ECOLOGISTS SHOULD WORRY ABOUT THE DUNKEL DRAFT

6:52 AM Sep 23, 1993

ECOLOGISTS SHOULD WORRY ABOUT THE DUNKEL DRAFT
by Vandana Shiva*

New Delhi Sep (TWN) -- Initially, nobody worried about the GATT. It was, after all about global trade and, as in India, was assumed to be best left to Commerce and Trade ministry officials.

Then rumblings were heard from the domestic pharmaceutical lobby in India that GATT would destroy the indigenous capacity to produce drugs at reasonable prices. The Indian pharmaceutical lobby's complaints have now been echoed by Latin American and Canadian generic drug manufacturers, as evidenced by the recent convention in New Delhi.

Then came in l992, the thundering voice of the farmers movements (in India) and their "Seed Satyagraha", making clear that GATT would affect their very survival and that esoteric terms like `Intellectual Property Rights' were about life and death options for the people.

However, the environment movement in India (and elsewhere) has yet to take up GATT and the Dunkel Draft as the most significant environmental issue of the times.

In the runup to the Rio Earth Summit and its earlier preparations (immediately after the Bruntland report), a few persons with some knowledge of the intellectual property issues, did try to alert the international environment NGOs. But many of them thought at that stage the Uruguay Round negotiations had become far advanced and it would be difficult to upset it, and instead chose to concentrate on making changes in the biodiversity and other conventions and programmes.

Now as the US and EC interpretative moves on Biodiversity Convention show, the two are planning to virtually negate even the meagre provisions of this convention and make the TRIPs accord, and any future changes, prevail over the more universal Biodiversity Convention signed at the highest levels by Heads of States/Governments at Rio.

Since the TRIPs agreement also relates to plants, animals and microorganisms, the Uruguay Round draft is in fact a rewriting of humankind's relationship with these species, and not just a trade treaty. It is also an environmental treaty.

Accepting it in its present form amounts to accepting the ethical framework that all species are only for human use and exploitation and their value is defined by how much some human groups can profit from that exploitation. It also condemns all people and all societies to the abhorrent position of accepting that the living diversity of this planet can be reduced to patented private property.

These implications go against all notions of an environmental ethic, and should be of concern to all.

However environmentalists, in India and more so in the industrialized countries, have left this fundamental issue in the hands of the Trade bureaucrats.

In India, the Commerce Minister Kamaluddin Ahmed recently told the Consultative Committee of Parliament attached to his ministry that India would not accept GATT-TRIPs if it goes against the country's interests. In contrast, a few weeks earlier the Commerce Secretary had said that India will accept GATT as it is and anxiety on IPR issues was misplaced.

The Government of India has been vacillating on the IPR issue ever since the Dunkel Draft became a subject of popular debate and farmers have started direct action against patenting of seed and plant material. The government's views on this have been held by its critics as misleading.

Article 27.5.3(b) of the TRIPs text of the Dunkel Draft refers to the patenting of life and says: "Parties may exclude from patentability plants and animals other than microorganisms, and essentially biological processes for the production of plants or animals other than non-biological and micro-biological processes. However, parties shall provide for the protection of plant varieties either by patents or by an effective sui generis system or by any combination thereof. This provision shall be reviewed four years after the entry into force of the Agreement".

The problem with this text is that while it appears to be an agreement about exclusion of living organisms from patentability, it will in fact put the world on the slippery slope of patenting of life forms that has already been moving in the US Patent Office and US Courts.

This issue that is directly related to the ecological and ethical fabric of our societies, and to the economic options of survival of people should not be left to Trade Ministries and negotiators.

The TRIPs agreement is not about trade. It is also about the ethics of how human beings relate to other species and what the moral and cultural values of our civilisation. It is about how our biodiversity is used and controlled - by local communities who have protected it, or by corporations which have found new ways to exploit and own it.

In many cultures, as in India, and according to patent laws, life cannot be patented because it cannot be owned and it is not manufactured. But GATT will force the giving up of these moral values, as well as economic priorities and sovereignty of nations and TRIPs accord pushes countries into making all living organisms the property of a handful of corporations.

On first reading, it appears that the Trips article is about the exclusion of plants and animals from patentability.

However, this phrase also exists in the US patent law. The existence of this phrase has however not prevented the US from allowing patents for plants and animals.

The problem is that the phrase "plants and animals other than microorganisms" does not cover parts of animals and plants, nor does it include altered plants and animals, and therefore allows the patenting of biological organisms. Also, the words "other than microorganisms" prevents the exclusion of microorganisms from patentability and makes patenting of microorganisms compulsory.

