Conference 6: Postings March 2001

[The first message of the conference is from Robert Lettington, a Law and Policy Consultant of the International Centre of Insect Physiology and Ecology in Kenya, who also contributed actively to the first conference of this FAO Biotechnology Forum...Moderator]

A few initial comments on what I think is generally an excellent background document:

1) The nature of IPRs must be clear: They are a limited monopoly granted by individual states as a privilege in return for making an invention, or some other useful information, public. The policy reasoning is that, even though society as a whole loses a little through the monopoly, it gains more from the information.

2) It must also be clear: no study to date has established a positive correlation between Foreign Direct Investment (FDI), research and development (R&D) expenditure and the relative 'strength' of IPRs - I believe that the Centre for International Environmental Law (CIEL) has been trying to catalogue the studies done.

3) January 2000: The arch-supporter of the World Trade Organisation (WTO), the Economist, asked whether the absence of IPRs in somewhere like Burkina Faso would actually alter the investment strategies of a multinational company (MNC). Since the freedom would benefit Africans, surely the net social benefit equation breaks down here.

4) Discoveries versus Invention: This is a huge problem, particularly in developed countries. E.g. in Japan there are patent applications for methods of making curry and tacos (using such 'novel' methods as curry powder). In relation to biological material, it needs clearer iteration - to what extent can you 'invent' something that already existed?

5) Patenting in the Agricultural sector, as pioneered by the US and recently adopted by most other developed countries, breaks the old access and benefit sharing (ABS) agreement implicit in agricultural research i.e. we give you access to the raw materials for free and you provide us with the benefits of the research equally freely. Now the research must be paid for while the raw materials are meant to be free - all A and no BS. The reaction to this is the Convention on Biological Diversity (CBD) where raw materials must also be paid for. This has two problems. Firstly, most agricultural research, particularly in developing countries, doesn't have the cash and thus the system risks collapse. Secondly, the 'market forces' that control pricing of raw materials are not Adam Smith's 'invisible hand' but rather the all-too-visible hand of the users. Studies, such as the Commercial Use of Biodiversity, have been based on industry beliefs, practices and ambitions. The end result of this is to transfer capital from developing to developed countries. The asymmetry is reinforced by IPRs that inherently place value upon the research outputs and prevent the valuing of raw materials (except when the raw materials are controlled by MNCs, such as gene sequences - this is quite clearly a double standard).

6) The multiplicity of patents raises the spectre of IPRs developing their own momentum - I exist therefore I must be valuable. Golden Rice is the classic example with tens of patents and now the revelation that to receive the recommended daily intake of Vitamin A a normal person must consume 9 kg of the rice and a pregnant woman 18 kg (Guardian Weekly 15-21/02/01). Are we valuing Golden Rice just because it was more expensive and 'scientific' than other initiatives, i.e it involved more patented technologies? Furthermore, is the whole nutritional supplements issue in developing countries just being used to postpone addressing socio-economic fundamentals?

7) IPRs in agriculture are being used as a marketing tool to entrench corporate power and establish dependence in the familiar form of 'cornering a market'. E.g. a decade ago an elite line of Chinese rice was used to develop a GMO - a pro-industry non-governmental organisation (NGO) and the company involved refused to make the GMO available to the Chinese institute that provided the elite line without payment of USD 100,000. However, IPRs are not the only tool being used. Contracts combined with IPRs are widely adapted - witness the cause celebre of Percy Schmeiser in Canada. If legal instruments fail there are always Genetic Use Restriction Technologies (GURTs) that essentially constitute a regulatory system that bypasses IPRs and government authority (the companies may have publicly renounced GURTs but they are still seeking to patent related technologies all over the world).

8) Mitigation is possible in the national implementation of IPRs - strict interpretation of discovery rules is a first step and a declaration of origin requirement may help. However, there must be a serious reassessment of the IPR system as applied to agricultural sector - it is not meant to be applied to this and it is creating asymmetries that impact negatively on the most vulnerable. The Revised International Undertaking is an attempt at such a reassessment for specific cases.

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

[This is from Abdelgadir Ageeb in Canada. Participants are reminded to briefly introduce themselves in their first posting to the conference...Moderator]

The genetic blueprints of microbes, plants, and animals are engineered to improve the speed, efficiency, and productivity of crops and livestock. This fledging new technology has great benefits on one side and complex risks, dangers, and misgivings that might accompany the new technology on the other side. The transformation of global agriculture to a soil-less, efficient, abundant, and cheaper production of crops and fiber is anticipated. Also, "super animals" with enhanced traits for milk, meat, and wool production will be effectively produced in the near future. Production of novel transgenic animals is underway to serve as "chemical factories" to produce drugs, medicine, and as organ "donors" for human transplants.

There is no doubt that the developing countries will benefit from the new technology and food shortage may not be the primary concern of nations. However, there are also fears associated with the new technology revolution. Apart from human health and environmental impact concerns,

1) The giant multi-national biotechnology companies are trying to control over the future world economy. The rare genetic traits of plants and animals are the fuel and the driving force of the biotechnology revolution. The Southern Hemisphere is effectively the pivot or center of the diversified genetic resources. There is a general tendency and desire by the biotech companies to commercially enclose the global gene pool and modify it into a commodity for marketplace.

