-----Original Message-----
From: Biotech-Mod2
Sent: 12 April 2001 08:40
To: 'biotech-room2@mailserv.fao.org'
Subject: An impasse of ownership

This submission is from Glenn Ashton, Cape Town, South Africa, thinker on this problem of IPR's.

First, I wish to broaden the matter brought up by a few conferees, that of patents and human rights. Michel Ferry [11 April] brought up in a recent post the issue of The South African government and their fight against Big Pharma around AIDS drugs. This is only a symptom of an issue of monopoly practice. The question is: what is the lead principle that allows a claim to ownership?

The subject of patents and human rights was also recently dealt with by UN Sub-committee for the Protection and Promotion of Human rights. That committee decided that human rights had supremacy over economic rights. Although this report has not yet been approved by the UN (to my knowledge), it certainly should be.

There is a strong case to be made for the abandonment of IPRs on life forms, at least in developing nations, and possibly globally. Doubtless this call will be attacked by the north as eroding their rights of protection, that it will remove incentives to invent and produce new crops and medicines and that it will create an uneven playing field. The reality is that the playing field is already steeply tilted to the advantage of the north. We need to look outside the present limited perspective, which is proving counter-productive.

For instance, drugs to treat sleeping sickness have not been developed since the 1960's due to unprofitability in a large, paying market. Malaria is only recently been re-examined as a paying prospect, as it again threatens developed nations. There is a strong case to be made that IPRs only serve as instruments of liberal economic policy that simply entrench colonialism in a more modern economic idiom.

The Schmeiser decision in Canada, the genetic pollution of US seed stocks by Starlink, the warning by the EU Scientific Committee on Plants which informs us that the presence of GM material in seed stocks is inevitable because of unintentional contamination in the production process; all these facts point to a nominally unintentional ploy of patent holding corporations to cynically distribute patented seeds into the marketplace.

The effect of this, if the precedent of the Schmeiser case is to be taken as an indication of the direction of protection of patent rights that will be pursued by corporates, is that a case could be made in the courts to claim all seed thus created, intentionally or unintentionally. Thus, eventually all the seed in the commons could by this legal logic, become individual property. Is it not interesting that the two biggest GE crops are also among the biggest agricultural grain commodities in the world?

The assumption appears ridiculous but the present logic and legal processes that govern the use, ownership and risk apportionment of GE crops seems pretty ridiculous as presently applied. Whatever the corporations claim, their action is exploitative, greedy and undemocratic and to top it all, their interests are endorsed by a compliant global leadership. There is no single way that IPRs, the WTO agreement on Trade Related Aspects of Intellectual Property Matters (TRIPS), patent rights and their abuse present an equitable, sustainable or legitimate [path ?] for progress and food security.

What to do about this impasse of ownership? Obviously the entire intellectual property regime needs to be rethought and renegotiated. Where do we start? My thoughts on this are in a later message.

Glenn Ashton
Director
Ekogaia Foundation
Cape Town
South Africa
27-21-789-1751
ekogaia@iafrica.com
ekogaia@bigfoot.com

[To contribute to this conference, send your message to biotech-room2@mailserv.fao.org 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: 12 April 2001 08:48
To: 'biotech-room2@mailserv.fao.org'
Subject: Rethinking the IP regime

This is from Glenn Ashton, Cape Town, South Africa.

What can be done about the impasse of ownership refered to in my earlier message [12 April] ? Obviously the entire intellectual property regime needs to be rethought and renegotiated. Where do we start?

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). The added genetic component is, as we are constantly reminded by the scientists, only a tiny proportion of the whole. Thus the "value" of the "improvement" would have to be quantitatively assessed as a ratio or as a percentage, a proportion of the whole. Proportional ownership. Proportion is after all the leading principle in corporate shares so why can we not apply this to ownership of life?

This would form a practical barrier to slow the speculative gene-rush that is presently clogging up global patent offices. IPRs now serve to slow the sharing of knowledge and information and isolate it from the commons. This is contrary to the generally understood intent of the law of patents. Acknowledgement of the principle of proportional ownership could also dovetail with concepts of patent sharing and apportionment.

This is only one possibility. Criteria must always be used to ensure that a significant proportion of ownership remains with the traditional seed holders and developers. Proportions could be graphically plotted which would enable a value to be accorded to the resource according to the time its lineage has been in the commons or commercial ownership.

This would be plotted against the proportion of the improvement of the product. Again the degree of improvement must be quantifiable and not speculative. Thus an improved yield would be accorded a certain logarithmic proportion of the percentage of an axis but unproven claims would have provided practical proof of usefulness. Provision could be made for an incentive so that if the benefit is long-term to the germline as a whole increased weighting would be applied. (all graphically available if wanted!!)

This sort of system would also work well with marker assisted breeding programmes and other new tools that offer promise to aid and assist conventional breeding methods. This would force speculators to think more deeply about the costs and benefits of exploiting the life science patent game.

This scenario need not offer any disincentive to engage in research and development. Instead the most suitable adaptations could be evolved in response to market and natural demand instead of following a purely market driven model.

The Gaian Genome belongs to the global commons. Legal claim to ownership of life forms is inherently flawed. The rights to living processes are lent by circumstance to humans. That we appear to create them is neither here nor there. It definitely does not entitle the granting of exclusive rights to the most powerful, least answerable entities that the world of commerce has ever witnessed - multinational corporations. Granting ownership effectively ignores the concomitant exploitative nature of these entities. Anybody who thinks that there is ever going to be agreement on the present IPR framework is gaga. The framework is rotten.

