Conference 6: Postings April 2001

-----Original Message-----
From: Biotech-Mod2
Sent: 02 April 2001 10:50
To: 'biotech-room2@mailserv.fao.org'
Subject: Liability for biotech products in developing countries

A judge in a federal court in Saskatoon, Saskatchewan, yesterday ordered a Canadian farmer to pay the biotechnology giant Monsanto Co. thousands of dollars because the company's genetically engineered canola plants were found growing on his field, apparently after pollen from modified plants had blown onto his property from nearby farms. The decision was a major setback for farmers who fear they will be held liable if pollen from neighboring farms blows onto their fields, transmitting patented genes to their crops without their knowledge or consent. Dozens of similar lawsuits have been filed against farmers around the United States, but the Canadian case is the first to go to trial. A Monsanto spokeswoman in Winnipeg, Manitoba, said yesterday that the decision will help protect the IPRs of the company and of thousands of farmers who pay for its technology. (Source: Washington Post Friday, March 30, 2001; Page A03).

What are the implications of a similar judgement for farmers in developing countries ? I believe, in the worst case scenario, it would initially lead to a lot of legal fights resulting in wastage of precious financial and time resources. Ultimately, it may even lead to widespread unrest among the masses, and possibly the emergence of so-called "bio-terrorists" and vandals who will destroy trials of biotech products. It may also have a dampening effect on the development of indigenous biotechnologies appropriate to a particular crop/region/country. Access to advanced technologies will also be limited in the long run. In order to make sure this does not happen, necessary policy safeguards must be devised in the developing countries right before field introduction of biotech products in a manner consistent with development objectives and public policy concerns of each country. From a policy perspective, the adverse effects of IPRs on innovation within a country can be reduced by establishing smooth, easy, and less expensive means for licensing. The Consultative Group on International Agricultural Research (CGIAR) with its focus on the needs of the developing countries could play a significant role in such an effort.

Ms. Manjula Luthria from Georgetown University, USA, reported in 1996 that in comparison to industrial nations, patent values in a developing country (India in this case) are much lower and the rates of decay of these values substantially higher. She also found that the patent values in agriculture are the lowest among various industries considered (Source: http://www.worldbank.org/html/fpd/technet/sem-sums/MANJULA.HTM). In view of such findings, the need for acceptance of differential standards for enforcement and protection of IPRs in various countries, especially in the agriculture and food sector and at least for another 15-20 years, is vital. Simultaneously, international organizations and developed countries can assist the developing countries to upgrade their public administration of IPRs, develop the judicial systems to enforce the IPRs and improve the human capital base related to IPRs.

Ancha Srinivasan, Ph.D.
Senior Researcher, Regional Science Institute
4-13, Kita 24 Nishi 2, Kita-ku, Sapporo 001-0024 Japan
Tel:+81-11-717-6660 Fax: +81-11-757-3610
E-mail: ancha@vtt.co.jp or ancha_s@yahoo.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: 05 April 2001 08:54
To: 'biotech-room2@mailserv.fao.org'
Subject: Re: Liability for biotech products in developing countries

My name is Jan Wendt and I am currently working as an Associated Professional Officer on systems for protection of IPR and access to genetic resources at the FAO Regional Office for Latin-America and the Caribbean in Santiago, Chile.

I am following the discussion with great interest and wanted to give some comments on the message of Ancha Srinivasan posted on Monday, 02 April regarding the case of the Canadian farmer (an interesting view on that issue, comparing the farmers' and Monsantos' version could be found in: http://www.motherjones.com/news_wire/schmeiser.html).

In my point of view it is very difficult to decide who is to blame in that specific case. Very often a huge public mobilization occurs to defend a "poor farmer" against an "evil giant" and very often the opinions and reasons given by the defenders are based just on the view of one side. The possibility that the Canadian farmer cultivated on purpose Monsanto's variety (as often occurs) was not even taken into consideration.

I am not taking any sides, but I am also aware of the problems the seed companies have. Their biggest problem is (at least in Latin-America), that a lot of farmers are illegally cultivating and commercializing protected varieties, misusing the "farmers' exemption" provided by plant variety protection law in all Latin-American countries (all based on International Union for the Protection of New Varieties of Plants (UPOV) Convention of 1978 or 1991). If they don't pursue violations of their IPR they are soon going to lose control of what is happening with their new varieties and won't be able to sell them.

