Conference 6: Postings May 2001

-----Original Message-----
From: Biotech-Mod2
Sent: 02 May 2001 10:46
To: 'biotech-room2@mailserv.fao.org'
Subject: Re: Universities and IPRs

My name is Rose Ndegwa, working for International Livestock Research Institute, Kenya.

I found Juan Gallego-Beltran on the above subject quite an interesting read [30 April]. Unfortunately, the situation described is repeated many times over in developing countries, and it gets worse by day.

The tension between 'south' and 'north' on the one hand and between universities/public research institutions and the private/commercial entities on the other can be attributed to various recent changes in the international intellectual property (IP) arena; the breadth of which is too wide to delve into here. These changes have dovetailed the trends of globalization and privatization. Recent notable changes include progressive privatization of agricultural research (formally a domain of public research institutions); expansion of 'traditional' IP protection to cover non-traditional fields like life forms; and increased disappearance of world market barriers.

There is increased harmonization (some will say a poor attempt!) of national/regional regimes governing IP protection through international legally binding treaties. The World Trade Organisation agreement on Trade Related Aspects of Intellectual Property Matters (TRIPS), which aims at harmonizing national IP regimes, sets out minimum standards of IP protection and enforcement. The Convention on Biological Diversity provides a legally binding framework for conservation, and sustainable use of biodiversity while seeking to establish benefit sharing mechanisms.

Unfortunately, these and other changes have tended to favour the 'north' more than the 'south', and the private more than public sectors. The developed countries have strong IP protection and enforcement systems. Most of the products for which IP protection is sought are developed in the north. The north obviously stands to gain from decreased trade barriers. But any manufacturer in the north wants more than protection in the 'home ground' and a more liberalized market. He wants assurance that his IP will be respected and enforced abroad... and in this regard, treaties like the TRIPS ensure predictability. The south therefore finds themselves having to change/enact national legislations to enforce IP, 99% of which is foreign. (There is an argument that strong IP protection encourages local innovation. While this may be true in the north, I strongly tend to disagree that this is the case in the south).

Regarding the private/public vs. private, strengthened IP protection plus opportunities afforded by advances in biotechnology has tended to favour private companies. Universities and other public institutions find that the formally free exchange of information (what's come to be referred to as open laboratory) is disappearing day by day. As more and more scientific findings become subject to IP protection, access to technologies that would help advance 'philosophy of science' has become more and more restricted. Some universities have resulted in devising mechanisms of working with private entities. To do this, they have had to become more 'private' in their dealings. Hence in the recent past, more and more universities have established technology transfer/IP units (or equivalents) to track down inventive activities within their campuses (what Juan Gallego-Beltran may be referring to as middlemen). As though this state of affairs is not confusing/complicated enough, the universities in the developing countries are operating in a different wavelength. They are still doing (trying to do) good ol' science, often times within unbelievable budget constraints (which to some extent may entice dons into scientific tourism etc). The universities in the south have always relied on collaboration with the north for their training needs (never mind that half the time it ended up in so called brain-drain!!)

In the end, the way I see it, you have the private sector who look at scientific information in terms of dollar value, the northern universities who are maximizing the moment by tending towards the 'private' in IP dealing (I leave it to others to say what this means for scientific progress) and the southern universities who are doing (or willing to do) science in the philosophy-of-science way but who are resource poor.

So where do we go from here? I think it is too optimistic to hope that this trend will change. The stage has been set; the possessive adjective 'my' is replacing 'our' day by day. Even if a reverse of the current state was thinkable, we cannot stand by and wait for an IP-free world. We have to make the best out of the current situation. Governments and institutions in developing countries have to invest in building the necessary IP and legal capacity. At least this would ensure that they are not ignorantly short-changed by developed countries or institutions. It is futile to fight a system that one does not understand. Most universities in the south will sign a collaborative research agreement without understanding provisions on IP contained therein, while those of the north will have a legal/IP unit to look at any agreements before signing. Governments would obviously be in a better position to understand international treaties before making a decision to sign them.

I strongly believe that this would have to be the starting point.

Rose Ndegwa
Intellectual Property Officer
International Livestock Research Institute (ILRI)
PO Box 30709, Nairobi, Kenya
Tel: 254 2 630743; Fax 254 2 631499
Email: r.ndegwa@cgiar.org
Web address: http://www.cgiar.org/ilri/
ILRI is a Future Harvest Centre
Web address: http://www.futureharvest.org/

[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: 02 May 2001 14:11
To: 'biotech-room2@mailserv.fao.org'
Subject: Plant breeders rights and their impact for developing countries

My name is Ruchi Tripathi and I work as the Food Trade Policy Officer for ActionAid in the UK. I am presenting below the key findings from a March 2000 study ActionAid commissioned on plant breeders rights (PBRs) in the UK and US for discussion http://www.actionaid.org/campaigns/pbr2.html .

ActionAid's research on plant breeders' rights highlights the following issues (www.actionaid.org):

Intellectual property rights (IPRs): Plant breeders' rights vs Patents

The European Union (EU) and UK chose to protect their plant varieties through plant breeders' rights instead of patents - primarily as a result of opposition from lobby groups representing patent lawyers, who were afraid that including plant varieties within patent law might weaken the patent system. It was thought plant breeding might not be able to meet the crucial requirements for the grant of a patent - that of novelty, invention and industrial applicability. The problems of novelty (versus prior art/biopiracy), invention (versus discovery), utility (i.e. industrial applicability) exist even today.

Do you think intellectual property rights are necessary for plant variety protection? If yes, what kind?

INVESTMENT

On the link between IPRs and investment, the study finds that older firms established before the advent of PBRs legislation have been the most active in investing in plant breeding. Moreover, private investment appears to concentrate on select crops such as soybean and wheat, suggesting that the profitability of the crop is more crucial in encouraging private investment. As such the stimulating role of PBRs is questionable. Alternatively PBRs on their own cannot account for increased private investment.

