5:46 AM Aug 9, 1994


Geneva Aug (Chakravarthi Raghavan) -- Governments of the South should take full advantage of the time span available to them for compliance with the Uruguay Round Trips accord and choose systems that would be in their own national self-interest, and not be in a hurry to adopt laws to provide protection for plant varieties.

This is the advice from an international group of experts -- 'the Crucible Group' as it calls itself -- on the implications of the Uruguay Round Trips agreement and the UN Convention of Biological Diversity.

The group notes that Third World countries have a five-year time span to adopt laws and measures to comply with the TRIPs patent provisions, and the least developed among them a 10-15 year further time-span.

Full advantage should be taken of this time available for governments to carefully study their various options, including sui generis system of protection to plant varieties, and not be in a hurry to adopt any patenting system or the WIPO administered UPOV system, the group says.

The report of the group, "People, Plants and Patents", published by the International Development Research Centre, has some consensus recommendations, and many others where there are three different viewpoints reflecting the differences within the group on what the preface calls "this hotly contentious subject".

The members of the Group are described as coming from government and non-government research centres, commercial and academic groups, and some trade and development policy experts in their individual capacities. While naming them, their affiliations, background and interests are not identified.

A somewhat surprising, but consensual view of the group, is that neither industrialized countries nor international companies regard the South as a "prime target" for the TRIPs provisions related to biomaterials and that, "with some exceptions, developing countries are not perceived to be a significant market for biological inventions developed in the North".

The group does not identify the "exceptions".

But media reports of agitations and controversies such as in India over activities of US commodity trading and seed firms like Cargill, would suggest that TNCs may have only a few Third World countries in their sights, but these few are the ones with very large populations, for more than two-thirds, and with some prosperous farmers and many many millions more of subsistence farmers.

The Crucible group's view that "private companies are not interested in obliging small-scale farmers not to save company-protected seeds for succeeding generations or even in preventing them from trading seed with their neighbours" would be a somewhat shaky ground on which countries could base their laws and measures.

For, while at present the cost/benefits to an IPR holder to pursue farmers over saving seeds without paying royalty might not warrant such a course, at any time in the future, any such TNC or its local licensee might find it profitable enough to assert its rights, and if a host government does not ensure it, the home government of the TNC could easily raise a dispute at the World Trade Organization. Past GATT practice makes clear that failure to assert rights in the past, would not preclude a WTO member from doing so in the future.

Referring to the changing role of intellectual property, the species claims for patents filed by some for genetically engineered strains, the Crucible Group recommends that the United Nations and the World Intellectual Property Organization should jointly convening an international conference on 'society and innovation'.

Such a conference, the group suggests, should be convened to meet in 1998, on the occasion of the 125th anniversary of the Vienna Conference that brought into being the modern international patent system.

In the last decade of this century, the group notes, changed political forces and advent of new technologies, specially bio-technologies and informatics have contributed to the development of a global market place. The new technologies have been an important consideration in national development and international trade and their influence had driven a revolution in the intellectual property (IP) system.

While both North and South would be affected by the new and integrated role of IP system, its impact will be greater on the South, in particular on its farmers, rural societies and on biological, including genetic, diversity, the Crucible group says.

For the first time, policy-makers and opinion-makers dealing with trade, development planning, agriculture and environment must give careful consideration to the implications of intellectual property. Many would be surprised to find that IPR decisions have major implications for national food security, agricultural and rural development and for environmental conservation.

Referring to the patent option for plant varieties, the report notes that for patents to be granted, their application must include a full written description of the invention and how to carry it out. But the very nature of life forms makes such a full description impossible. Thus, some argue, "life" patents run counter to the very rules of the system in which it is assumed that an inventor gets a patent in return for full disclosure of the invention.

Defenders of the patents system within the group however agreed that patents on biological processes and products should meet all normal requirements for patentability, including proper disclosure.

But others among them felt that adequate disclosure being factually impossible, "the new biotechnologies collectively warrant their own sui generis legislation". An international system created almost 125 years ago to patent machines and factory parts, they felt, might not be the best system for plants, animals and micro-organisms.

