Select Committee on Environmental Audit Appendices to the Minutes of Evidence


APPENDIX 7

Trade Related Intellectual Property Rights (TRIPs) and Farmers' Rights

  "The TRIPs Agreement creates potential for disastrous conflicts between the technologically-advanced and less technologically advanced countries," said Philomenon Yang, the Cameroon Ambassador, speaking on behalf of the African Group at the Intersessional Meeting of the UN Convention on Biodiversity (CBD) in July 1999. [2]

  A major battle at the WTO Ministerial Meeting in Seattle will be on the life patent provisions of WTO's Trade Related Intellectual Property Rights (TRIPs) agreement. One small paragraph, Article 27.3(b), has already sparked a clear North/South divide. Article 27.3(b) [3]of the TRIPs agreement requires WTO members to provide intellectual property rights over plants and animal varieties. The controversy centres around how this could impact on the traditional right of farmers to save, exchange and sell seed.

  Communities across Asia, Africa and Latin America support global food security through their farming, indigenous knowledge and cultural systems. At the centre of these practices is that of saving, exchanging and selling seeds, which has been the right and practice over centuries for millions of subsistence farmers across the developing world.

  The TRIPs agreement is controversial because it recognises patents on plants that have been developed through biotechnology using plant varieties that themselves are the result of years of cross breeding by farmers. This implies that TRIPs, does not recognise communities' rights over their resources but those of individuals and companies claiming the patents as their own inventions.

  Already, patent offices have granted patents to multinational companies on staple crops in the developing world such as basmati rice. This is dubbed "biopiracy" by developing countries [see case studies below].

  Instead of TRIPs helping development and fostering trade, the governments in the South are bogged down financially and technically in implementing WTO agreements. India has a backlog of 30,000 patents with another 13,000 joining the queue between December 1998 to July 1999. It takes from five to six years to grant a patent and the designated offices to perform this function are not equipped to take on such a huge rush. (The Hindustan Times, New Delhi, 28.8.99)

  Although, article 27.3(b) provides an exclusion from patentability of plants and animals, and essentially biologically processes for the production of plants or animals, the provision requires members to protect plant and animal varieties through patents or an effective sui generis—"of its own kind"—system.

  There is no agreement within the WTO on what an "effective sui generis system" means. Industrialised nations are interpreting it as the model provided by the Union for the Protection of New Varieties of Plants (UPOV). The UPOV is a narrowly defined agreement which provides limited rights to farmers and accepts the concept of patenting of plant varieties. But developing countries are in the process of developing their own sui generis legislation, which is WTO-compatible and suits their country requirements and protects farmers' rights.

  The life patent provisions of Aricle 27.3(b) of TRIPs are up for review in November 1999, with a full review of the TRIPs Agreement in 2000. Though the review is part of a built-in agenda, there is a great uncertainty on the nature and scope of the review. The US and the EU think the review should form purely on implementation of the provisions (which applies to the developed countries, since the developing countries are still to implement TRIPs); whereas developing countries see it as a "substantive" review of the provisions themselves.

ACTIONAID RECOMMENDATIONS

  The same logic that informed a recent Anglo-American agreement between Tony Blair and Bill Clinton to protect from patenting the 400,000 genes that control the human body—because concerns for the common good of humanity—should inform decisions on patenting of life forms in food and agriculture.

  In the 1999-2000 review governments should:

    —  support an amendment to Article 27.3(b) that would enable WTO members to exclude all genetic resources for food and agriculture from the TRIPs agreement;

    —  recognise and protect the traditional knowledge, innovations, practices and technologies of indigenous people and farming communities;

    —  ensure that the provisions of the Convention on Biological Diversity (CBD) take precedence over the WTO TRIPs Agreement. This relates particularly to Article 8j of the CBD, which obliges member states to recognise and protect the knowledge, innovations, practices and technologies of indigenous and local communities which is not recognised under the TRIPs agreement; and to Article 15 of the CBD that recognises the sovereign rights of States over their biodiversity and genetic resources as well as the requirement of prior informed consent of States and local communities and indigenous peoples when accessing such resources and related community);

    —  ActionAid urges governments to halt the commercial introduction of GM seeds where these may impact on farmers' rights and food security; and freeze the use, shipment and sale of GM seeds to allow full socio-economic and scientific review into their impact.