Do you agree that plant breeders' rights are needed to promote investment?

INNOVATION

The study undermines claims that PBRs have a positive impact on inventive activity. There is no clear link between increased number of new plant varieties and PBRs. The study points out that companies are constantly replacing their portfolio of varieties because it is in the breeders' interest to reduce the life-span of older varieties and continuously release new ones. Consequently, there are a number of periods when the market experiences a net withdrawal of varieties.

Do you think there is a link between PBRs and the increase in number of plant varieties found in the market place?

COMPETITION

The study failed to find evidence of greater competition or increased number of firms active in plant breeding as a result of PBRs. In fact, there is compelling evidence of seed industry consolidation, which is well supported by reports of widespread mergers and acquisitions within the industry.

-Statistical evidence on the distribution of PBR grants confirms the suspicion of a highly concentrated market. Looking at the periods 1965-74, 1975-85 and 1986-95 in the UK, five per cent of the applicants controlled between 68-89 per cent of the wheat PBR grants. The study concludes that the main beneficiaries of the PBRs system have been the older breeding firms that have subsequently consolidated within multinational companies. An ActionAid study from Brazil (2000) establishes further evidence of consolidation of the seed sector as a result of Plant Variety Protection (PVP). Similar studies on potential impact of TRIPS and PVP have been carried out by ActionAid in Nepal, Ethiopia and Uganda.

-The high level of concentration in the distribution of [PBRs] grants is reflected in market shares. One reflection of market power is seen in the changes in seed prices. The study highlights that in the UK, seed prices (aggregated for all species) increased by 34 per cent between 1985-93 - an increase second only to the increase in price of plant protection chemicals. The increase in royalty rates (a result of PBRs) has been even higher than the increase in seed prices.

Do PBRs promote competition or consolidation? What is the impact?

Ruchi Tripathi
Food Trade Policy Officer
ActionAid
Hamlyn House
MacDonald Road
London N19 5PG, UK

RTripathi@actionaid.org.uk
Ph: 0207 561 7560
Fax: 0207 561 7676
ActionAid's vision is a world without poverty in which every person can exercise their right to a life of dignity.
Registered Charity No. 274467
www.actionaid.org

-----Original Message-----
From: Biotech-Mod2
Sent: 02 May 2001 15:27
To: 'biotech-room2@mailserv.fao.org'
Subject: Private-public partnerships

This is from Sirkka Immonen. I am working at FAO in the Secretariat of the CGIAR's Technical Advisory Committee.

Continuing from what was said about universities and the private sector [Messages of Gallego-Beltran, 30 April, and Ndegwa, 2 May..Moderator]:

Private-public partnerships are encouraged for tapping the knowledge and technologies developed in the private sector for the benefit of public goods research. This is, for instance, the trend with the International Agricultural Research Centres working for food security and poverty alleviation. The question I wish to raise is about the culture that these research alliances adopt. Even if the ultimate products are international public goods, the collaboration agreements may require confidentiality and thus the researchers involved cannot share their ideas for the benefit of the greater research community - not even with their sister organisations working on similar themes. This is probably a common practise whenever private and public organisations join forces, but I doubt whether it enhances innovativeness and speeds up the research process for the benefit of the public sector. At least in cases where the public organisations have bargaining power, they should avoid strictly exclusive collaborative arrangements and retain their rights for information sharing.

Sirkka Immonen
Senior Officer (Agricultural Research)
FAO, TAC Secretariat, C-626
Viale delle Terme di Caracalla
00100 Rome, Italy
tel: (39) 06 570 54861
fax (39) 06 570 53298
E-mail: Sirkka.Immonen@fao.org

-----Original Message-----
From: Biotech-Mod2
Sent: 03 May 2001 08:54
To: 'biotech-room2@mailserv.fao.org'
Subject: Should developing countries comply with IPR regulations?

[Thanks to Chela Vasquez for this contribution. Because the Easter holidays seemed to have been responsible for the break in the conference where no messages were received from 13-29 April, the conference will be extended by a total of two weeks to cover that time period. The closing date is thus Sunday 13 May......Moderator]

I am Chela Vazquez, (originally from Ecuador), I have a doctoral degree in Enviromental Science from Ohio State University.

It has been very informative to read the various contributions to this electronic conference on the impact of IPRs in developing countries. Most participants agree on three points: 1) the lack of adequate mechanisms to protect indigenous genetic resources and knowledge, 2) the inequity (or lack of) in economic returns from biotechnological developments derived from indigenous germplasm, and 3) the negative impact of IPRs for farmers and research in developing countries. The Convention on Biological Diversity, as I understand it, is more a statement of principles towards a legal framework for the protection and use of biodiversity. However it does not provide the mechanisms to do it.

One issue raised in this conference has been the ongoing process in which powerful nations, such as the United States, intend to make patent laws universal. The tool being used is the Trade Related Aspects of Intellectual Property Matters (TRIPS) agreement, that is part of the World Trade Organization (WTO) agreements. TRIPS requires that country members (that have ratified the WTO) create a patent system that will allow companies to file patents in those countries. Without TRIPS enforcement, patents are only recognized in the country where patents are issued. Under TRIPS, a multinational company (MNC) can file patents in countries that have ratified the WTO and these countries are obliged to enforce the patent laws. Because of TRIPS, the farmer in Saskatoon, Saskatchewan, Canada was fined for having Monsanto's genetically engineered canola growing in his field [this case was first mentioned in the conference by Srinivasan, 2 April...Moderator]. Similar cases may occur in developing countries that have ratified the WTO (and/or the North American Free Trade Agreement (NAFTA) or the Free Trade Area of the America's (FTAA) in the future, in this continent) agreements.