2) The biotech companies are seeking patent protection over their "inventions". The formation of the Intellectual Property Committee (IPC) by coalition of major biotech companies is not more than further planning to control the centers of genetic diversity. However, IPC makes no allowance for indigenous knowledge of native peoples in these countries. Many examples of the use of indigenous knowledge by the biotech companies can be found:

a) the rare perennial strain of maize that is resistant to leaf fungus was discovered in central Mexico. It solved the devastating effects of leaf fungus to U.S corn crop.
b) The rosy peri winkle plant was discovered in Madagascar rain forests. The plant contained a genetic trait used to treat certain kinds of cancer.
c) Thaumatin, a plant native to west Africa, contains protein the sweetest substance on earth. It is used by the native people as a sweetener for food. [Thaumatin is a natural sweetener found in the fruit of the West African plant, sweet prayer or katemfe...Moderator] d) Curare, an important surgical anesthetic and muscle relaxant, is derived from plant extract used by Amazonian Indians to stun prey.

The giant biotech companies are patenting these genetic resources and making billion of dollars profit but the countries where the genetic material is taken from have not received a penny compensation for the use of their natural resources. There is no doubt that the biotech companies are risking financial resources and years of research to bring about new valuable products and thus seeking patent protection. The same way, countries of the biologically-rich regions should protect their natural genetic resources and the indigenous knowledge of their native peoples. A sort of compensation and "share" has to be arranged and guaranteed.

The biotech companies will control the world's food and medicine in a decade or so. The differences between "invention" by the biotech companies and "pirating" of genetic resources and indigenous knowledge of native peoples are not quite clear. The darkest side of patenting of the "inventions" by the biotech companies is deprivation of the developing countries of their ability to use their natural resources. The lack of financial ability of the developing countries to purchase the biotech-invented products could jeopardize the existence of many peoples in the developing world.

Abdelgadir A. Ageeb
Quantitative Geneticist
Freelance,
Canada.
E-mail: aageeb@sympatico.ca

-----Original Message-----
From: Biotech-Mod2
Sent: Wednesday, March 21, 2001 11:50 AM
To: 'biotech-room2@mailserv.fao.org'
Subject: Re: General comments on the Background Document

My name is Saliem Fakir, and I am currently the director of the South Africa Country Office for the World Conservation union.

I don't necessarily share Robert Lettington's assertion [Point 1) in message of 20 March...Moderator] that society loses a little by the granting of patents. Changes in IPR law over the last decade or so, show that the common interest principles that used to be a strong feature of different IPR mechanisms is losing ground for a IPR system that is conveying a stronger favour for private interest.

This has led some to comment that, in general, IPRs reflect a wider societal and political issue in that the notion of common property is fast being eroded by the ethic of private property. Soon people will forget that we had common property regimes and that the only legitimate type of property is private property. Property regimes, are a reflection of larger ideological movements. This ideology manifests as the idea that to house everything under a private property, is by nature efficient, just and leads to greater equity. Not much has been invested in coming up with suitable models of common property or hybrids of these. Because the prevailing ideology discounts such notions completely, by not putting a premium on possible mechanisms that continue to preserve in one way or the other the ethic of common property.

Some may argue that Gareth Hardin's Tragedy of the Commons is the final deadly blow to the idea of common property. But, there is much to common property than Hardin's theory does not adequately represent or has had the fecundity to grapple with. We must examine the ideological imperatives as to why common property systems or patent systems that allow greater access are being undermined for more restrictive measures? In the realm of intangibles, the boundary between what is private and common is a grey area, an area which has no boundary, which makes it all the more spurious to claim that one's right over the knowledge as a private entity should take precendence over the collective. To add insult to injury, discoveries are being raised to a higher altar of protection. This essentially, amounts, to use more emotive descriptions, to a form of expropriation of collective knowledge, by private firms, or the privatization of the collective. This is even tantamount to the expropriation of nature's information, when nature is there for the benefit of entire humankind.

Corporations would like to argue that patents are a way of rewarding their investment in research and development (R and D), which is of benefit to humankind. Well, patents serve two useful outcomes: guaranteed monopoly, and raising share value. If one compares R and D cost to spending on branding then one can see that in fact what the companies are protecting is not returns for R and D, but marketing cost.

Saliem Fakir, South Africa
sfakir@icon.co.za

-----Original Message-----
From: Biotech-Mod2
Sent: Wednesday, March 21, 2001 1:49 PM
To: 'biotech-room2@mailserv.fao.org'
Subject: Animal genetic resources // Africa

This is from Clemens Wollny. I am working in the SADC (Southern Africa) region since the end of 1993, involved in the coordination of postgraduate training programmes in agriculture in SADC.

The failure of existing property rights systems in plant genetic resources (see Lesser 1998) to provide protection and benefits to local and indigenous communities is one of the more contentious issues of the CBD (Convention on Biological Diversity). [I assume the reference is to William Lesser of Cornell University, United States. Links to some of his publications can be found at http://aem.cornell.edu/faculty_profiles/whl1.html ...Moderator]. IPR protection is applicable to animal genetic material with unique characteristics or for characteristics which can be induced through technological procedures, as specified by national and international patent regulations. A financial system would be then required to assist local and 'indigenous' communities, and procedures and regulations for the actual transfer of genetic material needs to be worked out. However, I have little hope of getting such a system functioning in the developing world.

