting of agriculture, she said, such as genetic trait stacking, enabling the breeder to patent two or three GM traits in the same plant. The GM maize of Monsanto for example includes two insecticide genes plus an herbicide tolerant gene.
Cross-licensing also is increasing with more collaboration between large corporations aiming to lessen their costly IP litigations, consolidating their power and expanding their market in developing countries, Bett said. Monsanto and BASF announced a US$1.5 billion collaboration in research and development. “That means higher prices for farmers but fewer options available and a lack of innovation in the market,” she said.
Finally, she said, there is the massive patenting of the so-called climate genes. Companies are seeking to gain monopoly on patents for plants withstanding environmental duress such as drought or salinity. To date, over 500 patents have been filed by companies such as Monsanto, BASF, DuPont, Syngenta and Bayer. And although biotech companies are advertising their concern for the environment, pesticide use is on a steady rise, endangering human health, according to workshop participants.
Patenting of Conventional Seeds and Animals Hotly Opposed
Conventional seeds and animals are also directly affected by patents said Christina Goethe from Swissaid. Hundreds of patent are being filed at the European Patent Office and an important case is being examined by the Enlarged Board of Appeal of the EPO. This so-called “ broccoli case” involves a patent referring to methods for producing new Brassica plants, in particular broccoli. The patent has been appealed by two companies, among which is French company Limagrain.
Five non-governmental organisations (the Berne Declaration, Greenpeace, Swissaid, Misereor and Kein Patent auf Leben) have launched a global appeal and are writing a joint letter to the Enlarged Board of Appeal at the EPO to restate their opposition to patents on conventional seeds and animals. They have been joined by over 50 farmers’ organisation and are hoping to attract still more support from major farmers organisations worldwide.
They claim the decision of the Enlarged Body of Appeal will be binding for all other pending patent applications on conventionally bred plants and animals.