Under the current value system, the situation is not good for developing countries because their biological diversity lacks or has little value in relation to the new developed product/s. Inequities will increase once TRIPS is ratified along with the other twenty-eight WTO agreements. It seems that it is in the interest of developing nations not to ratify the WTO until TRIPS is reviewed or eliminated from it. Reviewing TRIPS may lead to eliminating IPRs from it. Some nations have already proposed to ban all patents on life from TRIPS. Demanding the review of TRIPS should be part of a worldwide campaign that may serve to reach out and inform civil society at large. Forums like the present deserve a wider audience. Conference participants may serve civil society in their countries by sharing the ideas and the opinions expressed in this conference by means of letters to newspapers, seminars, etc.

Chela Vazquez
vazquez.3@osu.edu
The Ohio State University, United States

[To contribute to this conference, send your message to biotech-room2@mailserv.fao.org - the last day for receiving messages is Sunday 13 May. For further information on the FAO Electronic Forum on Biotechnology in Food and Agriculture see http://www.fao.org/biotech/forum.asp ]

-----Original Message-----
From: Biotech-Mod2
Sent: 03 May 2001 10:02
To: 'biotech-room2@mailserv.fao.org'
Subject: Re: Should developing countries comply with IPR regulations?

Chela Vazquez's contribution [3 May] with regard to the World Trade Organisation (WTO) agreement on Trade Related Aspects of Intellectual Property Matters (TRIPS) is a bit flawed. First, the WTO, as every one might very well know is a global international organization dealing with the rules of trade between nations. The core of the organisation is a bundle of agreements, covering goods, services and intellectual property (IP). (TRIPS is the agreement covering IP). Current membership stands at 140.

TRIPS is key in promoting harmonisation of national IPR laws, by providing minimum standards of IP protection and enforcement. Before, WTO patents were only enforceable in countries where they are protected. The TRIPS has not changed this. A patent owner can ONLY enforce his rights in countries where that protection has been sought and granted. This means that if a USA inventor seeks and obtains a patent in USA, but fails to do so in Venezuela, he cannot enforce his rights in Venezuela, even though the latter is a member of the WTO as the USA is. In fact, anyone can exploit the invention in Venezuela without infringing on the rights of the patent holder. What the TRIPS has done, however, is to ensure that Venezuela's IP regime meets a minimum standard of protection and enforcement (in this way it promotes harmonization of the national IP regimes.)

Rose Ndegwa
International Livestock Research Institute (ILRI)
PO Box 30709, Nairobi, Kenya
Tel: 254 2 630743; Fax 254 2 631499
Email: r.ndegwa@cgiar.org
Web address: http://www.cgiar.org/ilri/
ILRI is a Future Harvest Centre. Web address: http://www.futureharvest.org/

-----Original Message-----
From: Biotech-Mod2
Sent: 03 May 2001 11:21
To: 'biotech-room2@mailserv.fao.org'
Subject: TRIPS

I refer to postings by Chela Vasquez and Rose Ndegwa [both on 3 May].

Rose Ndegwa is perfectly right in her assessment of the World Trade Organisation (WTO) agreement on Trade Related Aspects of Intellectual Property Matters (TRIPS). I would further like to add that the TRIPS agreement allows governments to refuse patents for an invention if its commercial exploitation is prohibited for reasons of public order or morality. They can also exclude from patent protection, plants and animals (other than micro-organisms) and biological processes (other than microbiological processes). This includes cells and seeds.

Plant varieties must be protectable but TRIPS does not specify that this has to be under patent protection. Plant varieties may be protected under Plant Variety Protection schemes, such as the International Union for the Protection of New Varieties of Plants (UPOV).

In short, TRIPS leaves individual governments scope to define what is patentable or not when it comes to substances existing in nature. For example, Argentina, Brazil and the Andean Group have already passed laws which exclude the patentability of materials found in nature (even if isolated).

Finally, I would like to mention an excellent backgound study paper on "Access to Plant Genetic Resources and Intellectual Property Rights" by Carlos M. Correa (April, 1999)which is available on the FAO web-site. [For those with access to the web, this publication (Background Study Paper No. 8) by the Commission on Genetic Resources for Food and Agriculture can be found at ftp://ext-ftp.fao.org/waicent/pub/cgrfa8/BSP/bsp8E.pdf ...Moderator]

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: 04 May 2001 09:02
To: 'biotech-room2@mailserv.fao.org'
Subject: Re: Universities and IPR

I am a lecturer in a developing country and work in the field of Animal Breeding and Genetics.

The contribution made by J.F. Gallego-Beltran of Colombia [30 April] could have come from me or anybody else in the Universities in Nigeria. What he has described is the feeling of most of us in the third world countries about this IPR thing. In fact, one can conclude that such clever international laws are really made to continue the exploitation of the underdeveloped world.

It is hoped that this kind of forum sponsored by FAO will create more opportunity to hear from the scientists from the third word. I appreciate the work FAO is doing in this regard.

Dr. Olusanya Olutogun
Division of Animal Breeding & Genetics
Department of Animal Science
University of Ibadan
Ibadan, Nigeria
Phone:
Home (234) 2 2411929
Office (234) 2 810 1346
olutogun@steineng.net

-----Original Message-----
From: Biotech-Mod2
Sent: 04 May 2001 09:04
To: 'biotech-room2@mailserv.fao.org'
Subject: Re: Universities and IPR

I would like to applaud what J. F. Gallego-Beltran had to say [30 April] about the exploitation of the so-called developing countries. What makes his comments hit home so hard is that he comes from a different continent to where I currently operate, yet what he is saying is also true in Africa.

Brenda Wingfield
Dept. Genetics
University of Pretoria
South Africa
Phone +27 12 420 3946
Fax +27 12 420 3947
Brenda.Wingfield@fabi.up.ac.za

-----Original Message-----
From: Biotech-Mod2
Sent: 04 May 2001 10:04
To: 'biotech-room2@mailserv.fao.org'
Subject: Re: TRIPS

This is Chela Vazquez again. Thanks to Rose Ndegwa and Edo Lin [both on 3 May] for their comments.

