Forum Conf 1 (biotech and crop sector)

Robert Lettington (ICIPE, Kenya) [18 April] has suggested that developing countries should develop their own parallel patent systems that ensure that holders of patents using traditional cultivars recognize and compensate the developers of the cultivars. These systems must also address issues of community rights and stability of the innovation and consider all sectors so that the needs of research centres, companies and rural populations are taken into account.

The WTO Council on TRIPs met last October to review Trade Related Intellectual Property Rights (TRIPs). Article 27.3(b) of TRIPs calls for WTO Members to protect intellectual property over plant varieties either by patent or by an effective sui generis system or by a combination of both. Developing countries are under pressure to adopt the International Convention for the Protection of New Varieties of Plants (UPOV 1991) as the mechanism to fulfil their 27.3(b) obligations.

At the meeting, both the U.S. and India submitted papers on Article 27.3(b). The U.S. recommended a patent-based model, arguing that an effective intellectual property protection system has been beneficial in stimulating research and development (A UN study last year has however found that there is no evidence for this). The U.S. warned that any sui generis model for plant variety protection not modelled on UPOV-1991 would need to be looked at on a case-by-case basis.

India analysed the problems associated with handling intellectual property in traditional knowledge in India due to its strong oral tradition, as opposed to the developed countries' text-based tradition. India advised developing countries to wait before implementing a sui generis systems, as the only model offered so far was that of the developed countries. India's position was supported by many of the developing countries.

The EU argued that there is no conflict between TRIPs and Members' commitments under the UN Convention on Biodiversity (CBD). The CBD obliges its signatories (U.S. is a non-signatory) to respect, preserve, and maintain knowledge, innovations and practices of indigenous and local communities. The EU disagreed with India that traditional knowledge was within the scope of Article 27.3(b), and pointed out that the World Intellectual Property Organisation (WIPO) was currently working on this area.

This position was supported by developed countries, including Switzerland, Canada, Japan, Australia, and Korea.

India has now developed its own sui generis system which protects its farmers' rights, the rights of holders of indigenous knowledge and has recognized extant varieties. In the light of the position taken by developed countries, it is likely that the Indian sui generis system will be opposed by developing [maybe this should be developed...Moderator] countries.

If a large developing country like India cannot withstand pressure from developed countries, there is no doubt that most small developing countries would be coerced into accepting UPOV-1991. Next week, UPOV-1991 will in fact be being "marketed" in Sri Lanka by UPOV assisted by our Intellectual Property Office and Department of Agriculture probably to ensure that we do not try to develop an alternative sui generis system.

So, while Robert Lettington's strategy is no doubt what is best for developing countries, it would appear this is a luxury not permitted to developing countries by the developed world.

Dr. Vijaya Kumar
Senior Professor and Head
Department of Chemistry,
University of Peradeniya,
Peradeniya, SRI LANKA
Phone: +94-8-389129, +94-77-801184
Fax: +94-8-389939
e-mail; vkumar@mail.ac.lk

[To contribute to this conference, send your message to biotech-room1@mailserv.fao.org For further information on the Electronic Forum on Biotechnology in Food and Agriculture see http://www.fao.org/biotech/forum.asp ]

-----Original Message-----
From: Biotech-Mod1
Sent: Tuesday, April 25, 2000 11:30 AM
To: 'biotech-room1@mailserv.fao.org'
Subject: Re: IPR for developing countries

MY RESPONSE (IN CAPITALS) TO DR KUMAR'S COMMENTS, 18TH APRIL

> Prof. Laing [17 April] seems to see no difference between patents for life forms and patents (or copyrights) for software programmes.
IN TERMS OF INTELLECTUAL PROPERTY RIGHTS, NO, THERE IS NO REAL DIFFERENCE BETWEEN PLANT BREEDERS AND SOFTWARE PROGRAMMERS IN TERMS OF THEIR NEED FOR A RETURN ON INVESTMENT.

> In the case of a seed company, the new seed is developed from existing germ plasm, often from developing countries, and may involve a very small modification, or sometimes none at all, (like the yellow bean from Mexico patented in the US). What the patenting process does is to convert the "common heritage of mankind" into private property of an individual or a company for 20 years.