The actual separation of ownership of genetic material from ownership of knowledge is a conceptual issue, which requires further discussion. 'Indigenous' knowledge: how do we define it? It could be even argued that a policy claiming property rights - in whatever form - for Farm Animal Genetic Resources (FANGR) material appears to be of little practical benefit for the livestock owner in developing countries. At present, the bulk of the genetic material is of no known use or function and has no present market value. The Boorola gene or the Tuli breed, which are often used as an example, have most likely not generated billions of dollars of profit. [The Boorola gene is a high fertility gene in sheep ; the Tuli is a cattle breed found in Southern Africa......Moderator].

Restrictive national policies on international research of animal genetic resources and their exchange are short sighted. We had cases where genuine research was prevented. Recently, policy statements providing a framework for the use of genetic resources, intellectual property rights and biotechnology were issued by the CGIAR centres (CGIAR 1999). The value of such a statement is to ensure that important genes or gene combinations are maintained in the public domain.

The problem in the discussion on IPR is that claiming unspecific property rights for the protection of indigenous genetic resources, which cannot be enforced, would appear to be quite useless and even counterproductive to research and development. Most African countries have no infrastructure to implement legislation on IPR for FANGR. On the other hand, national policy makers must be sensitised on the optional value of FANGR. A precautionary measure (e.g. applying a safe minimum standard of maintaining the FANGR as any other natural resource) would enable policy makers to develop adequate access legislation and genetic material transfer agreement as a response to new discoveries in biotechnology in future.

Clemens B A Wollny
Animal Scientist and Technical Advisor
SACCAR (Southern Africa Centre for Agricultural Research)
Botswana and
University of Malawi, Africa
clemenswollny@malawi.net

-----Original Message-----
From: Biotech-Mod2
Sent: Wednesday, March 21, 2001 2:26 PM
To: 'biotech-room2@mailserv.fao.org'
Subject: Re: General comments on the Background Document

I am Derek Burke, the retired chair of the UK Advisory Committee on Novel Foods and Processes (1989 -1997) and an author of the Nuffield Council on Bioethics Report on 'Genetically Modified Crops: the ethical and social issues'. (to be found on the Web at www.nuffieldfoundation.org). I have followed the previous conferences and while my interests lie mainly in the European scene, I do want to correct a statement made by Robert Lettington [in point 6) of his message of 20 March...Moderator] in the first email of the series.

He makes two statements about golden rice which are not correct, and I suggest we would do well to have this sorted out at the beginning of this debate.

The first is about patents; a little while ago I shared a platform with Ingo Potrykus, the academic scientist who developed golden rice. He told me definitively that all the patent rights held by others had been donated and that the product is free of residual rights.

Secondly, the 9 kg figure for the amount that is said to be needed to supply an adequate intake of Vitamin A comes from Greenpeace and is incorrect. Potrykus has recently submitted a letter, entitled "New data on Vit.A uptake by children: Potrykus demands an answer from Greenpeace", about this to the email network run by Klaus Ammann out of Berne. (klaus.ammann@ips.unibe.ch). [Further comments on the amount of golden rice that should be consumed will not be discussed in this conference, as the focus here is IPRs...Moderator]

Professor Derek Burke
13,Pretoria Road
Cambridge CB4 1HD,
United Kingdom
Tel/Fax 01223 301159
email dcb27@cam.ac.uk

-----Original Message-----
From: Biotech-Mod2
Sent: Thursday, March 22, 2001 11:06 AM
To: 'biotech-room2@mailserv.fao.org'
Subject: Prerequisites for acceptance of IPRs in developing countries

I am Ancha Srinivasan, working as a senior researcher at the Regional Science Institute, Sapporo, Japan.

In my opinion, the negative impacts of IPRs for food and agriculture in developing countries outweigh the positive ones at present, because of inadequate mechanisms for patenting and protecting genetic resources in those countries. I give below some issues that need to be resolved in future before IPRs are widely accepted in developing countries. While some of the issues listed below may be familiar, I just wish to restate and propose what I consider appropriate.

1. There should be a clear mechanism to distinguish between discoveries and inventions. There are many instances where genetic resources from developing countries were granted patents in developed countries, often without the knowledge and consent of the owners of such resources in developing countries. A recent case reported by RAFI (Rural Advancement Fund International) refers to the US Patent No. 6,040,503, concerning the popping bean trait of Andean nuna bean, awarded to a US food processor. People in the Peruvian Andes know this crop and its popping characteristic for a long time. To avoid this type of patents, strict rules on awarding IPRs must be devised. For example, a breeder must provide sufficient evidence by declaring the breeding method and the materials used. In some cases, transgenic viruses have been patented as biopesticides even without undergoing adequate tests.

2. Appropriate cost-benefit sharing mechanisms must be devised in developed countries, especially when researchers in those countries make use of materials from developing countries. International organizations can help in encouraging and assisting people in developing countries to patent indigenous technologies of developing countries. As pointed out in Conference 1 of this Forum, patenting an invention by a researcher in a developing country sometimes costs more than the cost of his/her research.

