Thousands gathered in London on 19 June 2002 to speak out for trade justice. This mass lobby of Parliament was organised by the Trade Justice Movement, to challenge elected leaders to promote trade rules that work for all, not just a few. In this background paper for a seminar that examined the impacts of current trade rules on agriculture in developing countries, Lim Li Ching details why patents on life forms and living processes should not be allowed.
The World Trade Organisation's (WTO) Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) sets high minimum standards for intellectual property rights (IPRs), which WTO members have to institute through national legislation. TRIPS can be enforced through the WTO's dispute settlement system - if a country does not fulfill its IPR obligations, trade sanctions can be applied. TRIPS in effect imposes developed country standards of IPRs on developing countries, irrespective of whether their economic, technological, scientific and social development levels allow them to take advantage of the benefits of IPRs.
The benefits of strict IPR regimes have accrued overwhelmingly to developed countries and transnational corporations (TNCs). For example, patents are valid for 20 years, allowing the patent holder to effectively block competition and set the market price. The 1999 UNDP Human Development Report observed that developed countries hold 97% of all patents worldwide. In contrast, the use of IPRs is alien to many developing countries. More than 80% of patents granted in developing countries belong to residents of developed countries. Thus, TRIPS is a tool for developed countries to reap disproportionate, and often inappropriate, benefits.
Before TRIPS, most countries had excluded patenting of life forms, biological resources and knowledge on their use. However, this changed with the advent of TRIPS in 1994.
Article 27.3(b) of the TRIPS Agreement states:
Members may also exclude from patentability plants and animals other than micro-organisms, and essentially biological processes for the production of plants and animals other than non-biological and microbiological processes. However, members shall provide for the protection of plant varieties either by patents or by an effective sui generis system or by any combination thereof. The provisions of this subparagraph shall be reviewed four years after the date of entry into force of the WTO Agreement.
This effectively means that member countries must allow for patenting of micro-organisms as well as non-biological and microbiological processes. (While plants and animals, and essentially biological processes for the production of plants and animals may be excluded from patentability, the term 'may' means that the choice of exclusion is left to each country.) An artificial distinction is thus made between plants and animals, and micro-organisms. Yet, there is no scientific basis for allowing exclusions for certain organisms and living processes and not for others.
While Article 27.3(b) on first reading enables the exclusion of patenting on plants, animals and essentially biological processes, it ambiguity has enabled worldwide patenting of genes and micro-organisms, as well as genetically engineered organisms, including modified plants and animals.
This is an abominable perversion of patent law, conferring monopoly rights over life forms and life itself to commercial interests. There is no scientific basis for patenting life forms, even if they are genetically engineered. The patent system was designed to reward innovation in relation to mechanical processes and is inappropriate in relation to biological processes. While inventors who produce for the common good should be granted some protection, life forms, living processes, genes and traits are discoveries, not inventions; hence they should not be patentable.
Linked to patents on life is the huge incentive for biopiracy, whereby genetic and biological resources as well as the traditional knowledge of local communities are misappropriated by companies, institutions and individuals.
Genetic resources and knowledge of their use are mainly located in developing countries. Since most patents are registered in developed countries, the balance of benefits from the use and control of technology shifts from South to North as IPRs are applied to biological resources. Monopolisation of private and corporate rights over knowledge and biological materials erodes the rights and traditional practices of farmers, indigenous peoples and local communities. It unfairly deprives communities of their rights over, and access to, resources they have nurtured and conserved over generations.
Patents have been granted to companies for uses that have been known for thousands of years, and biopirates are claiming "inventions" they stole from farmers' markets and rainforests. Patents on genes or natural compounds from plants traditionally grown in developing countries have been filed, as have patents on genes in staple food crops originating from developing countries but now grown globally.
Many of these patents did not involve prior informed consent i.e. communities were not notified of collector's intentions, and there was no benefit sharing from commercialisation.