I find it really hard to believe that Monsanto, or any other seed company, raises a trial against a farmer just because he didn´t want to buy and cultivate their variety - as a method of pressure, so to say. Firstly, I think that the bad publicity of that case (justified or not) demages Monsanto more than they gained with a succesful trial and secondly, I believe that the seed companies would not be able to sell their products if the majority of the farmers were not convinced of the advantage in buying the products under the given conditons.

Seed companies and farmers depend on each other and therefore they should work together and respect each others rights. A good example of an alliance between the industry and farmers is the case of barley production in Uruguay: Budweiser sells the seeds of their special barley variety to farmers and buys the harvest from these farmers on a basis of a contract to brew beer. In that way it is impossible to violate IPR of the variety (there wouldn't be any market for the farmers who illegally cultivate the variety) and the "legal" farmers have a stable market to sell their products.

Jan Wendt, APO
FAO-RLC, Santiago de Chile
Desarrollo Institucional
Teléfono: (+56 2) 337 22 44
Jan.Wendt@fao.org

[Note: In this conference, we do not want to focus too much on the specific details of the Canadian court case involving Monsanto and Percy Schmeiser, but rather on the potential implications that such cases might have for farmers in developing countries....Moderator]

-----Original Message-----
From: Biotech-Mod2
Sent: 09 April 2001 08:57
To: 'biotech-room2@mailserv.fao.org'
Subject: Re: Liability for biotech products in developing countries

This is from Kevin Hollis. I am a plant physiology student at Indiana University, United States.

Regarding the Canadian court decision, if a seed corporation pursued a similar line in a developing country where they had sufficient political and economic sway they could increase their monopolization of a market niche very efficiently and basically legally. This leaves the farmer in an undesirable position and could increase the negative aspects of monoculture in such areas (fundamentally decreasing genetic diversity and hence natural resistance). While the company can accept this risk as a profitable business venture, the farmer could be severely hurt by any significant pest invasion or microbe attack (or even climate change) and would be dependent upon the seed company's benevolent nature as regards cost and supply of additional resources necessary for profitable growth of the hypothetical crop.

Education could inform the farmers in these situations and avoid damaging regulation. Programs similar to the U.S. 4-H program to interest and educate young members of developing countries about their options and the consequences of documented cases could empower them to protect themselves in such situations. [4-H is the youth education branch of the Cooperative Extension Service, a program of the United States Department of Agriculture. It is one of the largest youth organizations in the United States with more than 6.8 million participants...Moderator]

Kevin Hollis, khollis@indiana.edu

-----Original Message-----
From: Biotech-Mod2
Sent: 09 April 2001 10:09
To: 'biotech-room2@mailserv.fao.org'
Subject: Re: Liability for biotech products in developing countries

My name is Claire Cummings, from the United States. I am a lawyer and food and farming reporter with over 35 years experience in agriculture, including being a former USDA attorney. I have farmed in California and Vietnam. I published The Rice Paper while living in Vietnam and am familiar with conventional agriculture, sustainable agriculture and IPR issues. I want to make a few comments about the implications of the recent Monsanto case in Canada.

I agree it is not just about this particular farmer - Percy Schmeiser; he was caught in a larger web. Monsanto has sued hundreds of farmers - the point being intimidation and, ultimately, the level of control the company seeks to have over the food chain. Farmers are in dire straits, very few of them are eager to use GMOs but, given the chance to participate in production-based subsidized agriculture, if that what it takes to stay in business, they will take it. We cannot measure how the use of patents and genetic engineering in agriculture would work if farmers had real choices because we are not operating in the "best of all possible worlds" in farming. Industrial farmers are having the worst years of a long-term, and continuing, crisis in agriculture, one that is made even worse by these patented technologies, inputs and patent enforcement practices. Since GMOs were introduced in 1996, farmgate prices are rock bottom, subsidies are at record highs, consumer confidence is lower than ever, health and environmental costs are up - altogether, this is not a pretty picture.

Monsanto's concern is certainly not the money they won from a small farmer and not even the bad publicity. Like the contamination of the seed supply with GMOs - admitted to by other companies - their ultimate objective is, as a Canadian paper recently reported as stated by a company spokesperson, to make the presence of GMOs inevitable. The larger agenda beyond that is control of the food supply (in order to profit at each point of exchange from field to fork) through the privatization of the germplasm. It was not that long ago that the operating premise of agriculture was that farmers had a right to save seed. The real meaning of this court decision, in my opinion, is that this is no longer a safe option, given the permitted levels of contamination of patented varieties.