3. The incompatibility of farmers' rights and IPRs remains to be adequately addressed. Despite all the talk in international fora, no effective system of compensation or incentives for the providers of germplasm has been developed. The elimination of the concept of ownership or property right in genetic resources is a pre-requisite to achieve this. While developed countries tend to treat farmers merely as conservators of genetic resources, developing countries feel that their farmers are indeed innovators.

4. Most people in developed countries agree that free access to indigenous germplasm in developing countries is essential to foster innovation, but they are unable to accept the principle of on-farm seed saving or swapping grain for seed, which is a common practice in developing countries. It is therefore important to develop flexible IPRs (the degree of flexibility being dependent on the contribution of a particular country/region) that guarantee the right of farmers in developing countries to continue with their traditional ways of free production and exchange of germplasm. Indeed, the private sector, especially in the developed world, is aiming at stronger global IPRs to protect their own research outputs with weak or no protection over raw materials in developing countries. This is indeed a double standard policy and it must be discouraged.

5. Most biotechnology-derived products are dependent on third-party technologies and subject to their IPRs. If the technology owners seek maximum value for each of the component technologies, the cost of acquisition can become prohibitive. This factor alone can restrict the access to, and thereby widespread use of, those products in developing countries. In such cases, a balance has to be found between cost and benefit and between monopoly and access. Deals between private companies and international organizations (e.g., between Glaxo and the Joint United Nations Programme on HIV/AIDS (UNAIDS)) to supply products at a reasonable price must be encouraged.

I will try to respond to other questions of the conference at a later date. I look forward to learning more from this conference.

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

-----Original Message-----
From: Biotech-Mod2
Sent: Friday, March 23, 2001 9:21 AM
To: 'biotech-room2@mailserv.fao.org'
Subject: Nuna bean

[Thanks to Edo Lin, who was also an active participant in Conference 1, for this message. Note that the "Lesser 1998" reference mentioned in the message of Wollny on 21 March was to Lesser W. (1998) Sustainable use of genetic resources under the Convention on Biological Diversity: Exploring access and benefit sharing issues. Wallingford, Oxon, UK and New York, USA, CAB International. 218 pp.....Moderator]

My name is Edo Lin and I am an independent consultant to the seed and biotechnology industry. I have some twenty years experience in the seed industry and have worked in both developing and developed countries.

I would like to react briefly to an issue raised by Ancha Srinivasan [in point 1 of his message of 22 March...Moderator] and in particular to his statement regarding the Nuna bean and the US patent obtained by a US company. The claims of the patent do not directly concern the Nuna bean, but the results of crossing Nuna beans with the common bean (Phaseolus vulgaris) which results in a novel bean variety which is adapted to the more temperate climates in the US. Normal Nuna beans are not suitable for growing in the US due to its long season (>200 days) and its sensitivity to day length. There are some other points too. So the idea to cross Nuna with for, instance red kidney beans, to have a bushy, uniform, adapted-to-temperate-climates, till-now-not-existing bean variety is certainly novel and the patent would be, in my opinion, defensable. [For those interested in seeing the patent application and with access to the web, see http://www.delphion.com/details?pn=US06040503__ ...Moderator]

Is there an issue on the source of the nuna beans? From the patent it is clear that the sources were from publicly available germplasm accensions which are extensively quoted in the claims.

I think that in some cases there might be a valid argument against some patents issued which concern plants or seeds collected in the wild. However, if plants or seeds are used to create novel plant varieties, such varieties must be patentable or be allowed other forms or plant breeder rights.

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

-----Original Message-----
From: Biotech-Mod2
Sent: Friday, March 23, 2001 10:06 AM
To: 'biotech-room2@mailserv.fao.org'
Subject: Re: Animal genetic resources // Africa

Sorry I didn't introduce myself clearly in the first posting. Now I do. I'm Abdelgadir A. Ageeb, I used to work for Agricultural Research Corporation (ARC), Sudan. Now I'm working as Consultant in dairy Breeding/Genetics.

This message is a reply to what Mr. Clemens B. Wollny wrote [21 March] regarding animal genetic resources in Africa.

Indigenous knowledge is simply defined as the "discoveries" by ancestors long years ago resulted from isolation, enhancement, and preservation of valuable herbs and plant crops and selection of adapted animals for their use. The indigenous knowledge related to livestock may not be as visible as that in crops and medicinal plants and herds. The rare genetic materials in livestock, apart from the Boorola gene and Tuli breed, certain breeds of dairy cattle are resistant to drought and heat stress (e.g. Kenana and Butana cattle of the Sudan); rare breeds of poultry in Africa are resistant to many fatal diseases; Zhagawa sheep (Sudan) are resistant to internal parasites; the rapid adaptive radiation of Tilapia fish in East Africa Lakes; ... and many more not yet identified (the research work going on by the International Livestock Research Institute (ILRI) in Kenya to identify the rare valuable genes in livestock in developing countries will be fruitful). These desirable traits are controlled by rare genes commonly called "green gold". Since the working unit in this biotechnology era is no longer the organism but rather the gene, this green gold could be isolated and propagated by cloning or DNA recombinant techniques and the end product soon be ready for marketplace. The country whose genetic material is being used to foster innovation should ask for a compensation, in whatever form it might take.

