The debate on the patenting of life forms will reach its most crucial stage in the area of agriculture and Plant Genetic Resources (PGRs).
The importance of the farmer as a developer of new seed varieties
We are inclined to think of the farmer merely as a person who produces the food we eat. However, the farmer plays the important roles of grower, breeder, scientist, and researcher. Farmers do not merely use seeds; they help to conserve and improve new plant varieties. It has been noted that their activities “ensure crop evolution whereby new varieties arise through genetic recombinations, mutation and hybridization within and between cultivated and wild plant populations”. Another important factor is that many of these traditional crops have been bred, developed, and kept alive by farmers and are available in the public domain. The contributions made by farmers to the development of plant diversity have been recognized by the International Undertaking on Plant Genetic Resources (IU). However, farmers are frequently not viewed as plant breeders, with the result that another individual or organization may use the seed that has been preserved and developed by the farmer, add an inventive step to it, and patent it – with no benefit accruing to the farmer.
Also, the various legal instruments that govern this area send out mixed signals. While the Convention on Biological Diversity (CBD) has sought to establish rules on the access to genetic resources and on benefit sharing, UPOV has sought to limit the rights relating to such access. All of these will in turn have an impact on the way TRIPS is implemented. While plant breeders’ rights seek to restrict access to certain protected varieties, it has been recognized that freer access is vital if the world’s food demands are to be met. The Food and Agricultural Organization (FAO) had recognized that PBRs were not incompatible with its objectives of accessing and using PGRs for food and agriculture. UPOV’s previous models had also allowed this, by permitting the use of protected varieties as the source material for further variation and the re-use by farmers of saved seeds. Both of these activities are regarded as important methods of diversity generation. However, the revision of UPOV, as well as the growing willingness to patent plant materials, has threatened the concept of free access to these resources.
In the negotiations of the IU, it has been stressed that access to PGRs for food and agriculture is essential for sustainable agriculture. The IU aims at a system of “shared access”, whereby those participating in a multi-lateral system will be able to share in the benefits. There has also been concern that increased IP rights will make the exchange of this information difficult, if not impossible. Accordingly, certain countries may be unwilling to enter into a shared access regime if the genetic resources maintained and developed by their farmers and communities are to be appropriated by foreign companies, who will then patent those resources and prevent those very countries that supplied the original resources from having access to and using the protected material. This conflict has been described as follows:
The Third World farmer has a three-fold relationship with the corporations that demand a monopoly of life forms and life processes. Firstly, the farmer is a supplier of germplasm to TNCs (trans-national corporations). Secondly, the farmer is a competitor in terms of innovation and rights to genetic resources. Finally, the Third World farmer is a consumer of the technological and industrial products of TNCs. Patent protection displaces farmers as competitors, transforms them into suppliers of free raw materials, and makes them totally dependent on industrial suppliers for vital inputs such as seeds.
Bio-piracy and bad faith
The current regime of IPR protection of genetic resources is also not equitable. Apart from the ethical issues already discussed, there are three other factors that merit consideration: first, a large number of patents have been granted on genetic resources obtained from developing countries, often without the knowledge and consent of those who possess these resources. This has led to charges of bio-piracy, which involve resources that are protected without further improvement. For example, researchers of Colorado State University were awarded a patent for quinoa without having added anything to it. Further, patents have also been granted for products based on plant materials and knowledge developed and used by local and indigenous communities, such as the cases of the neem tree, kava, and turmeric. A patent on turmeric granted to the University of Mississippi in 1993 was invalidated by the US Patent Office at the request of India’s Council for Scientific and Industrial Research. Some of these patents are in direct violation of the laws that govern this area. For example, it has also been argued that the growing and marketing of “Texmati” or “Texbasmati” – the basmati grown in Texas – is a violation of the Geographical Indication provisions of TRIPS, as well as a direct violation of the CBD. It violates TRIPS because it assumes the name of the long-grained, fragrant rice grown in regions of India and Pakistan. It violates the CBD because it appropriates the ownership rights of India and Pakistan to the germplasm found in their territories.
Secondly, some patents have been granted based on the function, and not on the structure, of the invention. This means that the invention is described on the basis of what it does, rather than its constituents. The result is a far wider scope than should be awarded; it restricts access by others to a wide segment of germplasm. For example, it has been noted that patents have been awarded for any genetic manipulation of cotton, regardless of the germplasm used, as well as a patent awarded to Lubrizol for sunflower seed, where the exact properties were not set out.
Thirdly, certain entities have sought to register PBRs for resources that have been deposited in genebanks and are being held in trust for the international community. This should not be allowed under any circumstances, as it amounts to theft, pure and simple. The Consultative Group on International Agricultural Research (CGIAR) has called for a moratorium on granting IPRs on designated germplasm that are held in CGIAR’s collections in research centres around the world. CGIAR has stated that such germplasm is held in trust for the world community and therefore should not be patented by anyone.
All of these types of activities have increased the fear of developing countries, many of which are rich in bio-resources, that they will be at the losing end of the deal if IP rights are enforced and strengthened. Best CBD Vape Pen UK