TRIPS has opened the floodgates to corporate patenting on life. In November 2000, according to research commissioned by The Guardian, patents were pending or granted on more than 500,000 genes and partial gene sequences in living organisms. Over 9,000 patents were pending or granted on 161,195 whole or partial human genes. The remainder of the genes on which patents were granted or pending were related to plants, animals and other organisms.
Many varieties of the world's staple food crops have been developed by farmers in developing countries over generations. However, Article 27.3(b) stipulates that plant varieties (varieties of plants developed by humans through traditional and non-traditional breeding) should be protected, either by patents, a sui generis system or a combination of both. With this, TRIPS opens the door for patenting or a system of plant breeders' rights over plant varieties. Patents are allowed on plant varieties in the US and Japan. Since 1985, about 11,000 patents on plants have been registered in the US.
Life patenters are overwhelmingly from the US, Western Europe and Japan. According to the 1999 Human Development Report, the top five biotech firms, based in the US and Europe, control more than 95% of gene transfer patents. A 2001 ActionAid report highlights that just six corporations - Aventis, Dow, Du Pont, Mitsui, Monsanto and Syngenta - control 98% of the global market for patented GM crops, 70% of the global pesticide market and 30% of the global seed market. Of the 918 patents on rice, maize, wheat, soybean and sorghum, the six corporations hold the majority (633 or 69%).
Rice is a staple food for much of the developing world. Of the 250 patents granted on rice, 152 (60.8%) are owned by corporations. In 1997, a Texas-based company RiceTec won a patent on novel basmati rice lines, seeds, grains, plants and their progeny. The patent included 20 broad claims on some varieties. Not only does this blatantly ignore the fact that basmati has been cultivated for generations in South Asia, the patent also threatened export markets of South Asian farmers to the US. The Indian government challenged the patent and the US Patent & Trademark Office struck down 15 of the 20 original claims in 2001. However, five claims on three specific varieties still stand.
Patents have also been given on genes or natural compounds from other plants traditionally grown in developing countries, including cocoa and cassava, and on genes in staple crops originating in developing countries, including maize, potato, soybean and wheat. According to ActionAid, TNCs own 70.8% of patents granted on wheat, 71% of patents granted on maize, 76% of patents granted on soybean and 46.7% of patents granted on sorghum.
Patents on staple crops intensify control on seeds, seed choices, and ultimately food security, into the hands of a few corporations, and out of the hands of farming communities. Agriculture systems are shifting towards privatisation and corporate control, and TRIPS and patents on life (genes, cells, seeds, plants and biotechnologies) are facilitating and ensuring this corporate 'take-over' both in the North and South. The impacts are however far worse in the South, where agriculture is still the main means of obtaining food, subsistence and livelihood for the majority of people.
An estimated 1.4 billion women and men rely on farm saved seed for their livelihoods. Farming communities of many countries have a tradition of free exchange of seeds and genetic materials.
Patents will reduce farmers' access to seed and genetic resources. Seeds would become more expensive, due to royalty fees charged by the patent owner. Once a patented seed is planted, farmers could be forced by companies to purchase new seed every year, and penalised if they save seed. This will impact on a farmer's right to save, grow, exchange, re-use and sell (patented) seeds. Patented seeds are also often sold as a package with fertiliser, pesticides and herbicides, further increasing dependence on corporations.
Traditionally, poor farmers reduce the risk of crop failure by planting a variety of crops with different environmental requirements and varying tolerances to pests and diseases. This practice maintains biodiversity, so that future generations can select varieties best adapted to changing environmental, economic and social pressures. However, patented seed reduces the genetic base, narrowing farmers' options, as fewer varieties, marketed extensively by corporations (including genetically engineered ones), take the place of traditional diverse varieties.
Genetic engineering has also opened up more areas for patenting of living organisms, further increasing corporate control over agriculture. But some scientists argue that patents on transgenic processes should not be allowed, as the processes are not inventions - they are unreliable, uncontrollable, unpredictable and inherently hazardous.