At present, the advancement of biotechnology in livestock research is not as fast as that in medicine and crops. But in the near future, the genetic materials of tropical livestock will effectively contribute to the biotechnology revolution. I agree with Mr. Wollny that the national policy measures on international research on animal genetic resources should not be used to restrict or prevent genuine research but rather regulate it for the benefits of both sides. But, in effect, the developing countries may not allow the biotech companies to get a free ride on the back of thousands of years of indigenous knowledge without cost.

Abdelgadir A. Ageeb
Quantitative Geneticist
Email : aageeb@sympatico.ca

[For more information on the genetic diversity of domesticated animal populations found throughout the world, FAO has recently published the 3rd edition of the World Watch List for Domestic Animal Diversity - see http://www.fao.org/WAICENT/OIS/PRESS_NE/PRESSENG/2000/pren0066.htm ...Moderator]

-----Original Message-----
From: Biotech-Mod2
Sent: Friday, March 23, 2001 10:28 AM
To: 'biotech-room2@mailserv.fao.org'
Subject: Re: Nuna bean

The debate on IPR should, only secondly, be a legal one. It should have first an ethical dimension. The genetic resources (as with many other resources) of the developing countries, have been sacked for the benefit of powerful companies that have made a lot of money from them. Besides the welfare of these companies, millions and millions of very poor farmers subsist in the worse conditions. How can we oblige the rich to return part of their benefits to the poorest? How can we oblige them to compensate their sack? How can we oblige them to contribute to reduce the scandalous situation where there is hunger in the world for millions and excess for others.

An IPR system could be an interesting contribution but, to be moral and efficient, it should not be established to give similar rights to the North and to the South: the North should compensate previous sacks and pay more to access to South intellectual property (IP); the South should benefit at a low price of the North IP. The pharmaceutical companies bringing an action against South Africa and Brazil for their cheap production of HIV and other medicines, constitutes a scandalous example of their deep lack of ethical behaviour and of the amoral and short view of the WTO rules to defend the IPR.

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

-----Original Message-----
From: Biotech-Mod2
Sent: Monday, March 26, 2001 9:06 AM
To: 'biotech-room2@mailserv.fao.org'
Subject: Re: Nuna bean

[A reminder to participants who joined the conference after 20 March and who thus might not have received all the messages (10 in total, including the one below) posted so far: To receive them, send an e-mail message to mailserv@mailserv.fao.org leaving the subject blank and enter the one-line text message as follows: send listlog/biotech-room2.mar2001 ...Moderator]

Many thanks to Edo Lin [23 March] for his views on controversial Nuna bean patents. I am not a nuna bean breeder and I do not wish that this conference should devote a lot of time on discussing a single issue but I thought it is better to inform the views from the other side.

Below is a summary I have made from the article by the Rural Advancement Foundation International (RAFI) on this case (available on the web at http://www.rafi.org/web/allnews-one.shtml?dfl=allnews.db&tfl=allnews-one-frag.ptml&operation=display&ro1=recNo&rf1=136&rt1=136&usebrs=true ) for information. The points raised here, if true, deserve attention of all.

1. Some bean breeders have argued that the patent should be rejected because the method used by the breeders was 'obvious' -- which should have excluded it from patentability. Improving a variety involves crossing the parents to bring together different traits and then selecting the progeny having the combination of desirable traits. In the case of the nuna bean, the crosses were 'obvious' to any one skilled in the art of bean breeding. While the inventors may have done painstaking breeding work, the results are not necessarily 'inventive.' Bean breeders had, in fact, already written about the nuna bean suggesting how to adapt the breed. 'The patent does exactly what we recommended in some of our publications,' wrote Dr Dan Debouck, Head of the Genetic Resources Unit at CIAT. Experts acknowledge that Ehlers and Sterner (Patent Owners) did serious breeding work on this bean, however, many people question whether or not the bean meets the criteria of a patentable invention.

2. Breach of 'Trust': The patent is particularly offensive to Andean farmers and indigenous people because it extends to crosses involving at least 33 Andean nuna varieties traditionally bred and developed over centuries in Peru, Bolivia, Ecuador and Colombia. US Patent 6,040,503 lists all 33 accessions of nuna bean held in the USDA's national germplasm collection. All of the nuna bean varieties listed in the patent were freely provided by Andean farming communities, who allowed their bean varieties to be put into the public realm in order to ensure the continued maintenance of the world's seed biodiversity. In 1994, mounting concern over public collections being privatized led the Food and Agriculture Organization of the United Nations to declare designated germplasm in CGIAR gene banks to be 'in trust,' meaning that the germplasm cannot be restricted by monopoly patents. Of the 33 nuna bean varieties listed in the patent, nine are also held in CIAT's international bean collection. All are designated in-trust accessions and all are farmers varieties collected in Peru.

3. Although CGIAR has not taken a public position on the popping bean patent, CGIAR officials expressed concern about the popping bean patent at the Global Forum on Agricultural Research in Dresden in May 2000.