The Crucible Group says that the attempt of the US National Institute of Health (now withdrawn) and of the Incyte corporation to patent and lay claims to thousands of DNA segments, and two species claims by a W.R.Grace subsidiary over any cotton using any form of genetic modification technique has left many strong advocates of patents "surprised and disturbed".

Yet another concern within the Group, shared by both opponents and many proponents of patents, has been the recent trend towards patent approvals for plant characteristics not necessarily linked to specific genes -- such Lubizol patent claims over high oleic acid characteristics in sunflowers.

"The effect of such sweeping claims could be to discourage investment and innovation in the same broad area by other researchers. Applied in this way, the patent system blocks innovation and competition -- exactly the opposite of the purpose of the system."

Developing country governments in the South, the group advises in this context, might wish to delay any patent law over life forms until the current ambiguities and uncertainties are resolved, either through treaty changes or court decisions in industrialized countries.

Only governments with strong judicial systems should contemplate patent protection, the group said. Registration and litigation would be demanding and resource consuming.

Countries adopting a patent system related to living materials must be prepared to divert human and financial resources towards the development of a patent office with specialist skills in biomaterials. In some countries this could draw funds and talent away from other nationally important priorities.

The Group noted that while it is possible to apply for world-wide patents, it is not possible to defend such patents other than on a country-by-country basis. Since most countries of the South would be unable to defend their claims themselves, they would need either powerful financial help or a strong partner to whom they would licence their patents so that they could be defended in various countries.

All things being equal, licensing arrangements might not yield as profitable a return as direct exploitation. Thus, in some situations, licensing may be a realistic but not an optimal choice.

Research exemption guaranteed under patent law protects right of scientific workers to use patented inventions without charge or prejudice for non-commercial investigations. "This exemption must be unambiguously secured so that science could be pursued without fear of litigation," the group says.

The Group has also advised that "both government supervision and legal enforcement of IPRs with respect to genes requires careful consideration since such protection for genes is made especially complex: it is sometimes impossible to control the flow of genes between plant populations."

As for a sui generis system of protection, the Crucible Group suggests governments signing the GATT accord and choosing sui generis system of protection could use the two models -- that of UPOV 1978 and that of UPOV 1991 which have significant differences -- and adopt either of these provisions.

However some members of the Group have noted the regulatory progression, since the forming of the UPOV, which continuously strengthens the interests of commercial breeders and undermining the interests of farmers. These members believe that countries adopting UPOV 1978 would find themselves "on a political and policy treadmill leading inevitably to UPOV 1991 and then onward until UPOV is indistinguishable from the most monopolistic of the utility patent system".

While there may be circumstances in which adherence to the UPOV 1991 might be immediately beneficial to a developing country, there was general agreement within the Crucible Group that the 1978 Convention was less demanding and would be preferable.

Governments, the group adds, could also adopt a sui generis national legislation similar to UPOV 1978 without the obligation of becoming a member of the UPOV Convention.

The TRIPs agreement, in Art. 27.3 (b) provides that while WTO members could exclude from patentability, plants and animals other than micro-organisms, and essentially biological processes for production of plants and animals other than non-biological and micro-biological processes, they shall provide for protection of plant varieties either by patents or by "an effective" sui generis system or by any combination thereof.

This provision is to be reviewed four years after entry into force of the WTO agreement.

During the final stages of the Uruguay Round negotiations, when India had problems about plant protection -- visavis the farmers right to save seeds and rights of research workers -- and seemed likely to withhold consensus, the major protagonists (US and the EU) would appear to have given assurances that they would not challenge any measure providing for rights of farmers and researchers. Good as it may be, in terms of intentions of governments in power, unless this is reflected in any official negotiating history, such assurances need not hold good for all time in the future.

This has led many Southern and Northern NGOs to suggest that developing countries should make use of the five-year time span they have to conform with TRIPs and coordinate among themselves as well as to join hands with those industrialized countries who are opposing the patent system over life-forms, including gene-patenting, to create a global sui generis system that would have due regard to ethical and moral criteria in these matters.