It is economically, ethically and practically unsustainable to pursue the model of privatising the commons. The record of corporate commerce is poor. It has resulted in a protracted war against the poor and the environment that in the last 500 years rapidly becomes more imbalanced. IPRs and patents will (and do) serve to exacerbate this exploitation and global degradation. We must establish a proportional equity in the granting of rights to life forms; we can as much own the air as own life itself. To contend otherwise is the continuation of an obscenely sordid journey into feudal opression of unimaginable proportions. We can and must turn this beast around.

Glenn Ashton
Director
Ekogaia Foundation
Cape Town
South Africa
27-21-789-1751
ekogaia@iafrica.com
ekogaia@bigfoot.com

[To contribute to this conference, send your message to biotech-room2@mailserv.fao.org 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: 12 April 2001 11:34
To: 'biotech-room2@mailserv.fao.org'
Subject: Re: Relevant information

This is from Gregory Graff, a PhD candidate in Agricultural and Resource Economics at UC Berkeley, United States, and an author of the report quoted in the message of Edo Lin [9 April], giving the conclusions from a workshop held in Febraury 2001 on Intellectual Property Clearinghouse Mechanisms for Agriculture.

As pointed out by Michel Ferry [11 April], the message of 9th April did not provide any proposed solutions from the workshop concerning the failings of IPR systems, yet indeed there were many. In the report, 'recommendations' were listed seperately from 'conclusions', and these are provided here. First, however, to help make sense of those recommendations, I would like to develop some perspectives on addressing the failings of IPR systems from an economic perspective.

The failings of IPR systems (and it should be kept clear that IPR laws and the resulting IPR systems are country specific) can be separated into failings at two levels:

1. The definition of what is patentable: To clearly demarcate between what should be placed in the country's public pool of human knowledge (or genetic resources) and what can be rightfully defended within the borders of the country as a private piece of knowledge or technology (or genetic resource)

2. The mechanism to trade patent rights after the assignment of property has been made, to enable those specific users within the country, who are able to add value to society by their applications of that knowledge -and who would therefore be willing to fairly compensate the creator of that knowledge (or steward of that resource) -to efficiently obtain the permissions to use the privately-claimed knowledge (or genetic resource).

The failings of IPR systems at the first level (number 1 above) are many, as contributions to this conference have detailed [See for example, Robert Lettington, 20 March...Moderator]. Policies on the definitions of what is patentable in the realm of agricultural biotechnology, for example, differ from country to country, and within each country these policies have very much been in flux over time. Making changes in IPR policy at this level is very difficult. In the US, for example, it involves all three brances of government: 1) Congress may legislate parameters of patentability; 2) the Administration and the Patent Office (administered by the Department of Commerce) may adjust administrative rules over patent examination and granting proceedures; but ultimately it is 3) the courts that decide what is patentable and what is not. This makes enacting specific changes to the IPR system at this level, at least in the short term, a very difficult policy question.

In light of that, we intentionally turned our attention to discuss possible solutions to failures at the second level (number 2 above), the level of the transactability of intellectual property rights, at the meeting, inviting stakeholders and licensing professionals in agricultural and biological intellectual property to discuss ways to improve the exchange of IPRs, hoping that solutions at the level of exchaning rights might make up for at least some of the failures at the level of defining rights.

The following are recommendations for cooperation to be undertaken based on the conclusions of the workshop:

1. research and development (R&D) for minor crops in the US and agricultural R&D for developing countries share similar needs for a 'multilateral office of technology transfer' to perform such functions as negotiating for them collectively as an IP 'group buyer', obtaining and managing access to rights, and managing the internal exchange or pooling of their own IP. [A similar suggestion was discussed in the message of Domonic Glover, 26 March...Moderator]

2. In two kinds of cases there is a potential role for 'IP aggregators':

a. When many small parties are involved, the aggregation of their IP interests, providing quick and easy access to technology licensing markets, would reduce transaction costs.

b. When mutually interdependent patents over a common technology system are scattered over multiple parties, it would be generally beneficial to gather the relevant patents together and make them generally accessible on reasonable licensing terms, reducing the transaction costs of 'shopping around' for the pieces of that technology system and increasing the volume of out-licensing sales for the holders of those complementary technology components.

3. All R&D sectors of the agricultural economy need better information about and better access to technologies. All could be well served by mechanisms that do the following to reduce IPR-induced transaction costs:

a. Identify who has which rights to which technologies
b. Conduct objective valuations of IPRs and design compensation schemes
c. Standardize processes to obtain licenses
d. Manage flows of royalty payments
e. Enforce contracts

4. Education in practical policy and legal issues of IP should be emphasized in developing countries in order that they may know

a. When and where IPRs are a real constraint
b. How to design their own IPR policies for their own needs and circumstances
c. How to obtain favorable conditions for using existing technologies

5. Institutional arrangements, such as clearinghouse mechanisms, that modify the current effects or values of IPRs should be judged relative to their impact on the overall performance of agricultural and food systems rather than their impact on individual parties or interest groups within the system, be they consumers, farmers, inventors, or companies. This will require a fundamental degree of trust and confidence among the various parties or groups that over time each will become better off or at least no worse off as a net result of such measures.

6. Integrate IPR policies with efforts to do the following:

a. Remove international barriers to trade
b. Formulate national and international biosafety regulations (including approval and registration processes)
c. Enforce antitrust in agricultural and food systems.

Further information can be found at http://www.CNR.Berkeley.EDU/csrd/ under Technology and Innovation:

Gregory D. Graff, Ph.D. candidate,
Agricultural and Resource Economics
U.C. Berkeley
326 Giannini Hall
Berkeley, CA 94720
ggraff@are.berkeley.edu

[To contribute to this conference, send your message to biotech-room2@mailserv.fao.org For further information on the FAO Electronic Forum on Biotechnology in Food and Agriculture see http://www.fao.org/biotech/forum.asp ]