PATENTS AND BIODIVERSITY

  Developing countries are the source of 90 per cent of the world's biological resources. (India is home to 45,000 plant species and 75,000 animal species).

  Yet developed countries and their transnational companies hold 97 per cent of all patents worldwide. Since 1985 there have been 10,778 patents on plants registered in the US. Overall, patent applications at the World Intellectual Property Organisation have soared from 3,000 in 1979 to 67,000 in 1997.

  Patents grant monopoly power to the patent holder. Nowadays it can cost $1 million to file an international patent. And price rises go hand in hand with monopoly power and patent protection. In the US, the cost to farmers of seeds, fertilizers and agricultural chemicals shot up by 86 per cent between 1987-97.[4]

  The US International Trade Commission claims that US industry is losing $100-$300 million per year because of "weak" intellectual property protection in the developing world.

  However according to the US-based Rural Advancement Foundation International (RAFI), if contributions of peasants and tribespeople from the developing world are taken into account, the US would owe Southern countries $2.7 billion.[5] Brazil estimates that this "biopiracy" costs $9 million.

  As one Southern analyst puts it: "patents provide monopoly domination not only through technological supremacy but also by extending control over the biological wealth and the traditional knowledge of the gene-rich developing countries".[6]

  The Indian Government has challenged successfully a patent on Turmeric, (see case study below) but it is very expensive for Southern groups to challenge a bad patent. Pakistani rice growers were thwarted in September this year from challenging Rice Tec's patent on basmati rice when American lawyers demanded a deposit of £300,000. (The Guardian, 15 September 1999.)

Biopiracy Case Study 1: turmeric

  In March 1995, two expatriate Indians at the University of Mississippi Medical Centre (Suman K Das and Hari Har P Cohly) were granted a US patent (US 5,401,504) for turmeric to be used to heal wounds. The Indian Council for Scientific and Industrial Research (CSIR) filed a case with the US Patent Office challenging the patent on the grounds of "prior art" ie existing public knowledge. CSIR said turmeric has been used for thousands of years for healing wounds and rashes and therefore its use as a medicine was not a new invention. The claim had to be backed by written documentation claiming traditional wisdom. The CSIR went so far as to present an ancient Sanskrit text and a paper published in 1953 in the Journal of the Indian Medical Association. The US Patent Office upheld the objection and cancelled the patent (Trade & Development Centre: A Joint Venture of the World Bank and the World Trade Organisation). [7]It also cancelled several other patent applications pending for turmeric.

Biopiracy Case Study 2: Karela

  The US law does not take into account the use of the technology elsewhere in the world. It encourages biopiracy. On 4 May 1999 the United States Patent Office granted a patent (US 5,900,240) to a New Jersey-based company Cromak Research Inc, for an edible herbal mixture comprising karela, jamun, gurmar and brinjal. Karela juice has long been used in India as an anti-diabetic mixture and has been documented in authoritative treatises such as Wealth of India and the Compendium of Indian Medicinal Plants. (The Hindustan Times, New Delhi, 1999). While this patent was taken out of the mixture of the above and not on the whole vegetable or fruit, it still raises serious concerns about the exploitation of indigenous and traditional Indian knowledge.

Biopiracy Case Study 3: Quinoa

  In 1994, two scientists from Colorado State University received US patent 5,304,718 on Bolivian quinoa, which is a staple food crop in the Andes, particularly for the Quechua and Aymara people in Chile, Bolivia, Peru and Ecuador. The broad-spectrum patent was not limited to a single hybrid, but covered any quinoa hybrid derived from "Apelawa", the male sterile cytoplasm found in Quinoa, including 36 traditional varieties. Bolivia, exports quinoa worth an estimated $1 million each year. The patent was abandoned after pressure from indigenous and campaigning groups. But if this patent had got into the hands of commercial businesses they would have been able to prevent Bolivian exports of quinoa to the United States. This would have had serious consequences for the thousands of Bolivian smallholders who grow quinoa for export.