THE COMMON HERITAGE OF MANKIND IS NOT JUST LIFE FORMS. TODAY'S SCIENCE IS BASED ON THE BUILDING BLOCKS OF EARLIER SCIENCE. THE ARCHITECTURE AND ENGINEERING OF TODAY IS ONLY POSSIBLE BECAUSE OF PAST DEVELOPMENTS AND INNOVATION. HOW MUCH OF THAT IS PATENTED ? ANY INNOVATION, OR MODIFICATION, EVEN IF IT IS SMALL, DESERVES TO BE RECOGNIZED AND REWARDED. WHO DECIDES HOW BIG OR HOW SMALL AND INNOVATION IS BEFORE IT IS RECOGNIZED ?

> Certainly those that invest in developing a product or technology should get paid for their creativity, capital risk-taking and simple hard work.

AND IF WE DO NOT REWARD IT, THEN WE WILL KILL INNOVATION. THIS PROCESS IS THE BASIS OF THE WORLD'S ECONOMY TODAY.

>But what about the creativity and the very hard work that several poor farmers put into creating the base material which is often stolen or bought for a fistful of dollars. Or are the farmers of developing countries not entitled to any payment for their creativity and hard work ?

ABSOLUTELY. BUT THE ANSWER IS NOT TO TRY AND STOP CAPITALISM IN ITS TRACKS, BUT TO TACKLE AN UNFAIR SYSTEM AND MAKE THE CHANGES SO THAT ROYALTIES ARE PAID IN THESE CASES. THE DIFFICULTY IS TO ENSURE THAT THE DESERVING PEOPLE ACTUALLY BENEFIT.

> There are several developing country scientists working in state research institutes producing new varieties of crop plants every year. In Sri Lanka alone, tens of new varieties of rice and new tea clones are produced by the research institutes and released to the farmers and planters of the country. They are not patented simply because effective protection of any one variety in the major countries of the world costs about $ 75,000-$100,000 - far above the resources of a government institute in a developing countries. There is nothing to prevent a private company patenting one of these varieties in the West and no government institute will be able to find the funds, e.g. half a million dollars in the US, required to fight the patent.

AGREED, BUT THE QUESTION THEN, HOW CAN THIS SYSTEM OF PROMOTING INNOVATION (ESPECIALLY IN PLANT BREEDING) BE MADE MORE EQUITABLE ? THE BIG PROBLEM IS COST, WHICH IMPACTS HEAVILY ON DEVELOPING COUNTRIES WHOSE CURRENCIES ARE MUCH WEAKER THAN SAY THE US DOLLAR, MAKING THE PATENTING PROCESS AND LITIGATION INACCESSIBLE.

> So the developing countries certainly have a problem with the present patent system (and the new International Union for the Protection of New Varieties of Plants (UPOV) system which is not very different)

THE DEVELOPING COUNTRIES HAVE A NUMERICAL ADVANTAGE AT GLOBAL MEETINGS. IF A MORE FAIR PATENT SYSTEM CAN BE DEVISED, THEN THE G77 NATIONS CAN PUSH FOR IT AT GLOBAL MEETINGS. THE CHALLENGE IS NOT HOW TO DO AWAY WITH THE PATENT SYSTEM, BUT HOW TO MAKE IT FAIR AND EQUITABLE FOR ALL.

Mark D. Laing
Professor, Plant Pathology, University of Natal, South Africa
laing@micr.unp.ac.za

-----Original Message-----
From: Biotech-Mod1
Sent: Tuesday, April 25, 2000 11:35 AM
To: 'biotech-room1@mailserv.fao.org'
Subject: Re: IPR for developing countries

IN RESPONSE TO DAVID HEAF (APRIL 18TH):

> Mark D. Laing [17 April] wrote: "It [terminator technology] is no different to software companies demanding to be paid for every copy of their software. Pirate copies of computer software are illegal, so "pirate" seed should be equally illegal."

> The two examples given are very different from each other:
> 1) Seed is alive and programming it to die violates its very essence, i.e. what makes a seed a seed.

TRYING TO DEFINE THE "VERY ESSENCE" OF A SEED IS ABSURD. THIS ARGUMENT REJECTS THE THOUSANDS OF YEARS OF SELECTIVE BREEDING OF DEFECTIVE MUTANT SEEDS FOR THINGS LIKE YIELD, OIL CONTENT, AND EVEN GERMINATION, ALL WHICH VIOLATE THE SEED'S ORIGINAL "ESSENCE". WHAT ABOUT THE USE OF MALE STERILITY IN PLANT BREEDING ?

> 2) Seed self-replicates, computer software does not -- unless it is a computer virus (a computer 'disease'). And, preserving the mirror symmetry of Laing's analogy, a seed that does not germinate is a diseased seed.