Yes, the World Trade Organization agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) promotes a harmonization of IPR laws that allows transnational corporations also to file patents in developing nations. [Note, this is the correct meaning of the acronym TRIPS - in recent messages I have mistakingly put the word "Matters" in place of "Rights"...Moderator]. Without patent systems similar to the North, corporations may not be able to file patents in developing nations on genetically-engineered organisms. Biotechnology companies are urging "capacity building" in the Third World aimed at introducing patent systems that cover living organisms. We can guess where most of the patent holders are going to be located.

TRIPS states that plant varieties should be protected either by patents or by an effective sui generis system (sui generis is Latin for "their own kind"). However, it is feared that sui generis systems will be challenged by the United States. Under TRIPS, adherence to US patent and copyright laws seems to be considered respect for intellectual property rights.

Chela Vazquez
vazquez.3@osu.edu
The Ohio State University, United States

[Note, to give background information on TRIPS and on comments contained in this and other TRIPS-related messages posted recently, we present some material taken directly from a relevant document by IPGRI, 1999, which can be downloaded from the web by searching at http://www.ipgri.cgiar.org/system/page.asp?frame=catalogue/select.asp and which is entitled Key questions for decision-makers. Protection of plant varieties under the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights. Decision Tools, October 1999. International Plant Genetic Resources Institute, Rome, Italy.

"1.What is TRIPS?
The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) of the World Trade Organization (WTO) is Annex 1C of the Marrakech Agreement, which came into force on 1 January 1995. This international agreement is binding upon all members of the WTO and sets certain minimum standards for the implementation of intellectual property rights (IPR) at national level. Under Art. 27 of TRIPS, members of WTO are required to provide patent protection for inventions in all fields of technology, whether products or processes, provided that they are new, involve an inventive step and are capable of industrial application. However, Article 27.3(b) of TRIPS allows for certain exclusions from patent protection and states: "Parties may also exclude from patentability: (b) plants and animals other than micro-organisms, and essentially biological processes for the production of plants or animals other than non-biological and microbiological processes. However, Members shall provide for the protection of plant varieties either by patents or by an effective sui generis system or by a combination thereof. The provisions of this subparagraph shall be reviewed four years after the date of entry into force of the WTO Agreement."

2.What is a sui generis system?
The Latin term sui generis means 'of its own kind'. However, as the TRIPS Agreement does not define what an effective sui generis system is, nor does it refer to any specific existing rights regime or treaty, the term sui generis can mean different things to different people. For example, to some indigenous communities it signifies a new system of legal rights encompassing concepts such as traditional resources rights and the right to self-determination. To others, a sui generis system balances the traditional objectives of Intellectual Property Rights (IPR) with sustainably conserving and using biodiversity through a mixture of IPR and other instruments. In this document sui generis is used in its narrow sense to signify a system of IPR for the protection of plant varieties.".....Moderator]

-----Original Message-----
From: Biotech-Mod2
Sent: 04 May 2001 10:41
To: 'biotech-room2@mailserv.fao.org'
Subject: Defining a role for developed countries

I am Geertrui Van Overwalle. I am Senior Researcher at the Centre for Intellectual Property Rights, Faculty of Law, Catholic University of Leuven and Professor at the Catholic University of Brussel.

With regard to the current discussion, I would like to share some thoughts with regard to the question of how the negative impacts of the dominant IPR position of developing countries might be remedied.

In an attempt to offer some solutions to the constraining effects of the strong IPR position of developed countries, one could turn to the Convention on Biological Diversity (CBD) for some guidance. In particular, one could turn to Article 16 (5) of the CBD which stipulates that "The Contracting Parties, recognizing that patents and other intellectual property rights may have an influence on the implementation of this Convention, shall cooperate in this regard subject to national legislation and international law in order to ensure that such rights are supportive of and do not run counter to its objectives." [For those with access to the web, the text can be found at http://www.biodiv.org/convention/articles.asp?lg=0&a=cbd-16 ...Moderator]

On the basis of this provision, a few scenarios can be envisaged to remedy some effects of the dominating IPR position of developed countries. Those scenarios might serve as a starting point for constructing a balanced policy on the IPR issue in agricultural research by the governments of developed countries.

1. Free Access to and Transfer of Patented Gene Technology

Governments of developed, technologically-rich countries should stimulate their universities, research institutes and private companies to provide the access to, and the transfer of, gene technology subject to patents, to developing countries free of charge ("free licence") if the technology is only going to be used for local, small scale commercialisation and marketing. With regard to the contribution of such an approach to biodiversity, it can be argued that transfer of gene technology under advantageous terms can lead to the affordable use of genetic engineering tools and techniques for the adaptation of local crops in developing countries as well as to the conservation of biological diversity: local crops can be genetically engineered to meet the problems within a given community.

2. Free Use of Transgenic, Patented Saved Seed

Governments of developed countries should also encourage universities, research institutes and private companies to offer their transgenic seeds subject to patents, to developing countries free of charge for small scale commercialisation and distribution on local markets in developing countries and to allow small farmers to retain harvested seed for planting and exchanging. With regard to the contribution of the aforementioned approach to biodiversity, it should be taken into account that free use of transgenic seeds would probably lead to higher yields at affordable prices, but that one of the negative side effects of the import of new transgenic seeds from developed countries might be the loss of local varieties and hence biological diversity in developing countries.

Geertrui Van Overwalle, Belgium
Geertrui.VanOverwalle@law.kuleuven.ac.be

-----Original Message-----
From: Biotech-Mod2
Sent: 07 May 2001 11:42
To: 'biotech-room2@mailserv.fao.org'
Subject: Impacts - Regions and technologies

[Thanks to Ancha Srinivasan for this highly relevant and clear message. Reactions from participants would be much appreciated...Moderator]

It is really nice to see several refreshing messages on IPRs after a long dry spell in April!! In this posting, I wish to offer my views on two questions posed in the Background Document to this conference.