Like the judge in this case, to see these seeds as "belonging" to Monsanto you have to make certain assumptions. The primary assumption is that germplasm can be owned by a corporation, manipulated genetically, and restricted in its use by the owner, even after it is released into the environment on a massive scale.

Patents are being broadly applied for commercial purposes, even though there is no legal or scientific justification for such policies, and it is a misuse of the IPR system. IPR, in itself, is a very useful instrument. Protections for the innovations of farmers and development of major crops by indigenous peoples are essential. But to operate on the assumption that life forms are patentable and that expensive technologies are inevitable becomes a self-fulfilling prophecy. Call me naive but what do we lose if we concede this, and adopt the assumptions of industrial agriculture in favor of a more sustainable vision ?

There is the assumption that agricultural innovation needs private (corporate) financing and that patents are necessary to ensure such investment. That is neither a proven nor even a logical premise. However, there are reasons why governmental, academic and other interests cling to this notion, and that is that there are few other sources of funding and they do not want to return to public financing for expensive technologies, in part because it involves public accountability. At the University of California at Berkeley, the Plant and Microbial Biology Department made a deal with Novartis for $25 million that gave Novartis first rights to ALL research results at the department and put Novartis on academic committees. The Dean said they had to have the money. But they did not consider making the more difficult effort to educate the public about the need for science in the public interest and restore public financing. People just do not see that as an option, but it is.

Farmers in the third world need an edge, and sometimes inputs can provide that. But adopting the western model has no more chance of success in Southeast Asia than it does in South Dakota, United States, where it is a disaster. I am not arguing against IPR or patents or technology, but for public control over their applications and for farmer control over the fruits of their land and labor. That simply is not what we have, in any country in the world. In the west it is blatant, but the infrastructure for the same system is already in place in less developed countries. Who but large public and multilateral institutions like the FAO can have the vision for another way for the world to feed itself? Ok, maybe I am naive.

Claire Cummings, United States, ccummings@igc.org

-----Original Message-----
From: Biotech-Mod2
Sent: 09 April 2001 11:27
To: 'biotech-room2@mailserv.fao.org'
Subject: Relevant information

[While it is not the normal practice in the Biotechnology Forum conferences to re-post messages, the workshop proceedings refered to below are both relevant and timely with respect to this conference and the general conclusions (especially points 5 and 7) of the workshop may stimulate comments/discussion here in the three weeks that remain of this conference.....Moderator]

The following is from the AgBiotech list and is of particular relevance to our discussion.

Edo Lin
27, rte de Bombon
77720 Breau
France
tel & fax : +33 164397844
mobile : +33 671632666
e-mail : lin.edo@free.fr

Workshop on Intellectual Property Clearinghouse Mechanisms for Agriculture

On February 16, 2001, the University of California (UC) Berkeley's Center of Sustainable Resource Development (CSRD) and the UC Office of Technology Transfer hosted a meeting in Berkeley motivated by the perceived underdevelopment and underutilization of new agricultural technologies and the continuing concern of researchers at universities and public sector research institutions, in both the United States and developing countries, with their lack of access and their limited capacity to commercialize new technologies because of intellectual property (IP) considerations. Over 90 participants were in attendance from a variety of universities, companies, and US government agencies. A summary of the workshop proceedings for review can be downloaded at http://www.CNR.Berkeley.EDU/csrd/technology/ipcmech/ . The final schedule for the conference is also available. Additional information on the background of intellectual property clearinghouse mechanisms for agriculture is provided at http://www.CNR.Berkeley.EDU/csrd/technology/ipcmech/IPCM-background.html.
For more information, contact David Zilberman or Gregory Graff

The following are general conclusions drawn from the proceedings of the workshop:

1. Development and application of appropriate biotechnologies have potential to mitigate food security problems, improve food quality, and address environmental issues, but, as with any new technology, there are numerous drawbacks and risks, such that significantly more and better research is needed to realize the potential benefits.

2. The three main obstacles to further research, development, and application of appropriate and beneficial biotechnologies are overly restricted access to intellectual properties, consumers' lack of acceptance, and uncertain government regulation.