Biopiracy Case Study 4: Brazzein berries

  Researchers from the University of Wisconsin gained three patents (US 5,326,580; 5,346,998; 5,527,555) on proteins isolated from the brazzein. The berry is indigenous to Gabon and is 2,000 times sweeter than sugar. Known locally as J'oublie, its qualities have long been known by West Africans. The researcher, Goran Hellekant, watched locals each brazzein and decided "there was something of value there," according to RAFI. The university claims the researcher is the sole "inventor" of the potentially lucrative sweetener.

  The US sweetener market is $2 billion and annual world-wide sales top $100 billion. Scientists isolated and sequenced the DNA encoding for the production of brazzein's sweet protein and then worked on ways to produce brazzein in the laboratory, thereby eliminating the need to grow it in Africa.

  A University spokesman told RAFI that brazzein "is an invention of a UW-Madison researcher" and "Wisconsin has no connection to Gabon". One claim for the sweetener made in patent number US 5,527,555 is to "provide brazzein in large quantities, at low cost, by artificial means".

  Local knowledge and innovation of the West African people has not been recognised, whereas the isolation and reproduction of the berry in a US laboratory has.

Biopiracy Case Study 5: Neem

  Natural extracts from the seed of the neem tree which is found across Asia, especially India, are the key ingredient in three new commercial products registered by the US Environmental Protection Agency for pest and disease control. Their findings were that neem extracts can control pests such as whiteflies, aphids, mealy bugs and mites. Also that neem can protect ornamental and food crops against fungus diseases such as rusts and powdery mildew that attack leaves. The products, the first to control insects and fungi at the same time, were developed under a co-operative research and development agreement between ARS and WR Grace and Company of Columbia, (patents 5,298,251; 5,356,628; 5,372,817; 5,405,612; and 5,409,708)[8].

  Overall, there are 70 patents on products from the neem tree. Dried neem leaves have been used for centuries in India to protect clothes and grains against fungus and the "find" is not new. Patents encourage such misappropriation of indigenous knowlege.

Biopiracy Case Study 6: Basmati rice

  India grows 650,000 tonnes of Basmati rice annually. Basmati covers 10-15 per cent of the total land area under rice cultivation in India and exports were 488,700 tonnes and earned the exchequer Rs 11.2 billion ($280 million) in 1996-97. Basmati rice has been one of the fastest growing export items from India in recent years. The main importers of Indian Basmati are the Middle East (65 per cent of Basmati Exports), Europe (20 per cent) and USA (10-15 per cent). At $850 a tonne, Indian Basmati is the most expensive rice imported by the EU compared to $700 a tonne for Pakistani Basmati and $500 a tonne for Thai fragrant rice. Indian Basmati exports to the EU in 1996-97 amounted to nearly 100,000 tonnes.

  On 2 September 1997, the Texas-based Rice Tec Inc was granted US patent 5,663,484 on Basmati rice lines and grains. Rice Tec gained patent rights on Basmati rice and grains while already trading in its brand names such as Kasmati, Texmati and Jasmati. This patent allows Rice Tec to sell a "new" variety of Basmati, which it claims to have developed under the name of Basmati, in the US and abroad.

  The following abstract from patent number 5,663484, issued by the US Patent and Trademark Office (USPTO) demonstrates how broad a patent can be: "The invention relates to novel rice lines and to plants and grains of these lines and to a method for breeding these lines. The invention also relates to a novel means for determining the cooking and starch properties of rice grains and its use in identifying desirable rice lines."

  The Basmati variety, on which Rice Tec has claimed a patent, has been derived from Indian Basmati crossed with semi-dwarf varieties, including indica varieties. Thus the patent is for a variety that is essentially derived from a farmers' variety. It is simply cross-breeding. Therefore it should not be treated as novel and the patent falsely claims a derivation as an invention. (Basmati Rice Patent, RAFI Geno-Types, April 1998.) Basmati is unique to the Punjab border region of India and Pakistan; in the same way that champagne is unique to a specific area of France.