1. Are the impacts of IPRs different for different countries or regions of the developing world?

Yes. Traditionally, marks of geographic origin allow producers to identify their products as coming from a specific region that is identified with quality and authenticity. In most developing countries, the dependency on agricultural exports for small farmers' and agricultural workers' livelihood often traps them in a vicious cycle of needing to gain access to foreign markets. If patents are given in developed countries to products from certain regions in developing countries, those regions could experience substantial negative impacts in terms of reduced exports.

Here I wish to cite the well-known example of patents for Basmati rice (long grain aromatic rice traditionally grown only in Pakistan and the Indian states of Punjab, Haryana, and Uttar Pradesh). In late 1997, an American company was granted a patent by the US patent office to call the aromatic rice grown outside India 'Basmati'. With the Basmati patent rights, the US Company could not only call its aromatic rice Basmati within the US, but also label it Basmati for its exports. The only real issue is whether or not the company should be permitted to call their rice "Basmati". In 1997, India exported more than half a million tons of Basmati to the Gulf, Saudi Arabia, Europe and the United States, a small part of its total rice exports, but high in value. Indian farmers export $250 million in Basmati every year and U.S. is a target market. Therefore, awarding patents to companies in developed countries was considered to have grave repercussions for India and Pakistan. I do not know the actual impact of this specific patent on Indian or Pakistani rice exports so far, but I would appreciate it if anybody could provide information. I would also like to know the views of others in terms of devising mechanisms to minimize negative implications of IPRs in such specific regions.

2. Are the impacts more substantial for some biotechnologies than for others?

Yes. Although there is no solid proof yet, impacts of IPRs could be more substantial for modern biotechnologies and products with multiple patents (e.g., recombinant biotechnologies, diagnostics) than those products that are derived from traditional biotechnologies (micropropagation, tissue culture, etc.). For instance, a transgenic insect-tolerant plant may involve plant breeder's rights (PBR) patents, as well as several patents relating to transformation technology, the selectable marker employed, the gene coding for the insecticidal protein, the promoter, and various regulatory elements and modifications needed to express genes adequately in plant cells. Any IPR holder of even one element could block the commercialization of an insect-tolerant variety based on this package of technologies (Sehgal, 1996). Even after such a modern biotech product is introduced in a developing country, its diffusion in different regions might be limited if multiple players involved in its development fight for sharing the profits, based on their local/regional interests and market shares. Moreover, IPRs on modern biotechnologies are often concentrated in a few private sector organizations in developed countries while the IPRs on traditional biotechnologies are largely the result of public agricultural research.

Reference: Sehgal, S. (1996), "IPR Driven Restructuring of the Seed Industry." Biotechnology and Development Monitor, No. 29, p. 1821. (Available online at http://www.pscw.uva.nl/monitor/2907.htm )

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: 07 May 2001 12:02
To: 'biotech-room2@mailserv.fao.org'
Subject: Transgenic crops

At the same time that the use of transgenic technology should be made available to the public domain for those crops that do not generate an economical return, IPRs should also be considered to stimulate investment and development of new technologies. As agriculture generate profits, the governments and international institutes should emphasize the role of local farmers and their contribution to the conservation of genetic resources that impact the development of new cultivars by private institutions. They also should devise how to exchange this material for new technologies.

In addition, the government should be capable of negotiating and ruling adequate IPRs that, while protecting private investment, also ensure the liability of the private institutions to future litigation associated with the risk of transgenic plants and their impact in the environment.

Willy Valdivia Granda.
Plant Sciences Department.
North Dakota State University, United States
willy_valdivia@ndsu.nodak.edu

-----Original Message-----
From: Biotech-Mod2
Sent: 07 May 2001 12:07
To: 'biotech-room2@mailserv.fao.org'
Subject: Plant variety protection

I am Sunil Archak from India.

If protection is sought for a plant variety it has to fulfil novelty, distinctiveness, uniformity and stability criteria under the laws of more than one country, as well as the International Union for the Protection of New Varieties of Plants (UPOV).

A Question, and a tricky one, is how much distinct is accepted as really distinct? An increase in the grain yield of five kg per ha? An increase of 200 g of crude oil per kg of dry foliage? Or an increase of one microgram of vitamin per gram of fruit? The cases of an additional trait, additional fatty acid or colour to the foliage might be easy to grade in terms of distinctness; but what about the above mentioned examples?

Add to this another problem:
if marginal enhancements are discarded without reward, if the refinements are ignored and condemned as insignificant research, food production in developing countries would face danger. In the past, continuous refinement of prominent varieties, rather than the released varieties themselves, has been the basis of sustained yield levels, despite changing micro- and macro- environments. Such maintenance breeding is discouraged by interpretational problems of the law.

The principle of essential derivation adds confusion for the implementing agencies, and maybe sometimes for farming communities. Breeders throughout the world are not in consensus about the techniques used for varietal distinction. Molecular markers are not widely welcome due to various reasons.

Laws are easy to make, ambiguous to interpret and difficult to implement !! Plant variety protection laws should make an exception since it deals with food.

Sunil Archak
Scientist
National Research Centre on DNA Fingerprinting
National Bureau of Plant Genetic Resources
New Delhi
110 012
INDIA
sarchak@nbpgr.delhi.nic.in

-----Original Message-----
From: Biotech-Mod2
Sent: 07 May 2001 13:36
To: 'biotech-room2@mailserv.fao.org'
Subject: Re: Impacts - Regions and technologies

My name is Wytze de Lange and I was the secretary of the former Dutch Coalition Against Patents on Life.