MANY PLANTS DO NOT PRODUCE SEED, OR PRODUCE FEW VIABLE SEEDS, E.G., GERBERA. SEED IS JUST A TOOL OF REPRODUCTION, BOTH IN NATURE AND IN AGRICULTURE, ONE OF SEVERAL WHICH CAN BE USED TO ACHIEVE THE SAME END.

> The two examples cannot simply be lumped together. The obvious differences between them call for quite different moral arguments.

THE ARGUMENT CANNOT BE SEPARATED, BECAUSE IT IS ABOUT INTELLECTUAL PROPERTY. THE WORLD'S ECONOMY DEPENDS ON THE PRINCIPLE THAT IF PEOPLE SPEND TIME, MONEY AND RISK ON DEVELOPING A NOVEL PRODUCT OR COMMODITY, THEN THEY HAVE A RIGHT TO ECONOMIC PROTECTION OF THAT PRODUCT. IT IS THIS PRINCIPLE WHICH UNDERLIES THE PRODUCTIVITY AND CREATIVITY OF THE WORLD TODAY. THERE ARE MANY PROBLEMS WITH THIS SYSTEM, FOR EXAMPLE, THAT POOR PEOPLE CANNOT AFFORD TO CLAIM OR PROTECT THEIR INTELLECTUAL PROPERTY RIGHTS. BUT IT IS THE GLOBAL STRUCTURE WHICH IS IN PLACE, AND IT IS NOT GOING TO DISAPPEAR. SO WE NEED TO WORK WITHIN IT, REFORMING IT, AND GETTING IT TO WORK BETTER. TRYING TO DENY IT OR TO DESTROY IT IS NOT GOING TO HELP ANYONE.

THE ISSUE WHICH DAVID HEAF FAILED TO ADDRESS WAS THIS: IF ALTERNATIVE VARIETIES ARE AVAILABLE, THEN WHY DO FARMERS CHOOSE GMO VARIETIES ? AND IF THEY WANT TO GROW A GMO VARIETY, THEN THAT IS THEIR CHOICE, AND THEY MUST PAY FOR THAT VARIETY.

Mark D. Laing
Professor, Plant Pathology, University of Natal, South Africa
laing@micr.unp.ac.za

-----Original Message-----
From: Biotech-Mod1
Sent: Tuesday, April 25, 2000 11:46 AM
To: 'biotech-room1@mailserv.fao.org'
Subject: Molecular markers vs Genetic transformation

This is from Ahmed Rebai, Phd in Genetics and plant breeding, Researcher at the Centre of Biotechnology of Sfax, Tunisia. Ahmed.Rebai@cbs.rnrt.tn

I have followed with a big interest the discussions on this list since few days and read some of the emails. Here I will try to ask a simple question: what make the GMOs so attractive and why, compared to other 'risky' biotechnologies (such as radiation induced mutations), it has brought such animated discussions and public concerns?

I have been involved in research on molecular markers since 1991 with emphasis on their use in plant breeding, (including QTL mapping, marker-assisted backcrossing and selection). I am therefore convinced that with molecular markers (MM) we can do some of the things which are done by genetic transformation (GT) and even more. Take the example of resistance to fungal or bacterial plant diseases. As far as I know, there are no GMOs designed for these resistance (except some attempts with Chitinase genes or some others) because most of them are quantitative traits, i.e. governed by many genes with relatively small effect for each individual gene. These genes are bad candidates for GT as they do not confer total and durable resistance.

Some studies have shown that these genes (at least the biggest among them) can be pyramided in one variety using molecular markers giving a durably resistant cultivar. But GT is easier and faster than MM. It gives resistant varieties (to insects or viruses) in one or two years. It will take at least four years (with less efficiency) to produce them using plant genes with marker assisted or classical backcrossing. So for me the concern is that GT solves 'some' problems of agriculture more rapidly and better than do other biotechnologies, but consequently is more 'risky' than the others as it overcrosses the species barrier. This does not mean that we (in developing countries) have to refuse them in block and definetly. Some GMOs can solve some of our problems especially with our 'strategic' and 'major' crops. Thus we have to think twice before accepting or rejecting GMOs from our agriculture: the first is what are the actual risks and the second what are the benefits. The risk/benefit assessment of a GMO in my sense should be done on a case-by-case basis and not once for all!