4. Breeding concern: Bean breeders are concerned about the patent. Carl Jones, a graduate student in Plant Breeding and Genetics at Oregon State University, United States, who has worked extensively with Andean crops, believes that the patent is a serious threat to bean breeding. 'The patented claim is really just an attempt to patent the 'nuna' characteristic which has been developed and preserved by the Andean peoples for centuries. The claim severely limits improvements in this crop; many of these changes could be useful to the Andean peoples from which it comes.' Jim Myers, a bean breeder at Oregon State University, has been working on adapting nunas for many years. 'Technically, the patent prevents any research [in countries where the patent has been accepted] on the nunas without permission from the 'inventors.' If I make available any of the varieties I have been working on, and someone else develops a commercial use for them, there would have to be concern about possible patent infringement,' he notes.

5. Organizations opposing the patent include among others: Asociacioon Regional de Productores Ecologicos del Cusco (ARPEC); Asociacion Nacional de Productores Ecologicos (ANPE); Municipalidad Distrital de Maras; Municipalidad Provincial de Chumbivilcas; Instituto Nacional de Investigacion Agraria (INIA); Programa Nacional de Cultivos Andinos; the Peruvian Society for Environmental Law (SPDA); and the Asociacion Qechua Aymara para la Conservacion de la Naturaleza y el Desarrollo Sostenible (ANDES).

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

-----Original Message-----
From: Biotech-Mod2
Sent: Monday, March 26, 2001 5:00 PM
To: 'biotech-room2@mailserv.fao.org'
Subject: IPRs and public international agricultural research

[Thanks to Domininc Glover for his clear and thought-provoking message. Any comments ??...Moderator]

My name is Dominic Glover. I am a Research Assistant at the Institute of Development Studies, Brighton, England. I am currently working on a research project on the international governance of biotechnology, and its impact on food security in less developed countries. IPRs represent an important element of this project.

I would like to recommend to participants in this conference the abstract of a presentation delivered by Dr. Gary Toenniessen, Food Security Director for the Rockefeller Foundation, at 'BioVision 2001', The World Life Sciences Forum, in Lyon, France, in February 7-10. His topic was 'Public Sector Plant Research and the International Agricultural Research System in the Era of Biotechnology'. The abstract and slides can be accessed via the BioVision website at: http://www.biovision.org/muscript/frameset.html?1 [Note: password required.]

Dr. Toenniessen's presentation is a clear, concise, and highly cogent analysis of the effect of IPRs in restricting the flow of knowledge and germplasm between the public and private agricultural research sectors. He explains how this situation has come about and proposes quite an innovative, commercially-based solution to the problem.

Dr. Toenniessen points out that each incremental improvement in a crop is based on previous generations of the plant. Patenting each of these improvements means that successive layers of IPRs 'accumulate' in the plant material so that germplasm is often 'highly IP encumbered'. Consequently the flow of knowledge and plant material between the public ('public-good') and private ('for-profit') sectors is being restricted. This is a particular disadvantage to poor farmers in less developed countries, who previously benefited from the free flow of knowledge and planting material that helped to drive the Green Revolution. This problem even applies when research is carried out in publicly funded institutions in the North, because increasingly the research outputs are patented and licensed to the private sector to be exploited commercially.

In Dr. Toenniessen's view, IPRs are to be expected when commercial organisations are involved. Unfortunately, agricultural-research institutions in the public sector generally lack the necessary legal expertise to manage IPRs. Therefore, Dr. Toenniessen believes that the challenge is, how to facilitate the licensing of useful technology for the benefit of the public agricultural research system and poor countries. He proposes that public institutions should 'pool' their IPRs in a 'professionally-administered IP portfolio designated to serve poor farmers'. This would provide what he referred to at BioVision as 'an entity', which would be capable of negotiating professionally with the corporations' lawyers, and trusted to handle commercially-sensitive IP. Dr. Toenniessen argues that this could 'help reinvigorate the international agricultural research systems by re-establishing the flow of advanced scientific knowledge and research materials to and through the system.'

I think that some prior questions need to be addressed, particularly the question of whether patents are appropriate and efficient instruments for promoting innovation, rewarding invention, and promoting the sharing of knowledge and sound scientific practice. However, if you accept that the machinery of patents, licensing etc. is a fact of life today, Dr. Toenniessen's proposal seems to me to be an original and pragmatic one, which might help to secure some of the potential benefits of biotechnology for poor countries. However, I am not aware of any practical initiatives to implement anything like it, and as a political economist I am not sure that the commercial incentive or the political will exist to create such a system. I would be interested to hear the views of other participants in this conference.