3. If mechanisms were implemented to reduce costs associated with transacting intellectual property rights (IPRs), the breadth and quality of applications made with currently existing technologies would increase to better serve the interests of customers and the general benefit of society.

4. Public sector and university researchers have a relative advantage in coming up with new basic technologies. Private companies are most capable in the development and introduction of products to market. Thus, the need for efficient transfer of technologies is inherent in the agricultural research community.

5. The alignment of profit incentives and R&D costs of new products (partly due to high IP transaction costs) leads to neglect of large segments of agriculture, most notably minor crops and large parts of developing world agriculture. Neither private incentives nor publicly funded mandates suffice to meet the R&D needs in these sectors.

6. IPR interactions within and between the university, the public research sector, and the commercial sector in the developed countries are plagued with transaction costs, most notably as a result of broadly or poorly defined property rights in individual patents and single products involving technologies claimed by multiple IPR holders.

7. IPR interactions involving the international agricultural research community are plagued with transaction costs resulting primarily from confusion over the proliferation of nascent IP policies in many countries, the lack of coordination of those policies, and the lack of education and experience on the part of researchers and administrators in dealing with the international dimension of patent issues.

8. IPR trading works best when it occurs between parties of similar size that are simultaneously both buyers and sellers of IPRs. Under such conditions there is less emphasis on rent-seeking behavior.

-----Original Message-----
From: Biotech-Mod2
Sent: 10 April 2001 09:20
To: 'biotech-room2@mailserv.fao.org'
Subject: Re: Liability for biotech products in developing countries

I want to react to two interesting but very debatable points in Jan Wendt's message [5 April].

1) Wendt seems to consider that the force relations between Monsanto or any other similar companies and farmers (and worse when they are poor farmers of the developing countries) are quite symmetrical and balanced. Monsanto and other have fantastic means to defend their IPR. Since when are IPR from individuals or communities of the South taken into account? In which proportion of the IP, will their rights have the chance to be recognised ? The principal responsable of an international organisation, officially created to contribute to fight against desertification, told me recently that, if he can not access by the official way the genetic resources that interest him (for his research and his country), he will find a way to get them by paying some collectors.

2) Wendt seems also to consider that the integration of farmers activity either by the up-side sector (seeds and pesticides companies) or the down-side sector (transformation and distribution), and sometimes they are controlled by the same companies, is something natural and good. We know that the ultra productivism of agriculture in western countries with all its terrible consequences (the mad cow disease is one of them) is mainly the result of the intense integration of agriculture by industry and trade. Is this kind of integration to be defended as a model for developing countries (disappearance of small non-competitive farmers who could not live with the prices offered by the industry; overuse of fertilisers and pesticides;..) ?

Michel FERRY
Directeur scientifique
Station de Recherche sur le Palmier Dattier
et les Systèmes de Production en Zones Arides
Apartado 996
03201 ELCHE
Espagne
tél: 34.965421551
fax: 34.965423706
e-mail: m.ferry@wanadoo.es

-----Original Message-----
From: Biotech-Mod2
Sent: 10 April 2001 10:40
To: 'biotech-room2@mailserv.fao.org'
Subject: Patenting and relevant business decision factors.

This is from Thomas M. Saunders, a patent attorney in the United States with over 20 years of experience and who specializes in representing biotechnology and pharmaceutical startup companies worldwide.

In the context of this conference, it might be worthwhile presenting some business considerations attendant to the patent process.

1. Patent applicants hope to profit from their inventions.

Patents exist state (country) by state. Ownership of a patent in a particular state is a negative right. It permits the owner to exclude others from practicing the invention. A patent does not act to permit the patent owner to do anything.

This monopoly is granted as an incentive to disclose to the public the manner of practicing the invention.

In a primary sense, obtaining profit from a patent requires two elements: (1) a significantly valuable market for the invention and (2) a means to enforce the patent such as a functioning legal system. "Means to enforce" also entails sufficient capital to take enforcement steps even if available. These two threshold elements are seldom both present in developing nations.

An alternative basis for seeking patent protection in a developing country is to exclude that country as an international source of infringing product. This basis is only reasonable for the largest international companies. First, engaging in patent enforcement at a distance is expensive. Second, most efforts will be for naught without having access to high level governmental officials. Generally, only large corporations have such access.