  According to a dossier by Research Foundation for Science and Technology, the Basmati patent is a clear case of biopiracy and represents a theft in three ways:

    —  It is a theft of collective intellectual biodivesity heritage of Indian farmers who have evolved and bred Basmati varieties.

    —  It is a theft from Indian traders and exporters whose markets are being stolen by the theft of Indian aromatic rice varieties.

    —  It is a theft of the name "Basmati" which describes the aromatic characteristics of the rice.

  (Basmati Biopiracy, Research Foundation for Science, Technology and Ecology India. July 1998.)

IPRS AND INNOVATION

  The argument that intellectual property rights protection encourages innovation is not well placed. The economic benefits and costs of IPRs are not clear-cut, as the World Bank admits in its 1998-99 World Development Report, Knowledge for Development. Patents can have anti-competitive effects by securing and strengthening the position of market leaders and limiting the entry of new competitors. The report admits that "tighter IPRs can disadvantage developing countries in two ways: by increasing the knowledge gap and by shifting bargaining power towards the producers of knowledge, most of who reside in industrial countries". Furthermore, studies carried out in the UK and USA have indicated patents protection was not neccessary for innovation in the industrial development of these countries. [9]Studies suggest that patents are used to block other companies from entry into the market. [10] For example, partly as a result of the extension of plant variety protection and the willingness of US courts to extend utility patents to organisms, the number of independent seed companies worldwide has declined markedly over the last two decades.

PATENTS AND POOR FARMERS

  In the developing world, only 10 per cent of seed is bought cocmmercialy, many poor farmers buy seed only once in five years.

  ActionAid's analysis is that patents and other intellectual property rights protection on genetic resources for food and agriculture can decrease farmers' access to seed, reduce efforts in public plant breeding, increase loss of genetic resources, prevent seed/plant sharing and can put poor farmers out of business.

  Many argue that farmers have a choice between using local or proprietary seed. ActionAid supports their right to choose but believes that without education and awareness programmes to balance the incentive packages and marketing propaganda of the agrochemical companies, choices may be poorly informed. Choice is inevitably reduced as powerful multinational companies increasingly take over their smaller competitors.

  Once a plant is patented and farmers buy the seeds, companies can insist that farmers purchse new seeds every year. Seeds are often sold in package with fertiliser, herbicides and pesticides. Poor farmers using the new patented varieties thereby increase their dependence on the market and lose their traditional rights to save and exchange seed and to innovate by cross breeding these seeds with other varieties.

  New patented varieties generally require high cost fertiliser and chemical inputs, which can lead to increased indebtedness. The use of high-tech seeds is also closely associated with mono-cropping which restricts and reduces agro-biodiversity while exposing farmers to higher levels of risk. Farmers growing single crops are more vulnerable to market fluctuations, diseases and environmental problems. This compromises livelihood security and may impact adversely on food security both locally and nationally.

PATENTS AND LIVELIHOODS

  Agriculture is more than a means of earning an income for the farmers in the South—it is a way of life. ActionAid believes that the right to livelihood, a basic human right, will be threatened by patents on life in food and agriculture. This is especially true for developing countries where the majority of people depend on agriculture for their livelihood.

  As patenting and monocropping destroy biodiversity there will be adverse impacts on women who are the users and preservers of biodiversity in the South and on indigenous communities who are dependent on biodiversity for their livelihoods.

  Citizens' groups are resisting IPRs in their own way. In India for example:

  The village of Pattuvam in Kerala documented its biodiversity and genetic resources in a biodiversity register and declared its genetic material free from corporate control. The legal basis of the Pttuvam action is the seventy-third constitutional amendment to the Indian Constitution which has mandated radical decentralisation of powers to village level institutions such as the panchayat and village bodies like the gram sabha (village assembly).

  (Alvares, Claude. A Village in Keral Bucks Gatt over Control over Genetic Resources. Goa Foundation.)