Dominic Glover LL.B. MA
Institute of Development Studies,
University of Sussex,
Brighton BN1 9RE, UK
Email: D.Glover@ids.ac.uk

-----Original Message-----
From: Biotech-Mod2
Sent: Tuesday, March 27, 2001 8:41 AM
To: 'biotech-room2@mailserv.fao.org'
Subject: Re: IPRs and public international agricultural research

[Thanks to Edo Lin for his comments below on Dominic Glover's message. In Section 3 of the Background Document, we highlighted 6 areas that should be considered during the conference. The first one was "What are the impacts of IPRs (positive or negative) for food and agriculture in developing countries" and many of the messages posted in the first week of this conference have considered this area, with the majority emphasising that IPRs have negative impacts for farmers and agricultural research in developing countries. The fifth one was "If some of the impacts or consequences are negative for developing countries, how can they be avoided or alleviated", so this current discussion by Dominic Glover and Edo Lin is very relevant to the conference.......Moderator]

Thanks to Dominic Glover for his contribution [26 March] and the sharing of the ideas of Dr. Gary Toenniessen.

I agree with his assertion that patents have become a reality of life and that they often can hinder the flow of knowledge and material. This hindrance however plays on all levels, and does not only impact developing countries or public research institutes but also plays between commercial entreprises where often promising research has to be abandoned because there is not sufficient "freedom to operate" under a patent held by a competitor. This can be a patent on the essential "tools of the trade", like the particle gun or the 35S promotor, or it can be a tiny piece in a plant metabolic pathway that was patented by somebody else.

I think that therefore, the suggestion of a clearing house for essential technologies, is something to which also the private industry could be open.

I would suggest that there is a role for the Worldbank or the International Finance Corporation (IFC) to take on the role of honest broker.

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

-----Original Message-----
From: Biotech-Mod2
Sent: Tuesday, March 27, 2001 12:15 PM
To: 'biotech-room2@mailserv.fao.org'
Subject: Re: IPRs and public international agricultural research

I can think of three examples to secure some of the potential benefits of biotechnology for developing countries. I am sure other participants can add more to this list.

1. Encouraging participatory plant breeding (PPB) programs with biotech varieties in developing countries - Examples of PPB include rice in Vietnam, the Ivory Coast, Nepal and India; pigeon pea and pearl millet in Kenya and India; beans in Rwanda, Colombia and Brazil. Such efforts could be extended to biotech products as well. Farmers usually grow the early variable generations of varieties and select the best plants amongst them on their own fields. [Participatory Plant Breeding (PPB) denotes a range of activities which seek closer user involvement in crop development and/or seed supply...Moderator].

2. Assessment of the value of genetic resources from various countries: A fixed percentage of the total value of a crop in a developed country can be allocated towards developing a strong IPR regime in, and benefit-sharing with, developing countries. The percentage could be based on the germplasm contributed by developing countries, the approximate number of years involved in developing those materials either individually or collectively, etc.

3. Direct partnership between companies: Here, a private company in a developed country usually enters into a joint venture in a developing country and transfers biotech products directly, instead of making a licensing agreement. Through this relationship, the developed country partner can benefit from lower costs of research and production in developing country in exchange for its technology transfer.

It is reasonable to conclude that while the legal instruments for recognizing the intellectual property contributions of communities, especially in developing countries, are yet to evolve, there is now a fast-track approach to recognize and reward the innovations of individuals, especially in developed countries. International organizations and developed countries have, therefore, a joint responsibility to devise the former in consultation with developing countries, and to minimize the ambiguity of application of the WTO agreement on Trade Related Aspects of Intellectual Property Matters (TRIPS) in developing countries through developing a system with ethics and equity provisions to protect plant varieties and farmers' rights.

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

-----Original Message-----
From: Biotech-Mod2
Sent: 28 March 2001 14:21
To: 'biotech-room2@mailserv.fao.org'
Subject: Reforming patent law

In my previous contribution to the conference (26 March) I suggested that we should consider whether patents are appropriate and efficient instruments for promoting innovation, rewarding invention, and promoting the sharing of knowledge and sound scientific practice. In this connection, I would like to recommend to the conference an article by Prof. John H. Barton of Stanford, entitled 'Intellectual Property Rights: Reforming the Patent System', 2000, Science, vol.287, March 17, pp. 1933-1934. [The article is available on Ag BioTech InfoNet at http://www.biotech-info.net/reforming.html ....Moderator]

(Prof. Barton also participated in the Rockefeller-funded Bellagio meeting on 'Intellectual Property and Developing World Biotechnology', 27-30 March 2000).

In his Science paper, Prof. Barton identifies three problems caused by inefficiencies in the application of current US patent law. This is an important consideration for the rest of the world as well, bearing in mind the importance of the US market and the influence of the US in globalising patent laws through instruments like the WTO's Trade Related Aspects of Intellectual Property Matters (TRIPs) agreement.

The three problems Barton identifies are:

1) the strategy, mainly by firms, of building up broad 'defensive patent portfolios', often involving quite minor or trivial 'inventions', with the associated enormous economic costs involved in registering and litigating patents;
2) the tendency for patents to complicate and deter useful and desirable follow-on research, which can occur when patents are granted on 'broadly useful information and technology' or 'fundamental research processes';
3) the existence of 'invalid patents' - essentially, patents which should not have been issued because the alleged invention falls short of the legal requirements.

He proposes the following solution in each case:

1) raising the standards for patentability of an invention;
2) expanding the terms of 'freedom of use' for research; or instituting a system of 'reasonable royalty compulsory licensing' for research purposes;
3) improve the quality of review of patent applications and make it easier to mount a legal challenge against invalid patents.