An important class of transgenic process patents are on Genetic Use Restriction Technologies (GURTS), the most infamous of which is 'Terminator Technology'. Terminator Technology genetically engineers sterile seed, offering de facto protection of transgenic seeds, but removing farmers' right to use saved seed. GURTS make seeds dependent on the application of a proprietary chemical for germination, or for expression of a desired transgenic trait, locking farmers into dependence on corporations.
Following protests by civil society, corporations such as Monsanto and AstraZeneca (now Syngenta) rescinded, claiming they would not commercialise such technologies. However, investigation by the ETC Group has shown that companies have persisted in researching and applying for patents on GURTS. Syngenta, the world's largest agrochemical corporation, was granted a GURTS patent on 8 May 2001, under the pretext of biosafety! In an ironic twist, GURTS are pushed by the biotech industry as beneficial to stop transgene escape.
Companies are racing to map the genomes of the world's staple food crops, with a view to patenting the vital and most interesting genes. Rough drafts of the rice genome were published in the 5 April 2002 issue of Science by the Beijing Genomics Institute on the subspecies indica, the most widely cultivated in China and most of the rest of Asia, and by Syngenta on the japonica subspecies, grown in Japan and other temperate countries.
Syngenta refused to deposit its rice sequence data in the public database GenBank, defying normal practice. Science published the Syngenta draft without full disclosure of the sequence, in a deal that denies public access to the rice genome data. While Syngenta made available the sequence on its website and a CD-ROM, allowing researchers to use raw data, it limited how much data could be published at one time. Scientists doing commercial work were required to negotiate access to the data. Recently, Syngenta has agreed to a fuller release of the data. Nonetheless, intensification of the trend of private monopolisation of knowledge and genetic resources would make it more difficult for researchers to make use of genetic material for research that benefits the poor.
The mandated review of Article 27.3(b) started in 1999 but there has been no resolution yet. Initially, some countries asserted that the review is about implementation while developing countries contended that it is about the fundamental rationale of patenting life forms. Developed countries have since taken a more active role in responding to developing countries' concerns.
The Africa group (42 countries) in the WTO had proposed in 1999 that the review consider substantive issues and resolve the artificial distinctions made between micro-organisms and other organisms, and microbiological processes and other biological processes, by making clear that plants, animals and micro-organisms and their parts (i.e. genes, gene sequences, genomes, cells, proteins, seeds, etc.) and all living processes, cannot be patentable.
The Africa Group also recommended that the review consider the obligation to set up a patent system or a sui generis system or a combination of both to protect plant varieties. Developing countries prefer a sui generis system for more flexibility, as opposed to patents. Having opted for the former, they are being pressured by developed countries to adopt the UPOV (Union for the Protection of New Varieties of Plants) system. The last review of UPOV in 1991 strengthened the position of commercial plant breeders' rights, at the expense of farmers' rights. It enables plant breeders to obtain royalties from farmers using seeds, while curtailing their right to save seed, and is a way of exercising near-monopoly control. Additionally, UPOV's requirement of uniformity and stability encourages breeders to work with 'elite germplasm', producing a limited range of similar seeds, threatening genetic diversity.
The Africa Group proposed that developing countries be allowed to institute a sui generis law that protects the knowledge and innovations of indigenous and local farming communities, and safeguards traditional farming practices including the right to save, exchange and use seeds. Such a system considers the appropriate balance between the rights of private breeders, farmers, local communities and consumers. It reaffirms the role and value of traditional knowledge and the rights of farmers, indigenous peoples and local communities.
The Africa Group, prior to the Doha Ministerial, made several proposals with respect to TRIPS, which reiterated their position of 1999. The Doha Ministerial Declaration has mandated the continuation of the Article 27.3(b) review, and it would appear that all proposals remain on the table. The mandate requires that members take account of issues such as the relationship between TRIPS and the Convention on Biological Diversity, and protection of traditional knowledge.
Article first published 03/07/02
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