I would first like to respond to the remark by Ancha Srinivasan [7 May] that micropropagation and tissue culture can be considered classical biotechnologies. I for one do not share that view. I consider tissue culture and micropropagation as modern plant breeding technologies with their own risks and potential hazards. The recent development in western countries to increasingly apply tissue culture to vegetables is something to be gravely concerned about and I would strongly recommend Southern countries not to follow that example. Just as I would recommend not to adopt transgenic crops, especially where those crops can cross pollinate. The mess that is now occurring in the USA, Canada and, increasingly, in Europe just shows how transgenic crops kill off any freedom of choice for farmers and consumers and contaminate all seedstocks and the whole food supply.

A better way to solve agriculture problems may be found at: Reducing Food Poverty with Sustainable Agriculture: A Summary of New Evidence (Pretty and Hine; Febrary 2001) - (full report,136 pages) http://www2.essex.ac.uk/ces/ResearchProgrammes/CESOccasionalPapers/SAFErepSUBHEADS.htm

No patents needed in that approach.

Wytze de Lange, Netherlands
wdl@xminy.nl

-----Original Message-----
From: Biotech-Mod2
Sent: 09 May 2001 12:16
To: 'biotech-room2@mailserv.fao.org'
Subject: Re: Plant variety protection

My name is Pierre Roger, I am in charge of IP for a French seed company.

Just a few words about the last contributions and especially about the remarks made about Plant Breeder's Rights (PBR).

Before that, there is a general comment that I would like to address: maybe we have to recall that
1) Intellectual property rights (IPR) are time- and space- limited (worldwide and perpetual patents, trademarks or PBR do not exist and will never exist, it is just contrary of the IPR spirit),
2) that a patent application is first a scientific disclosure contributing to human knowledge and that sometimes this application will become a granted patent where the actual right is defined,
3) that the limited monopoly of a patent is defined by the claims not by the description. As for any right, legal basis (laws, conventions, etc.) gives only little information if an actual assessment of its real impact is not made. For example, where do most of the "biotech patents" exist ? India, Nigeria, developing countries ? No. Most of them (not to say all of them) only exist in US, Canada, Europe (EPO), Japan and Australia where there is a legitimate wish of financial return. But their scientific content is available for all humans worldwide and free of use in all the other countries.

There is a second example that I would like to draw, the International Service for the Acquisition of Agri-biotech Applications (ISAAA) Freedom To Operate (FOT) study about Golden Rice is very interesting, but remember that most of the cited patents in this study are PCT applications which are not reflecting actual rights, but only potential rights if patentees are ready to spend million of dollars to extend and to defend their patent in those countries. [PCT refers to the Patent Cooperation Treaty. The PCT facilitates patent applications in multiple countries, but does not furnish an international patent...Moderator]. I will be very interested to read a renewal of this study in five years time to look at the changes of the FTO situation. I am pretty convinced that most of these applications in the developing countries will not exist anymore. [The document referred to is Kryder, R. David, Stanley P. Kowalski, and Anatole F. Krattiger. 2000. The Intellectual and Technical Property Components of pro-Vitamin A Rice (GoldenRiceTM ): A Preliminary Freedom-To-Operate Review. ISAAA Briefs No. 20. ISAAA: Ithaca, NY. 56 p. http://www.isaaa.org/publications/briefs/Brief_20.htm ...Moderator]

One additional comment about limiting patentability of biotech inventions: as a citizen I am very suspicious of any limitation in this domain because a patent has never been an authorization for commercialization - those aspects are ruled by other laws, authorities - but a patent provides transparent information about scientific knowledge and by limiting patentability I fear that transparency will be lost. Also, who are the patent attorneys that will decide if an invention complies with public order and morality ? They are of great morality for sure, but to decide in the ethical domain is a political issue, not a technical one. Then democracy has to take its responsability to decide if a research is acceptable or not, patents will never resolve this issue.

As a seed company involved in plant breeding for more than 200 years for several of our affiliates, we strongly support PBR as developed by the International Union for the Protection of New Varieties of Plants (UPOV) Convention since 1961 and periodically renewed by additional acts (1978, 1991). This international convention is, today, almost fifty countries working together to implement PBR on the same basis and practices. The UPOV Convention was created in the late fifties on consensual discussion between national and international authorities and breeders to create a well adapted right to protect plant varieties. To summarize the basic concept of such a right, it is important to say that the UPOV Convention protects plant variety and plant variety only (no protection of breeding methods or processes or genetic resources, I will come back later to this last and crucial item). A plant variety is defined as an unique combination of expressed traits and, as previously said [see message by Sunil Archak, 7 May...Moderator], must be new, distinct, uniform and stable of any previously known varieties to be protected under UPOV criteria. If meeting the UPOV criteria, only this combination is protected - none of the individual traits that are part of this combination are. Those traits are defined for each species, by the UPOV technical committees as reflecting genetic variability within this species (it is what we call the Distinctness, Uniformity and Stability (DUS) test guidelines, there is more than 150 guidelines existing today and publicly available at the UPOV website - http://www.upov.int/ ).

One of the crucial bases of the UPOV Convention is the Breeder Exception giving to anybody an irrevocable right to use a protected plant variety as an initial source of variation for creating a new plant variety. This provision exists since the first version of the UPOV Convention (1961) and is crucial, because it gives access to anybody to the genetic resources content in protected plant variety. By using another system of protection of plant varieties, this access does not exist and would impair the innovation possible through plant breeding.

There is more to say about the UPOV Convention, farm save seed provisions, essentially derived varieties, etc. but to respect this forum rules I will stop here.

Pierre Roger, France
pierre.roger@limagrain.com

-----Original Message-----
From: Biotech-Mod2
Sent: 10 May 2001 08:41
To: 'biotech-room2@mailserv.fao.org'
Subject: PBR's negative impact??