Since microorganisms are living organisms, making their patenting compulsory is the beginning of a journey down the slippery slope that leads to the patenting of all life. The best example of this slippery slope can be seen in the recent history of United States patent law where the granting of patents to microorganisms signalled the taking of a first step to granting patents to socalled higher life forms.

In 1971, General Electric and one of its employees, Ananda Mohan Chakrabarty applied for US patent on a genetically engineered Pseudomonas bacteria. Taking plasmids from three kinds of bacteria he transplanted them into the fourth.

As he explained: "I simply shuffled genes, changing bacteria that already existed".

The patent office rejected the application on the basis that animate life forms were not patentable. The case was appealed in the Court of Customs and Patents Appeals Office and then in the Supreme Court where, nine years later, Chakrabarty was granted his patent on the grounds that the microorganism was not a product of nature, but Chakrabarty's invention and therefore patentable.

But as Andrew Kimbrell, a leading US lawyer recounts: "In coming to its precedent-shattering decision, the court seemed unaware that the inventor himself had characterised his microbe as simply 'shifting' genes, not creating life.

On such slippery grounds the first patent on life was granted and despite exclusion of plants and animals in US Patent law, the US has since then rushed on to grant patents on all kinds of life forms.

On April 12, 1988, the US Patent and Trademark Office (PTO) issued the first patent on a living animal. Patent No. 4,736,866 was granted to Harvard Professor Philip Leder for the creation of a transgenic mouse containing a variety of genes found in other species, including chickens and humans. The licensing rights for the patent are held by Dupont Company, the transnational that financed the Harvard research responsible for creating the genetically engineered mouse.

This means Dupont has patent ownership of any animal species -- be it mice, rats, cats or chimpanzees, whose germlines are engineered to contain a variety of cancer-causing genes.

Currently, well over 190 genetically engineered animals, including fish, cows, mice and pigs are figuratively standing in line to be patented by a variety of researchers and corporations.

According to Kimbrell, "the (US) Supreme Court's Chakrabarty decision has been extended and continues to be extended, up the chain of life. The patenting of microbes has led inexorably to the patenting of plants, and then animals".

It is this inexorable rush for patenting all life forms that will be extended to India and other countries through the openings the GATT-TRIPs in its present draft provides.

In December last year, during the informal dinner consultations held by Dunkel, India has put forward an amendment, for insertion of a footnote to Article 27.3 (b) which states: "It is understood that naturally occurring biological material such as chromosomes, plasmids, DNA/RNA sequences/segments or parts thereof, howsoever derived are not patentable subject matter".

In Europe, the provisions of the European patent treaty, which has language similar to that in the Dunkel draft, has been interpreted by the EC's Courts as prohibiting such patenting of chromosomes plasmids etc.

However, the EC Commission, in a note to its member-states in the socalled 113 Committee in Brussels, in relation to the biodiversity Convention (where it wants to ensure through interpretations that the TRIPs or any other future GATT accords in this area would prevail over the particular provisions of the Biodiversity Convention) has in fact argued that only by granting gene patents, and making it a profitable property of corporations, can biodiversity be assured!

The EC Commission's efforts to persuade India and others not to seek changes, such as in the footnote proposal, but go by the Ec court interpretations, has to be seen in this light, and the proposal to review this provision after five years. The EC clearly hopes by then to get its own laws revised, and then in conjunction with the US and Japans ram it through on others.

Also, as the Chakrabarty case illustrates, the term "naturally occurring" is ambiguous.

All that genetic engineers really do is "shuffle genes around"; they do not create life. Therefore, literally speaking, no life forms should be patentable.

However, patent offices and courts have interpreted modification as creation. This allows the ownership of any altered biological material. The term "naturally occurring" does not prevent such patenting of life because the term does not cover altered biological materials. It is in fact vacuous in preventing the patenting of biological organisms and materials.

To ensure that life is not turned into a patentable commodity, the International Biodiversity and Biotechnology Network, a grouping of independent and eminent scientists, lawyers and activists has recommended that Article 27.3 (b) of GATT-TRIPs be redrafted to exclude all living organisms from patentability.

This is an ecological, ethical and economic imperative. and it is time the environmental movement of India and abroad also took up the issue of the patenting of life as an important concern and protect the integrity of all life forms and keep the living diversity of this planet "free" and "wild".

(* Vandana Shiva from India is a scientist by academic discipline, and a well-known ecologist and activist in the environment movement and author of several books. She has been a member of the UNEP expert panel on biodiversity convention)