Thousands gathered in London to demand trade justice for the developing world in a mass lobby of Parliament. They want trade rules that work for all, not just a few. Lim Li Ching argues why patents on life forms and living processes, as afforded under current trade rules, undermine food security.
On 19 June 2002, twelve thousand people descended on Parliament to lobby their MPs, calling for a change in unfair trade rules. The mass lobby was organised by the Trade Justice Movement, an alliance of 43 UK NGOs, and the number is growing.
People came from all over the UK, as far as Northern Ireland and Scotland. They also came from Malaysia, Uganda, Barbados, India, Mali, Ghana and South Africa, all united in their demand for trade rules that work fairly for everyone.
Three hundred politicians met their constituents, including Deputy Prime Minister John Prescott and opposition leader Iain Duncan Smith. Inside Westminster, the first question raised during Prime Minister's Questions was concerning the mass lobby. And at the rally held prior to the lobby, it was announced that Tony Blair had met with organisers in the morning, and that the South African President Thabo Mbeki had called to express support.
One of the major inequities imposed by the rich countries on the poor is the patents regime, currently fought over in the World Trade Organisation (WTO). The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) forces WTO members to protect intellectual property rights (IPRs) 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. But this effectively imposes developed country standards of IPRs on developing countries, irrespective of whether it is counter to their cultural values and their economic, technological, scientific and social development levels.
The strict IPRs regimes have overwhelmingly benefited developed countries and transnational corporations. For example, the 1999 UNDP Human Development Report observed that developed countries hold 97% of all patents (a type of IPRs) worldwide. Patents are valid for 20 years, allowing the patent holder to block competition and set the market price. In contrast, the concept 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. Vandana Shiva has characterised this as "monopolisation by the rich, while the poor pay".
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.
Article 27.3(b) effectively mandates WTO members to allow patenting of micro-organisms as well as non-biological and microbiological processes. Plants and animals, and essentially biological processes for the production of plants and animals may be excluded from patentability, but the choice of exclusion is left to each country.
An artificial distinction is thus made between plants and animals, and micro-organisms, for which there is no scientific basis. Furthermore, this 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, because it confers monopoly rights over life forms and life itself for commercial exploitation. The patent system was designed to reward innovation in relation to mechanical processes and is inappropriate in relation to biological processes. Patents may be appropriate for protecting genuine inventions, but are inappropriate applied to life forms, living processes, genes and traits, which are all discoveries at best.
Granting patents on life encourages biopiracy, the theft of genetic resources and traditional knowledge belonging to local communities.
Genetic resources and knowledge of their use are mainly located in developing countries. Yet, patents are overwhelmingly granted to companies based on knowledge accumulated over thousands of years and for resources stolen from farmers' markets and rainforests. Patents have been filed on genes or natural compounds from plants traditionally grown in developing countries, including genes in staple food crops originating from developing countries but now grown globally. Most of the patents did not involve prior informed consent i.e. communities were not notified of collector's intentions, and there was no benefit sharing from commercial exploitation.
These patents frequently end up being owned by corporations. This seriously erodes the rights of farmers, indigenous peoples and local communities, depriving communities of their access to resources they have nurtured and conserved over generations. Since most patents are registered in developed countries, the balance of benefits shifts from South to North as IPRs are applied to biological resources. Worse yet, the patented product may be sold at relatively high prices to developing countries, including those countries from which the product originated.
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.
TRIPS has also facilitated patenting over plant varieties (varieties of plants developed by humans through traditional and non-traditional breeding), as Article 27.3(b) stipulates that plant varieties should be protected, either by patents, a sui generis (unique) system or a combination of both. 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.
An ActionAid (2001) report highlighted 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. The same six corporations own 60.8% of patents granted on rice, 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. These are all staples that supply most of the calories for the poor.
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 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. TRIPS and patents on life are facilitating 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 to guarantee food security.
Patents on seeds 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 variety of seed is planted, farmers could be forced by companies to purchase new seeds every year, and penalised if they save seeds. 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.
Patents on food crops and seeds also reduce agricultural biodiversity, as companies control the market with a few patented varieties. This narrows farmers' options, displacing diverse traditional varieties, and undermines the farmers' ability to reduce the risk of crop failure. Traditionally, farmers select a range of crops best suited to different environmental conditions, and that have varying tolerances to pests and diseases, thus spreading the risks of crop failure.
Genetic engineering has greatly increased the opportunities for patenting of living organisms. Some scientists argue that patents on transgenic processes should not be allowed, as the transgenic process hardly qualifies as a technology, much less an invention. It is unreliable, uncontrollable, unpredictable and also 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 seed to grow plants that then produce sterile seed. This makes it impossible to save seeds, forcing farmers to buy new seeds each year.
Some GURTS engineer seeds to be dependent on the application of a proprietary chemical for germination, or for expression of a desired transgenic trait, the chemicals being sold by the same companies, thereby locking farmers into further corporate dependence.
Following widespread protests by civil society, corporations such as Monsanto and AstraZeneca (now Syngenta) claimed 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 was granted a GURTS patent on 8 May 2001, under the pretext of biosafety, to stop transgene escape.
Companies are also racing to map the genomes of the world's staple food crops, and to patent their 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. 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 Africa Group in the WTO, in particular, has recognised the serious implications TRIPS would have on the rights of local communities to self-determination and food security. It had proposed in 1999 that the mandated review of Article 27.3(b) at the WTO should make 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 patented. This position is gaining increasing support among countries in the Third World.
The Africa Group also recommended that the review consider the obligation 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. 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 instead 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.
Prior to the Doha Ministerial in November 2001, the Africa Group again made several proposals with respect to TRIPS, which reiterated their previous position. The Doha Ministerial Declaration has mandated the continuation of the Article 27.3(b) review, and it appears 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 the protection of traditional knowledge.
Article first published 15/07/02
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