A study on the impact of plant breeders rights (PBRs) in the UK can be found on ActionAid's website (www.actionaid.org/campaigns/pbr.html ). [The study was previously discussed by Ruchi Tripathi, 2 May...Moderator]

Conclusion:
"On all three issues, investments, number of varieties introduced and monopoly power, one finds limited theoretical proof for the positive role of PBRs. One defining feature of the results reiterated above is the general fact that older breeding firms, now consolidated within TNCs [transnational companies], have been the primary beneficiary of the availability of protection. Further, the study establishes the influence of a range of other factors that have compelling impact. Based on this analysis it would be difficult to recommend the generalisation and harmonisation of PBRs (the UPOV system) across developing countries. Equally, there is no theoretical support for further expanding the scope of PBRs."

Comments on this study may be discussed in this conference, especially by those from UK.

Sunil Archak
Scientist
National Research Centre on DNA Fingerprinting
National Bureau of Plant Genetic Resources
New Delhi
110 012
INDIA
sarchak@nbpgr.delhi.nic.in

-----Original Message-----
From: Biotech-Mod2
Sent: 11 May 2001 11:16
To: 'biotech-room2@mailserv.fao.org'
Subject: Animals and IPRs

[A final reminder: The last day for receiving messages for the conference is Sunday 13 May...Moderator]

This is from David Steane, a consultant living in Thailand - until retirement (late 1999), I was working in Animal Genetics with FAO and earlier in the UK.

The majority of communications have dealt with plants where there is already considerable experience of IPRs - particularly of the International Union for the Protection of New Varieties of Plants (UPOV) and, more recently, patents. It is clear that UPOV attempts to provide access to material whereas patents do not. Pierre Roger's point [9 May] about a patent not being an authorisation for commercialisation is irrelevant to many players in biotechnology patents since the aim is often to stop others using the technology. Edo Lin [3 May] makes an important point that the agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) of the World Trade Organization (WTO) allows countries to decide on patenting - but Tom Saunder's point [10 April] regarding finance (or lack of) is also highly relevant.

Unfortunately, animal breeds do not appear to fit the UPOV definition requirement since sexual reproduction is the norm (so far)! The generation interval is much greater than in most plants, resulting in considerable investment (not just of cash!) by breeders over long periods to increase the frequency of genes, which can now be relatively easily identified!. "In theory", the gene cannot be patented but the test for one could be. There are of course other ploys as well.

Certainly, Glenn Ashton's point [12 April] (also Michel Ferry [e.g. 23 March...Moderator]) that IPR needs reconsidering is correct but it is likely that many developed countries will not welcome that. Nevertheless, one might consider Glenn Ashton's idea about proportionality by estimating the additional genetic change possible when using a 'gene' test in marker-assisted selection (MAS). [In his second message on 12 April, Glenn Ashton argued that "I would suggest that we work from the premise that the source of the genetic material that makes up the organism (in the case of living organisms) forms the bulk of the property (both intellectual and physical)." and "Thus the "value" of the "improvement" would have to be quantitatively assessed as a ratio or as a percentage, a proportion of the whole."....Moderator]. However, there is a further point - use of MAS in animals is predicted to reduce long-term progress - perhaps there should be a penalty for this payable to the Convention on Biological Diversity (CBD). Maybe there should be a component in the cost of granting IPR and/or patents which is payable to the CBD to use directly for conservation of genetic resources.

It has been pointed out [e.g. by Geertrui von Overwalle on 4 May...Moderator] that the CBD should offer potential solutions, but one of the major biotechnology patenting countries to date (the USA) has not ratified the CBD and is not bound by it. Surely, responsible bodies - the CBD itself and FAO (since it already holds plant stores in trust and operates the Domestic Animal Diversity Information System (DAD-IS) for farm animals)- should make positive efforts to advise all countries on the inadvisability of any genetic material being transferred to non-ratifying countries (Thailand also has not ratified to date).

Mention has been made of protecting material. I would hope that by now CBD and/or FAO legal sections would have a series of example drafts of Material Transfer Agreements which could be used between CBD ratifying countries whether for plants or animals. [In transferring germplasm designated under the agreements with FAO, the CGIAR Centres use a standard Material Transfer Agreement (MTA), the text of which was agreed with FAO. The MTAs require that recipients not claim ownership or intellectual property rights over the designated germplasm and related information, and that they bind subsequent recipients to the same conditions. More information, as well as the text of the agreed MTA can be found on the web at ftp://ext-ftp.fao.org/waicent/pub/cgrfa8/8-7-E.pdf ...Moderator]

At present, the role of IPRs for animals is limited but heavily biased - the implications are certainly dramatic and probably depend on the interpretation of patentability. From previous correspondents it is obvious that the UK and the USA take quite different views (UK preferring UPOV as biological patents could weaken the whole patent system - why has the USA moved in the other direction?). The apparently different standards used to provide patents presents even greater problems for the animal people since there is no 'UPOV' option - unless the definitions can be broadened for animals without weakening the plant system.

There must be a more independent system of defending the public good on a global scale given the increasing emphasis on 'global' scenarios. The CBD/FAO roles are surely to provide clear technical advice on all aspects (including legal/ social capital values etc) ahead of the game, rather than to have to follow events. The reason for this situation is political rather than technical and it hurts the developing countries hardest. I suspect that, in many countries, another difficulty may be that the people involved in WTO negotiations do not discuss matters in detail with the CBD negotiators from the same country. Even CBD representatives are likely to be different from the agricultural interests. There is an urgent need for countries to realise, and to prevent, the dangers from the present almost absolute segmentalisation of the different components of the resources essential to long term global survival. The United Nations (UN) is surely in the best position to provide all relevant information to governments, but which part of the UN ?.

David Steane, Thailand
desteane@chmai2.loxinfo.co.th

-----Original Message-----
From: Biotech-Mod2
Sent: 11 May 2001 11:30
To: 'biotech-room2@mailserv.fao.org'
Subject: Re: Plant variety protection

I would like to respond to some remarks by Pierre Roger in his contribution of 9 May and especially to the remark that "a patent provides transparent information about scientific knowledge and by limiting patentability I fear that transparency will be lost"

In Europe, this argument is used over and over again but it is demonstrably and absolutely wrong. It is exactly the opposite. Scientists, working on something that may be patentable, will share less knowledge with colleagues in order to prevent someone else stealing the idea and patenting it. Sharing and disclosing knowledge of course does not depend on patents, on the contrary. The only legitimate reason for patents is financial return on an investment, nothing else.