Dedicating a biotechnology patent to the public -- that is foregoing patent protection - will prevent that technology from ever being commercialized.

Virtually every technological advance requires development. Development (i) requires money and (ii) incurs risk. Any "for-profit" developing party hopes to recoup the development money with enhanced profits offered by the patent monopoly. The anticipated enhancement of profit is required to justify the risk. There are no "sure things" and every new product or process has an opportunity to fail. A developing party is unlikely to risk substantial development sums if a competitor can immediately begin providing the same product but without the development cost.

2. Patenting parties

Without regard to the country or region of origin, patent applicants seeking to profit from IPR will first assess markets (in financial terms) for the subject matter of any particular invention. For example, forestry and paper related inventions would reasonably look to Canada, Scandinavia, Japan, the US, Brazil, and perhaps Myanmar and Thailand. The decision at that point is a business decision relating the required outlay against the prospective return, the likelihood of return, and the timing of return.

It is not necessary, nor is it possible, to obtain all conceivable royalties. Using the above-example, with limited resources it may be reasonable to proceed to patent only in Canada and the US. Certainly, a royalty stream from two major markets will not be insignificant. As to the "lost" markets, the fact that some income escapes does not detract from income received. Neither does it mean that there will be no income from commerce in countries without patent protection. In those countries there may be greater price competition.

Profiting from IPR does not favor or disfavor by region. It favors and disfavors by wealth. Profiting from IPR first requires a patent applicant to have the funds to apply for a patent. Next, it requires an applicant to have funds and sales ability to license a patent application, and/or obtain a patent. Profiting also (occasionally) requires the funds to enforce a patent. Enforcement is actually a rather lesser problem. Failed patents are never copied; only the most successful are copied. In the case of successful patents, the technology itself can reasonably be expected to provide the funds for enforcement. Clearly though, the more distant one is from the major markets, the more difficult and expensive it is to find a licensee or realize profits.

3. Licensees

Licensees of patent rights will ordinarily stand in the same position as patent holders. A licensee will conclude a patent license on the assumption that the royalty payments due the patent holder will still allow the licensee to profit from the patent. To the extent that the market licensed is small or that enforcement is too expensive, too slow, or too uncertain - in the territory being licensed - a prospective licensee will be less inclined to either take a license or pay a substantial royalty. By these standards, in-licensing is less attractive in developing regions.

4. Potential Infringers

Sophisticated technologies such as the production of complex compounds derived from sophisticated intermediates, or hybrid and engineered plants and seeds are priced at a premium - with or without a patent. The increased price demanded by patent holders under these circumstances is only incrementally increased by reason of the patent. Any product, including hybrid and engineered plants and seeds, is generally priced to maximize profit. In any country, developing or developed, hybrid and engineered plants and seeds will command higher prices than non-proprietary materials only if the market finds them "better." While "better" may be based on salesmanship and perception, it is more often related to the usual factors of quality, cost, and yield. In a reality pricing model, the price premium can only be a portion of the profit advantage offered by the technology.

A patent holder demanding "too high" a price creates a market for infringers. An infringer succeeding too well at infringement invites the patent holder to enforce. However, infringement is favored in a developing country by the increased cost of enforcement by a distant patent holder seeking to limit price erosion in a small market. There is a great deal of room "under the radar." And the last and final rule of patents and patent enforcement: Being almost as good and substantially less expensive always makes money.

Thomas M. Saunders
Lorusso & Loud
440 Commercial Street
Boston, MA 02109
USA
Voice (617)227-0700
Fax (617)723-4609
tmsaunders@aol.com

-----Original Message-----
From: Biotech-Mod2
Sent: 11 April 2001 09:11
To: 'biotech-room2@mailserv.fao.org'
Subject: National-international legislation // PVP

First, I would like to thank Claire Cummings [9 April], Kevin Hollis [9 April] and Michel Ferry [10 April] for the interesting comments.

I agree very much with you that the IPR of local communities should be recognized equally to any other IPR held by seed- or biotech- companies. Since the FAO International Undertaking on Plant Genetic Resources (1983) and Convention of Biological Diversity (1992) this issue of Farmers' Rights and access to and benefit-sharing from genetic resources and traditional knowledge is considered at the international level. Recently the World Intellectual Property Organization (WIPO) formed an Intergovernmental Committee on Intellectual Property, and Genetic Resources, Traditional Knowledge and Folklore which addresses contractual agreements for access to genetic resources; legislative, administrative and policy measures to regulate access and benefit sharing; and the protection of biotechnological inventions.