  Rural communities around India are organising into local level groups and challenging the WTO to take decisions on "their" biological resources. Members of Gram Sabhas in India are lodging a protest with the Director General of WTO. In a letter to Mike Moore, they ask the WTO "to immediately amend TRIPs and exclude biodiversity from your global IPR regime acknowledging our local rights to make laws and determine ownership and use patterns and to settle disputes".

  (Navdanya Trust, rfste@del6.vsnl.net.in)

Case Study: Pakistan under pressure to dilute its IPR legislation

  The US transnational (TNC) Monsanto has worked overtime to get Pakistan to dilute a proposed law that will extend protection to plant varieties under the Trade Related Property Rights (TRIPs) agreement.

  Officials in the Pakistani Ministry of Food and Agriculture say Monsanto has been sending "unsolicited suggestions" for incorporation into the Plant Breeders Rights Act, which is being drafted to meet international obligations under the TRIPs agreement.

  "Monsanto is also pulling powerful strings to influence the legislative process in its favour sending letters to government officials, holding meetings with politicians," said a ministry official, requesting not to be named.

  The TRIPs agreement requires signatories to extend protection to plant varieties either through patents of a sui generis system.

  Pakistan has opted for the latter of a locally devised system in order to provide maximum protection to farmers against TNCs that are now eyeing the lucrative seed markets in developing countries.

  A government commitee with representatives from the Ministries of Commerce, Agriculture and Industries is working on a draft Plant Breeders Act 1999. The proposed law will also bind the owner of the genetically modified or new transgenic variety to pay compensation for hazards and damages, if caused by the use and handling of the transgenic variety.

  In a letter to the chief of the government's Seed Certification Department dated August 16, Monsanto's Managing Director, Dr A Rehman Khan, asked for the deletion of this clause saying it will be unacceptable to the TNC. "In the presence of this clause, anybody from public can sue us and ask for compensation for hazards and damages which are kind of open ended risks (SIC). Hence, take out this clause," said Khan. "Again I repeat that this clause is not acceptable to any multinational company and it should not be different than any non-transgenic variety," Khan said.

  Source: Rizvi, Muddassir. Monsanto fiddles with plant protection act. IPS Bulletin, Islamabad. 31 August 1999 (www.ips.org)

PATENTS AND GENETICALLY MODIFIED ORGANISMS

  Patenting is closely linked with genetic engineering and the trend for large transnational agrochemical industries to control the industrialisation and intensification of agriculture.

  Almost half of all patent applications on GM crops are held by 14 transnational corporations. They have targeted the main food crops: rice, maize, wheat, sorghum, soya, corn, potatoes. They are patenting the planet's best DNA and are mapping entire sequences of crops with a view to patenting the most useful bits. One American Company, Celera Genomics, says it will try to map the entire rice genome.

THE CONSOLIDATION OF THE SEED INDUSTRY

  The last decade has seen a major consolidation of the global seed and agri-chemical business. The top five agro-biotech companies—the so-called "Gene Giants"—DuPont, Monsanto, AstraZeneca, Novartis and Aventis hold 60 per cent of the world pesticide market, a quarter of the seed market and virtually 100 per cent of the GM crop market.

  The top 10 seed companies control approximately 33 per cent of the $23 billion seed trade worldwide.

  Without patents, the GM industry would not see a return on their investments into developing GM crops. In the US, Monsanto has sent investigators to check that farmers are not illegally planting seed, and has so far opened 475 legal cases against farmers for doing so. But the GM companies know that policing their patents in the South would be very difficult.

  While Monsanto has now rejected the concept of the sterile, "Terminator" seed, this was only the first of a raft of GM techniques being developed by all GM companies, including Monsanto. Alternative technologies include Gene Use Restriction Technologies, or GURTS, that engineer seeds in various ways. For example, chemicals are used to "switch" on GM characteristics such as herbicide resistance. Another manipulation is to use a chemical to "switch" on plant flowering.

  Some of these GURTS have been dubbed "junkie seeds" because they depend on chemicals. But they also have the effect of tying a developing country farmer into chemical and financial dependence on a company.

