-----Original Message-----
From: Biotech-Mod2
Sent: 11 May 2001 11:16
To: 'biotech-room2@mailserv.fao.org'
Subject: Animals and IPRs
[A final reminder: The last day for receiving messages for the conference is Sunday 13 May...Moderator]
This is from David Steane, a consultant living in Thailand - until retirement (late 1999), I was working in Animal Genetics with FAO and earlier in the UK.
The majority of communications have dealt with plants where there is already considerable experience of IPRs - particularly of the International Union for the Protection of New Varieties of Plants (UPOV) and, more recently, patents. It is clear that UPOV attempts to provide access to material whereas patents do not. Pierre Roger's point [9 May] about a patent not being an authorisation for commercialisation is irrelevant to many players in biotechnology patents since the aim is often to stop others using the technology. Edo Lin [3 May] makes an important point that the agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) of the World Trade Organization (WTO) allows countries to decide on patenting - but Tom Saunder's point [10 April] regarding finance (or lack of) is also highly relevant.
Unfortunately, animal breeds do not appear to fit the UPOV definition requirement since sexual reproduction is the norm (so far)! The generation interval is much greater than in most plants, resulting in considerable investment (not just of cash!) by breeders over long periods to increase the frequency of genes, which can now be relatively easily identified!. "In theory", the gene cannot be patented but the test for one could be. There are of course other ploys as well.
Certainly, Glenn Ashton's point [12 April] (also Michel Ferry [e.g. 23 March...Moderator]) that IPR needs reconsidering is correct but it is likely that many developed countries will not welcome that. Nevertheless, one might consider Glenn Ashton's idea about proportionality by estimating the additional genetic change possible when using a 'gene' test in marker-assisted selection (MAS). [In his second message on 12 April, Glenn Ashton argued that "I would suggest that we work from the premise that the source of the genetic material that makes up the organism (in the case of living organisms) forms the bulk of the property (both intellectual and physical)." and "Thus the "value" of the "improvement" would have to be quantitatively assessed as a ratio or as a percentage, a proportion of the whole."....Moderator]. However, there is a further point - use of MAS in animals is predicted to reduce long-term progress - perhaps there should be a penalty for this payable to the Convention on Biological Diversity (CBD). Maybe there should be a component in the cost of granting IPR and/or patents which is payable to the CBD to use directly for conservation of genetic resources.
It has been pointed out [e.g. by Geertrui von Overwalle on 4 May...Moderator] that the CBD should offer potential solutions, but one of the major biotechnology patenting countries to date (the USA) has not ratified the CBD and is not bound by it. Surely, responsible bodies - the CBD itself and FAO (since it already holds plant stores in trust and operates the Domestic Animal Diversity Information System (DAD-IS) for farm animals)- should make positive efforts to advise all countries on the inadvisability of any genetic material being transferred to non-ratifying countries (Thailand also has not ratified to date).
Mention has been made of protecting material. I would hope that by now CBD and/or FAO legal sections would have a series of example drafts of Material Transfer Agreements which could be used between CBD ratifying countries whether for plants or animals. [In transferring germplasm designated under the agreements with FAO, the CGIAR Centres use a standard Material Transfer Agreement (MTA), the text of which was agreed with FAO. The MTAs require that recipients not claim ownership or intellectual property rights over the designated germplasm and related information, and that they bind subsequent recipients to the same conditions. More information, as well as the text of the agreed MTA can be found on the web at ftp://ext-ftp.fao.org/waicent/pub/cgrfa8/8-7-E.pdf ...Moderator]
At present, the role of IPRs for animals is limited but heavily biased - the implications are certainly dramatic and probably depend on the interpretation of patentability. From previous correspondents it is obvious that the UK and the USA take quite different views (UK preferring UPOV as biological patents could weaken the whole patent system - why has the USA moved in the other direction?). The apparently different standards used to provide patents presents even greater problems for the animal people since there is no 'UPOV' option - unless the definitions can be broadened for animals without weakening the plant system.
There must be a more independent system of defending the public good on a global scale given the increasing emphasis on 'global' scenarios. The CBD/FAO roles are surely to provide clear technical advice on all aspects (including legal/ social capital values etc) ahead of the game, rather than to have to follow events. The reason for this situation is political rather than technical and it hurts the developing countries hardest. I suspect that, in many countries, another difficulty may be that the people involved in WTO negotiations do not discuss matters in detail with the CBD negotiators from the same country. Even CBD representatives are likely to be different from the agricultural interests. There is an urgent need for countries to realise, and to prevent, the dangers from the present almost absolute segmentalisation of the different components of the resources essential to long term global survival. The United Nations (UN) is surely in the best position to provide all relevant information to governments, but which part of the UN ?.
David Steane, Thailand
desteane@chmai2.loxinfo.co.th
[To contribute to this conference, send your message to biotech-room2@mailserv.fao.org - the last day for receiving messages is Sunday 13 May. For further information on the FAO Electronic Forum on Biotechnology in Food and Agriculture see http://www.fao.org/biotech/forum.asp ]
-----Original Message-----
From: Biotech-Mod2
Sent: 11 May 2001 11:30
To: 'biotech-room2@mailserv.fao.org'
Subject: Re: Plant variety protection
I would like to respond to some remarks by Pierre Roger in his contribution of 9 May and especially to the remark that "a patent provides transparent information about scientific knowledge and by limiting patentability I fear that transparency will be lost"
In Europe, this argument is used over and over again but it is demonstrably and absolutely wrong. It is exactly the opposite. Scientists, working on something that may be patentable, will share less knowledge with colleagues in order to prevent someone else stealing the idea and patenting it. Sharing and disclosing knowledge of course does not depend on patents, on the contrary. The only legitimate reason for patents is financial return on an investment, nothing else.
Now in the field of plant breeding one could think of other systems in order to provide return on investment. In Germany and Switzerland at present there is a project where plant breeders work with grant money. The results of their breeding efforts are given out for free. Plant breeding in that view is a public, cultural good which can be publicly funded but not privatised and with no need for plant breeders rights, plant variety protection etc.
Wytze de Lange
Presently working for
XminY Solidarityfunds
Keizersgracht 132
1015 CW Amsterdam
Netherlands
tel:+31206279661
fax:+31206228229
wdl@xminy.nl
http://www.xminy.nl
[To contribute to this conference, send your message to biotech-room2@mailserv.fao.org - the last day for receiving messages is Sunday 13 May. For further information on the FAO Electronic Forum on Biotechnology in Food and Agriculture see http://www.fao.org/biotech/forum.asp ]