Now in the field of plant breeding one could think of other systems in order to provide return on investment. In Germany and Switzerland at present there is a project where plant breeders work with grant money. The results of their breeding efforts are given out for free. Plant breeding in that view is a public, cultural good which can be publicly funded but not privatised and with no need for plant breeders rights, plant variety protection etc.

Wytze de Lange
Presently working for
XminY Solidarityfunds
Keizersgracht 132
1015 CW Amsterdam
Netherlands
tel:+31206279661
fax:+31206228229
wdl@xminy.nl
http://www.xminy.nl

-----Original Message-----
From: Biotech-Mod2
Sent: 14 May 2001 09:31
To: 'biotech-room2@mailserv.fao.org'
Subject: Re: Plant variety protection

In his message of 11 May, Wytze de Lange quoted from Pierre Roger's message (9 May) that "a patent provides transparent information about scientific knowledge and by limiting patentability I fear that transparency will be lost", and added "In Europe, this argument is used over and over again but it is demonstrably and absolutely wrong."

Let us see such a demonstration. The argument sounds reasonable, but falls some way short of a demonstration. I will argue against it, as follows:

1. Scientists acknowledge a duty to communicate their knowledge, but generally reserve the right to decide their own timing. Even in areas where patents have no relevance at all, we see cases of this (e.g., mathematics).

2. Many scientists work in the private sector. Here, the patent system definitely makes it easier to publish work (I know this from my own experience in industry). Once a patent application has been filed (or, at the latest, published) companies will allow research to be published, and often to hand out samples. Without this, they would take a very cautious view, and try to keep everything secret.

3. Work in the private sector is increasingly important. Money for public research is tight. Private research is strongly motivated to suceed, and (provided the dangers of over-concentration are avoided) is likely to take more diverse approaches. Of course, private research cannot tackle problems of market failure - public money remains important for that reason (more is needed). But the idea that all private research either can or should be replaced by public money is difficult to take seriously. If private research is to continue, those who invest in it successfully must be able to recover their investments - and for this, IP is essential.

Tim Roberts, UK
European Patent Attorney
(formerly employed by Zeneca Seeds)
twr@compuserve.com

-----Original Message-----
From: Biotech-Mod2
Sent: 14 May 2001 09:44
To: 'biotech-room2@mailserv.fao.org'
Subject: Food security and TRIPS

Input from Ruchi Tripathi, ActionAid

1. The poor farmers in the future could be left much worse off by the introduction of IPRs on food and agriculture. This will increase the cost of the inputs, and might reduce diversity if the Distinctness, Uniformity and Stability (DUS) test guidelines of the International Union for the Protection of New Varieties of Plants (UPOV) was to be applied. On top of this, agricultural subsidies in the developing countries have been reduced due to the World Trade Organization, International Monetary Fund, World Bank, Asian Development Bank pressure.

2. So far, one of the main reasons I've been able to find regarding the benefits of IPRs in agriculture is just to protect the breeders innovation - and the link with quality/marketabilty is not clear. Even UPOV admits that plant breeders rights (PBRs) have nothing to do with the qualities of market success of a crop. Then why have PBRs ? Couldn't there be another form of an incentive system?

3. The African group of contries have put forth a proposal to ban patenting of life forms throughout the world - what do people think about that, would that help stop biopiracy?

4. There are a number of TRIPS plus+ bilateral agreements being followed - a recent European Union- Bangladesh trade and aid agreement is an example - which states that Bangladesh should endeavour to adopt and join UPOV 1991. Bangladesh is a least developed country (LDC). Is UPOV 1991 appropriate for its farmers ? Moreover, Bangladesh had a very good draft act that its government had prepared in consultation with the civil society which has now just been brushed aside. And finally, isn't this a threat to the multilateral trading system?

Ruchi Tripathi
Food Trade Policy Officer
ActionAid
Hamlyn House
MacDonald Road
London N19 5PG, UK
RTripathi@actionaid.org.uk
Ph: 0207 561 7560
Fax: 0207 561 7676
www.actionaid.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: 14 May 2001 09:48
To: 'biotech-room2@mailserv.fao.org'
Subject: Re: Animals and IPRs

My comments are in response to the 11 May message of Mr. David Steane of Thailand.

There exists a big gap between the dairy development status of the developing and developed countries. IPRs deal with protection of interests of the scientists and organizations who develop the new technologies or materials. In the developing countries, the allocation of resources for research and development are meager and they are only sufficient for the survival of these organizations or the continuation of the ongoing activities.

Introduction of exotic genes, especially during upgrading of the local cattle, has resulted in production of progeny that cannot resist the environmental and nutritional stress and the incidence of parasitic, protozoal, bacterial and viral diseases prevailing in the regions. Production of breeding bulls for covering the crossbred progeny is needed, which could not be achieved, at least in Pakistan. Reproductive performance of crossbred males as well as females is low, coupled with poor productivity. On the one hand, the local breeds are ignored because of their poor performance, leading to their extinction. And on the other hand, the crossbreeding could not be carried out in a proper way to benefit the farming community.

The developed countries/donors may assist the developing countries in genetic improvement of cattle in a sustainable way.

Muhammad Subhan Qureshi, PhD
Deputy Director Planning (Livestock)
Agric., Livestock and Coop. Department
Civil Secretariat Peshawar, Pakistan.
Tel. Office +92-91-9211938, Home 275572
Fax 9210033, E.mail qureshiz@brain.net.pk

[For further information on the FAO Electronic Forum on Biotechnology in Food and Agriculture see http://www.fao.org/biotech/forum.asp ]

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