  The GM industry is not designed for the types of biodiversity found on the average agricultural smallholding in the developing world, where a farmer is constantly saving seeds that are resistant to local conditions. A smallholder farmer will normally grow a number of different crops on a plot of land. Thus the biodiversity of a crop species is preserved.

  GM crops are designed for monocultural, intensive farming methods. GM can only be profitable this way. Yet for most poor farmers the diversity of their crops is their safety net: a way of spreading their bets, and ensuring that they harvest something despite natural disasters such as adverse weather conditions.

OTHER ENVIRONMENTAL EFFECTS OF GM CROPS

  There is not yet enough information known about the environmental effect of GM crops.

  The development of GM crops resistant to multiple herbicides and those which rely on chemical inputs almost guarantee an increased use of chemicals across the developing world. Farmers who have never used chemicals are forced into buyung them with their patented seed.

  Genetically modified organisms can pose environmental hazards, as cultivated crops are capable of crossing with related wild species in the same environment. GMOs might contain alergens or other harmful substances—a distinguishing characteristic of many GMOs that causes particular alarm is the presence of an antibiotic-resistance market gene.

  The excessive use of disease-or-pet-resistant crop varieties (or pesticides) always involves the danger of promoting the evolution of resistant strains of pests or pathogens.

  Given that the origins of the world's staple food crops are in the developing world, the problems of cross-pollination with other varieties and the build-up of pest resistance are both potential threats to food security.

INTERNATIONAL PATENT LAW; A HISTORY

  Patents on plant varieties in the USA have been allowed since 1930. In 1980, as modern biotechnology began to shape the development of International Property Law, the US Supreme Court ruled that a genetically-engineered, oil-eating micro-organism could be patented. In 1985, the US Patent and Trademark Office allowed genetically-engineered plants, seeds and plant tissue to be patented. The office extended this ruling to animals in 1987 by allowing a patent on a mouse genetically engineered to develop cancer. This move toward patenting life forms has more recently been mirrored in Japan and the European Union (EU).

  The European Patent Directive was passed by the European Parliament in June 1998. This Directive, which applies to all the EU countries, extended patent law to clearly cover patents on plants, humans and life forms. However, this is now under appeal by the Dutch, Italian and Norwegian governments.

  Following this change in patent law, the European Patent Office (EPO) changed its implementing regulations to the European Patent Convention (EPC) to allow for the patenting of human cells as well as transgenic plants and animals. This came into effect in September 1999, paving the way for Europe to join the US in granting patents on life forms. This change in the European Patents Convention has been done in opposition to its Article 53b[11] that exempts plant and animal varieties from patents. This is likely to lead to controversy. There have already been protests in Indian media about this change. [12]

CBD & TRIPS

  The Convention on Biodiversity (CBD), agreed at the 1992 Rio Earth Summit, calls for the conservation of biological diversity, prior informed consent from the communities/nation for using genetic resources, and the sovereign rights of states over their biological and genetic resources.

  CBD has 175 signatories compared with 134 of the WTO Trade Related Intellectual Property Rights Agreement.

  Intellectual property rights under TRIPs disregard indigenous knowledge, and contributions made by communities. IPRs have a tendency to lead to uniformity and loss of biodiversity—which is contrary to the underlying principle of the CBD.

  The objectives of CBD are based on the recognition of community rights and that of TRIPs on private monopoly rights—which is wherre the conflict lies.

OTHER INTERNATIONAL AGREEMENTS WITH RELEVANCE TO IPRS AND BIODIVERSITY

IUPGR

  The International Undertaking on Plant Genetic Resources (IU) is a non-binding intergovernmental agreement dealing with access to plant genetic resources for food and agriculture, related technologies, and the realisation of Farmers' Rights. The Commission on Genetic Resources for Food and Agriculture (CGRFA) of the FAO monitors the implementation of the International Undertaking. The IU is being revised to bring it in line with the Convention on Biological Diversity.

UPOV

  The International Union for the Protection of New Varieties of Plants (UPOV) is an intergovernmental organisation with headquarters in Geneva (Switzerland). It is based on the International Convention for the Protection of New Varieties of Plants, as revised since it signature in Paris on 2 December 1961. The objective of the Convention is the protection of new varieties of plants by an intellectual property right.