On the national level, several Latin-American countries are explicitly addressing these topics in their legislation (the Andean Community, Brazil, Costa Rica etc.) but there are still difficulties in implementing them, a point in which international organizations like WIPO or FAO could and should play an important role. A first step would be the creation of a broader consciousness about the importance and the problems of protection of IPR and traditional resources among all actors involved, including private enterprises, NGOs, governments, universities and local communities.

In my opinion, education, the establishment of channels for exchange of information and the official registration of already existing (traditional) resources are the most important issues to create and implement efficient and just IPR systems. Furthermore, structures which ensure the participation of all actors involved should be established for creating/improving national systems of IPR and access to genetic resources.

Since the "impacts of IPRs for food and agriculture in developing countries" is one of the areas to be discussed in this conference, I would like to draw attention to Plant Variety Protection (PVP), an IPR system which is much more important in Latin-America than patents are. In fact there is no country in Latin-America where patents are issued for plant varieties. There are two very important points in which PVP differs from patents: first, the "Farmers' privilege", which allows farmers to save seeds for their own use and, second, the "Breeder's exemption" which allows any plant breeder to use the protected variety as a basis to develop a new one without previous consent of the owner of the original protected variety. In my point of view, the PVP is an option to prevent, or at least to hinder, the danger of monopolization of the seed market.

Jan Wendt, APO
FAO-RLC, Santiago de Chile
Desarrollo Institucional
Teléfono: (+56 2) 337 22 44
email: Jan.Wendt@fao.org

-----Original Message-----
From: Biotech-Mod2
Sent: 11 April 2001 11:54
To: 'biotech-room2@mailserv.fao.org'
Subject: Re: Relevant information

I see in the message of Edo Lin [9 April], providing the conclusions from the proceedings of a workshop held in February 2001 on Intellectual Property Clearinghouse Mechanisms for Agriculture, mainly a) a plea to get more funds for public research institutions and b) the evident facts that, first, IPRs increase the cost of new biotechnology applications, and secondly that the needs of developing world agriculture are not, or little, benefiting from the biotechnology developed in the North. But, I do not see proposals of solutions (except, indirectly, the request to increase public funds) on the failings of the IPRs system. Implicitly, it seems also that the conclusions consider as evident the need for this biotechnology for the development of agriculture in developing countries. Consequently, the question of the IPRs system constitutes for them a fundamental question - as if no applied science development to developing countries development could exist without patents.

Concerning IPRs, I think that one of the interesting solution tracks could be based on the argument used by the South Africa government to get, at a much better price, medicines to fight HIV: it is a question of life and death. I think that world hunger and food security are also a question of life and death. Of course, the private companies (as the pharmaceutical ones concerned by South Africa government decision are doing now) will employ all the means that they have, and that are considerable, to combat this. But, I think that a well-done media campaign against the evident amoral position of these companies (as the one ongoing in the case of South Africa), if a technical solution appears crucial to fight against hunger, could be effective to oblige the companies to retreat. In the scale of normal public opinion, to justify leaving people to die in order to maintain profits is not acceptable.

Of course, one of the main questions remains: is it so sure that this biotechnology is indispensable for agriculture development in the developing countries (and also in the developed countries)? More precisely, in which cases (of course I am speaking of GMOs) has it been demonstrated that they are more adapted than other techniques considering globally disadvantages, benefits and risks.

Another point that, for me, belongs to this worldwide strong tendency of the unique thought, is the consideration that public institutions can not be as effective as private ones. It means forgetting so many projects carried out with public funds and control (for Europe let me give three famous examples: Ariane, TGV, Airbus. Also, were not the varieties of the green revolution produced by public institutions ?). It is falling without resistance in the wave of liberalism. It is also thinking that public institutions could not change and be reformed. But, who, if not the public institutions, will take care of the situation of millions of poor and insolvent people? It is evident, at least according to me, that this constitutes one of the main duties and responsibilities of the public authorities. They try to leave more and more this task to NGOs, which means, between other considerations, to transform what is a public moral obligation to the eventual good will of certain persons.