[Thanks to Dr. Rebai for addressing in a very clear way one of the elements we wished to discuss in this conference i.e. whether some of the biotechnologies are more (or less) appropriate than others for developing countries. He compares the use of molecular markers (MM) with genetic modification of crops and points out that the use of MM may be more appropriate for disease traits, controlled by many genes, but that it may take a longer time to produce useful varieties. Are there other opinions about the comparison of MM with GT regarding appropriateness for developing countries ?.........Moderator]

-----Original Message-----
From: Biotech-Mod1
Sent: Tuesday, April 25, 2000 4:51 PM
To: 'biotech-room1@mailserv.fao.org'
Subject: Re: Molecular markers vs Genetic transformation

My name is Andrew Kiggundu a Plant Breeder/geneticist working with The National Banana Research Programme, Kawanda Agricultural Research Institute, P. O. Box 7065, Kampala Uganda.
Email: andrew@kari.go.ug (currently visiting the International Centre of Insect Physiology and Ecology, ICIPE, where my address is akiggundu@icipe.org).

As a breeder of a very difficult perennial crop, banana, I would like to thank Ahmed Rebai for taking this discussion a little back and highlight the usefulness of differentiating molecular marker assisted selection (MAS) and genetic engineering (GE) based breeding, especially in the context of developing countries.

Although I have just joined this discussion, I have read through some of the contributions and yet to read more. At the beginning it was highlighted, and rightfully so, that developing countries do not and might not in the near future be able to afford the infrastructure, required finance, and personnel for GE [e.g. Marcel Nwalozie, 23 March; Danladi Dada Kuta, 30 March ...Moderator]. In Africa and other developing countries, plant breeding has been going on for many years and has in one way or another yielded varieties that are popular in local communities. Examples can be obtained from beans, maize, sweet potato etc. However these African breeders need to utilize the new advances in plant breeding, thus MAS and genetic engineering, to improve on their methods and successes. My suggestion is that genetically modified plants (GMPs) should be restricted to breeding materials whereby they remain only at breeding centers rather than be released into the environment.

Conventional breeding with the help of MAS can then use GMPs as improved parents. In this way, repeated crossings and selection will eventually incorporate the genes of interest in a more natural manner and thus with lesser effect on the environment. For example, in banana most cultivated varieties are triploid and highly sterile. Yet a resultant variety (to be released) must retain high pathenocapy otherwise a banana with seeds is highly inedible. These features make conventional breeding in banana extremely difficult, complicated, lengthy (a crop cycle lasts about 1-2 years), and expensive. Coupled with this key resistance genes (to pests and diseases) are lacking in the cultivated varieties and must be sought in wild relatives.

Genetically engineered plants can be rapidly developed with foreign genes for resistance, diploid, and with good fertility (both female and male) to serve as breeding parents only. While Molecular marker assisted selection can help expedite the process of conventional breeding. GMP's can be developed in collaborative ventures between scientists from developed countries and developing countries and then kept at gene banks, where they can be accessed.

-----Original Message-----
From: Biotech-Mod1
Sent: Tuesday, April 25, 2000 4:53 PM
To: 'biotech-room1@mailserv.fao.org'
Subject: Re: IPR for developing countries

I believe that Dr. Kumar [25 April] has presented an excellent overview of the current state of play regarding a variety of areas in international IPR protection. Equally he rightly highlights the immense coercive pressure that is applied by developed countries when they feel that the current IPR system is threatened (and by this I mean threatened by expansion as much as by being done away with).

However, I would raise a couple of points to try to establish the idea that all is not lost. First is the fact that the only reason developed countries, and particular US business interests, made the move of taking IPRs to the WTO was because the developing countries had learnt to effectively outmanoeuvre them in fora such as the Paris and Berne Conventions. Second is recent moves by the US government and Pfizer to placate South Africa over HIV related pharmaceuticals - such moves are not made unless companies and developed countries have a real fear that they may lose control of a situation. Third is the fact that we do not have to depend on TRIPs 27(3)(b)'s sui generis regimes for a solution, we also have the alternative approach of arguing that we are simply extending the protections afforded by TRIPs according to Article I(1).

Overall I would argue that developing countries should be spending more time trying to "play the game" rather than simply railing against a situation which is a fait accompli - let's explore all the options we have and above all coordinate our approaches to these questions. If a country "as big as India" cannot stand up to the pressure then why don't we, as another contributor suggested, make sure that we have the G77, or some similar grouping, behind them and then see what the developed country reaction is.

Miracles do happen!

Robert J. L. Lettington
Law and Policy Consultant
International Centre of Insect Physiology and Ecology
P.O. Box 30772
Nairobi, Kenya.
Tel: +254 2 802501/3/9
Fax: + 254 2 860110
E-mail: rlettington@icipe.org; rjllett@hotmail.com

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