  Forty-four states had signed to UPOV as of 29 June 1999. Of these, 12 (mostly developed states) have signed on to UPOV 1991 and 30 to UPOV 1978 and two countries to UPOV 1961/1972.

  UPOV provides strong intellectual property rights for plant varieties and is geared to suit institutional breeding, which may not be appropriate for developing countries. UPOV Convention provisions have become increasingly similar to patenting law with each revision. The 1991 version strengthens plant breeders' rights and makes the ability of farmers to save seeds subject to national legislation.

MAJOR ACTORS AND THEIR POSITIONS ON TRIPS

The African Group and developing countries

  In July, a group of African countries, led by Kenya, called for a "substantive" review of Article 27.3(b). These countries are leading a developing country call for a review of TRIPs which, they say, must:

    "clarify that plants and and animals as well as microorganisms and all other living organisms and their parts cannot be patented, and that natural processes that produce plants, animals and other living organisms should also not be patentable."

  They also call for the TRIPs provisions to be harmonised with the Convention on Biodiversity and the IUPGR (International Undertaking on Plant Genetic Resources).

  An increasing number of other developing countries are supporting this position, saying that the patenting of plants through TRIPs amounts to biopiracy. They also say that there is not enough time to implement TRIPs by the deadline of January 2000.

DEVELOPED COUNTRIES

  The developed countries are afraid to open up a Pandora's box by allowing a substantive discussion on 27.3(b).

THE UNITED STATES

  The US wants any discussion on TRIPs off the WTO agenda entirely. [13] The US rejects the idea of extending implementation deadlines or renegotiating aspects of TRIPs to address the concerns of developing countries. The United States does not want any changes to Article 27.3(b) and maintains that any review should not be about "substantive issues" such as whether TRIPs should allow patents on life forms, but it should be a survey of how the article has been implemented. The US rejects the idea that there is conflict between TRIPs and the Convention on Biodiversity.

THE EUROPEAN UNION

  The EU claims that the review is not about substantive issues, but should be survey of how article 27.3(b) has been implemented. The EU is keen to see UPOV included in the TRIPs Agreement as the "effective" sui generis system. The EU does not see a conflict between TRIPs and CBD, and believes them to be mutually supportive. However, they state that CBD should invite WTO to acknowledge its provisions and give special consideration to indigenous people's rights. The EU is more open to ideas than the US and says that it is willing to consider proposals put forward by developing countries.

NORWAY

  Norway is opposed to granting patents on plants and animals.


2   (Nijar, Gurdial Singh. CBD input to TRIPs Review of life-form patents. SUNS quoted in www.twnside.org.sg/souths/twn/title/input-cn.htm). Back

3   Article 27.3 Members may also exclude from patentability

(b) plants and animals other than micro-organisms, and essential bilogical processes for the production of plants or 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. Back

4   US Department of Agriculture, Agricultural Income and Finance, Situation and Outlook Report, USDA-ERS, December 1998. Back

5   www.rafi.org. Back

6   Conquests by Patents by Devinder Sharma, Pakistan Observer, Islamabad, 22 Aug 1999. Back

7   www.itd.org/issues/india6.htm. Back

8   www.ars.usda.gov/. Back

9   C T. Taylor and A. Silberston's 1977 study in the UK, and Edwin Mansfield's study of UK industries from 1981-83 as quoted in Shiva, V. Biopiracy The Plunder of Nature and Knowledge. Research Foundation for Science, Technology and Ecology, New Delhi. 1998. Back

10   The Making of American Industrial Research, Leonard Reich, 1985. Back

11   Article 53.b of EPC states: "plant-and animal-varieties" cannot be patented. Back

12   "Since India is among the most important centres of genetic wealth with 45,000 plant species and 75,000 animal species, the move is being viewed with concern by scientists." The Hindustan Times, New Delhi, 12/8/99, reporting on the EPO's move. Agenda" Back

13   Washington Trade Daily, 5 ugust 1999 "US Wants TRIPs off Seattle Back


 
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