All this speech is to finish with my last point. When public research laboratories working on a developing country question decide that they need to establish cooperation with private companies, there are a lot of possibilities concerning the use of the results issued from these collaborations. Public laboratories should not sell their soul to get private companies involved, to get their money and then to add scientific success and patents to their catalogue of patents. They should negotiate to conclude contracts that fit with their public obligation or deny them if they do not fit. We shall not forget that one of the main obligations of the public laboratories working on developing countries questions is to dedicate their efforts to the poorest, to fight against hunger and for food security.

-----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

-----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

-----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

-----Original Message-----
From: Biotech-Mod2
Sent: 30 April 2001 16:00
To: 'biotech-room2@mailserv.fao.org'
Subject: Universities and IPRs

Thanks to Juan Gallego-Beltran for this message - the first one in the conference since 12 April and the Easter holidays....Moderator]

My name is Juan F. Gallego-Beltran. I am a researcher in Animal Health at CORPOICA (Colombian corporation for research in agriculture and livestock), Colombia. Currently I am finishing my PhD studies at The Royal Veterinary College, University of London.

Although my experience in projects dealing with intellectual property and patents is almost non-existent, I would like to share with you a mixed bag of ideas.

I have seen, in my country, some cases of unfair and unbalanced negotiations between the north (developed countries) and the south (not developed countries). In all the cases the benefits have gone to the north and the feeling of dispossesion remained in the south. Some of these "research projects" have to do with the identification and characterization of genetic markers for disease resistance in native or criollo cattle breeds. In the cases I know, some of my colleagues have been, sometimes voluntarily sometimes not, acting just as sample collectors and couriers from the south to the North. These type of projects do not contribute to the creation of scientific development as the main, if not all, research is carried out abroad, and in most of the cases no input from "native" scientists is required or even desired.

One of the things that worries me, is the involvement of some universities (internationally well known centers of academic excellence) in this unfair trade of biological material in exchange for tokens to the "natives" - such as a few places (not even at discounted fees!!) in their postgraduate schools, or, more often, the offering of scientific exchange opportunities (scientific tourism) to the directors of institutions in the developing countries. Once the biological material is "captured", the appeal of the original owners to such research centers does not exist anymore.

This situation is worrying because the UNIVERSITY should keep its long tradition of pursuing KNOWLEDGE for the benefit of mankind, but it seems to be that nowadays knowledge is a commodity for the big universities, that is used to facilitate their trade with partners in the private sector (joint ventures!!) or to trade for themselves in their own supported biotech companies.

What future will we expect from "Doctors of Philosophy" that in their student days had as a tutor a respected and mature scientist for whom the main goal was to make as profitable as possible the results of his/her research and for whom the top achievement would have been the granting of a patent!!. Is that philosophy of science ??

Biotech companies are using universities as a middleman. This link between universities and biotech companies is an easy and simple way to bridge regulations and to obtain valuable biological material from non-developed countries without any trouble. I wonder if the universities are that naive to be unaware of the role they are playing ??.

Do you know of similar cases ??. It does not matter if you are a member of a top class university (Ivy League, Red Brick etc.), do not be embarrassed to acknowledge it (just think for yourself). To be aware is the first step to change things!!.

It must be said as well that, at the end of the day, it is also about the quality of the negotiation between south and north. In many cases the biodiversity of poor countries is dealt and negotiated by government officials (rarely scientists) that do not see beyond their personal benefit, and that do not understand, or try hard not to, that biodiversity is not a goverment's commodity but a people's property. Obviously, this situation is taken to the advantage of the other side of the business.

The points that Glenn Ashton shares [2 messages on 12 April...Moderator] in relation to the flawed concept of "legal claims to ownership of life forms" and also about the rotten IPR framework are simply brilliant!!. To add a humble thought to these: I wonder how long it will take for "non-biotech" companies to claim rights on a silly modification of the molecules of inorganic material, that will render inorganic material as properties of such companies ? How long will it take for some "clever" scientists to help more "clever" businessman to claim IPR on the water and the air by means of a "revolutionary" and patented method of decontamination. It will be a paradox to pay big companies for the decontamination of the air and the water that they have already polluted when profiting from us!!.

NOTE. Because of the protocol of this conference, the names of institutions are not disclosed.

J. F. Gallego-Beltran
(MV. MSc.) COLOMBIA
juanitoscience@yahoo.co.uk

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