It seems to me that these proposals would help to improve the patent system so that it provided a better balance between the private interests of innovators, and the public interest in education and research, quality science, and further innovation (in both the public and private sectors).

With regard to the South in particular, these reforms (if applied internationally) might help to address some of the issues raised in the Background Document, and in some of the contributions, to this conference, concerning the patenting of genetic resources which are native to developing countries, indigenous knowledge, the requirement of 'novelty' in patent law, 'biopiracy' and the neem tree, etc....

Dominic Glover
Institute of Development Studies, University of Sussex, Brighton BN1 9RE, UK
Email: D.Glover@ids.ac.uk

-----Original Message-----
From: Biotech-Mod2
Sent: 28 March 2001 17:05
To: 'biotech-room2@mailserv.fao.org'
Subject: How practical are IPRs in Least Developing Countries (LDCs)

This is from Willy Valdivia Granda. Department of Plant Sciences, North Dakota State University. Fargo, ND. USA

Transgenic plants should be considered as an additional option for increasing the sustainability of larger number of poor farmers based on their specific needs, and their use should be promoted with the integration of numerous agricultural practices.

However, in many cases, transgenic technology may become unsuitable for poor farmers if it does not concentrate on their needs and if it requires unreachable management practices or dependence on transnational corporations. Regarding IPRs, leading economies have applied different standards for IPRs regarding genetic resources and transgenic plants. While the first [genetic resources] are considered resources of common property, the second are private property, subject to law regulations and penalties. IPRs have created monopolistic tendancies among biotechnology corporations and widened the gap between developed and developing countries. For example, developed countries hold 97% of patents worldwide, and more than 80% of gene transfer patents granted in developing countries belong to individuals or corporations based in developed countries. The top five biotechnology firms control more than 95% of gene transfer patents (Sagar et al., 2000). [A full reference for this article would be appreciated...Moderator]

In developing countries, the need of the smallholder farmers are unlikely to attract private funds. Attemps to apply IPRs to indigenous communities are impractical in many cases because many poor farmers do not share the goals of transnationals including the generation of revenues from agriculture. However, most corporations will not invest in or transfer technology to countries that do not have an intellectual property infrastructure. They are increasingly insisting on an equivalent infrastructure and intellectual property regime for developing countries. Therefore, it is legitimate to question whether a portion of the potential benefits of transgenic plants in developing countries may be lost because companies controlling the technology judge that crops impacting most poorer farmers are not compatible with their economic interests. Unless seeds for crops including rice, potato, cassava, cowpea, millet are provided free or at nominal cost, the potential benefits of plant biotechnology are unlikely to be realized.

Willy Valdivia Granda
Plant Sciences Dept
North Dakota State University

-----Original Message-----
From: Biotech-Mod2
Sent: 29 March 2001 15:17
To: 'biotech-room2@mailserv.fao.org'
Subject: Re: How practical are IPRs in Least Developing Countries (LDCs)

[The full reference for Sagar et al. (2000) mentioned in the message of Willy Valdivia Granda on 28 March is Sagar, A.; Daemmrich, A; Ashiya, M. 2000. The tragedy of the commoners: Biotechnology and its publics. Nature Biotechnology 18:2-4.....Moderator]

I have just been reading an interesting article entitled: "Can Patents Deter Innovation? The Anticommons in Biomedical Research", which can be found on the online version of Science Magazine (http://www.sciencemag.org). [The full reference is Michael A. Heller and Rebecca S. Eisenberg, Science 1998 May 1; 280: 698-701 and it can be accessed by going onto the website mentioned and searching on the author Heller...Moderator].

The authors Heller, and Eisenberg make some valid points. They argue that the reverse of Garett Hardin's Tragedy of the commons is beginning to emerge. [This refers to the article by Garrett Hardin, 1968. Tragedy of the Commons. Science 162: 1243-1248. In the Tragedy of the Commons, Hardin attributes environmental degradation to the persistence of common property regimes in an age of scarcity....Moderator]. In the case of the commons, where too many owners have the danger of overusing a resource, the opposite is likely to happen in the case of the anticommons. In the anticommons, where numerous owners of a resource have the right to exclude others, a resource becomes underused. The transaction cost of engaging different owners becomes a major constraint to furthering any form of new innovation. At each step of negotiating use rights, different owners will have to rewarded. Some may even refuse to grant use of a license. Especially, if different sources of information, like gene sequences are essential to develop a product then the situation becomes extremely complex. They argue: " Such a proliferation of claims presents a daunting bargaining challenge. Unable to procure a complete set of licenses, firms choose between diverting resources to less promising projects with fewer licensing obstacles or proceeding to animal and then clinical testing on the basis of incomplete information."

These patents, especially, on gene sequence information, where no definitive function or product is known as yet, has also led to erroneous over-valuation of these patents. Something akin to what we have seen with artificially inflated share prices for dot.com companies, based on expected value of these companies rather than the actual value. This has probably led to increase in price for license use. The sense that one gets from reading such an article is that the development of an anticommons regime can lead to the stifling of further innovation, contrary to what is being professed by patent holders as being an incentive, reward and stimulus for further innovation.

Saliem Fakir, South Africa
sfakir@icon.co.za

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