Jan 16, 1989


GENEVA, JANUARY 13 (IFDA/CHAKRAVARTHI RAGHAVAN)— The current U.S. drive in the Uruguay round for protection of Intellectual Property Rights (IPRS), such as patents, is "a demand that other states subsidise American companies at the level of the United States".

This view is presented by Pat Roy Mooney of the rural advancement fund international of Canada in a chapter of the back "biotechnology revolution and the third world".

For the remainder of the eighties and into the early nineties, the battle over "life patents" in Geneva - at the GATT, at the world intellectual property Organisation (WIPO) and the union for protection of new plant varieties (UPOV) - "will be one of the most important north-south and moral battles of this century - a battle which the south, organised and certain of its strengths, could win", according to Mooney.

Historically, he points out, biological products and processes have not been eligible for IPR protection.

But current discussions - within the EEC, the OECD, the WIPO and the GATT - are leading to a change in international conventions that would "industrialise" biology and make manipulated genes and altered species patentable.

"In effect, the vast biological diversity of the third world - whether discovered or adjusted could be rendered the intellectual property of private interests."

In the Uruguay round (under Trade-Related Intellectual Property Rights or TRIPS), the U.S., EEC and Japan are seeking protection of intellectual property rights.

Under its 1984 trade and tariff act, the U.S. now considers lack of patent protection to be an unfair trading practice, arguing that absence of patent laws in one country is a non-tariff trade barrier for those that have such laws.

The U.S. has charged South Korea with unfair practices over lack of patents for chemicals and foodstuffs, and has now gone after Brazil over pharmaceuticals. The U.S. also wants Canada to adopt laws similar to those in U.S. for pharmaceuticals and plant varieties.

Lawyers, Mooney notes, agree that patents are "a form of government intervention in the market place", and economists agree that it is "a form of government subsidy, not unlike tax credits, export incentives, and post-secondary education".

Mooney adds: "thus, the U.S. is asking GATT not to lower trade barriers or reduce export subsidies, but to force other states to meet the level of subsidy offered in the U.S.A. The Reagan Administration takes the view that it is unfair for other countries not to subsidise American companies in the manner in which they have grown accustomed at home. Any government denying these sacred rights violates GATT and is downright un-American".

Apart from this "most dangerous battle" in the Uruguay round there are also "skirmishes" being fought in the WIPO and UPOV, Mooney notes.

In the WIPO, industrial countries want the definition of industrial patents in the WIPO-administered Paris Conventions to be adjusted so that plants, animals and micro-organisms could come under the WIPO mandate.

WIPO, Mooney adds, hopes to absorb biotechnology patents without a change in its international convention.

In the UPOV, the present restrictions, which make it more difficult for big biotech companies to move easily from plant breeders' rights to industrial patenting, are to be removed.

Industrial countries would then be able to use WIPO and/or UPOV for protection of plant varieties, and UPOV would be flexible enough to allow the convention to be used for animals as well.

"National laws and international conventions that were first passed to exclude specifically the patenting of life's essentials such as food and drugs - and which explicitly rule out monopoly over biological processes - are now being altered to incorporate these very essentials without referral back to society".

"These are not technical issues," Mooney points out.

Apart from its philosophical implications, there are also some practical consequences of patenting life.

A patented gene would retain protection in any combination of genes; "a new variety could end up with more patents in it than a Boeing 747, with each gene "owned" by a different company and with a royalty charge".

The right to prevent others using a patented gone would block traditional methods of variety improvement and could allow one patent holder to monopolise future of a crop through a specific gone, for example, to resist a major disease.

For instance, the only gone known to fend off grassy stunt virus and incorporated into rice sawn in over million hectares of Asia comes from Oryza Nivra, a form of rice from Uttar Pradesh in India.

Should such a gene become any one's monopoly property?

Patents are now being granted for genes producing a particular characteristic - as in a recent patent for a sunflower variety with a very high oleic acid content. If this stands up in court, "a patent holder could prevent others from completing research even using totally different genetic systems."

According to an U.S. patent office announcement in fob 1988, the offspring of a patented livestock would also be subject to royalty charges throughout the 17 years of patent protection.

" This version of the ‘original sin' would soon be visited upon plants as well, and if it happens, farmers would be unable to save seeds from their own crop, a traditional right in most countries".

But biotech companies would prefer to use WIPO patent system.

While it has a few disadvantages - like forcing a complete written down description of the plant, or gene or animal to prove an "inventive step" - the rewards would be great: "not only would farmers be forced to pay for the offspring of their cows and maize but for generic patents, such as characteristics and for hybrids."

Industrial countries in control of these new technologies, Mooney underscores, have little or no interest in establishing a safe or equitable framework for utilisation of biotechnology.

But third world countries should use the UN system, with all its manifest limitations, to secure political understanding on biotechnology and secure among other things:

--A code of conduct on biotechnology, including research, technology transfer, intellectual property, and social consequences and priorities for the technologies,

--Inclusion of genetic materials in the UNESCO treaty on cultural rights and repatriation of cultural heritage,

--Expanding the FAO commission and undertaking on plant genetic resources to include FAO's work an forestry, aquatic and animal, germplasm,

--Expanding the W.H.O. code of conduct an pharmaceuticals to include impact of biotechnology,

--An UNEP study on the environmental impact of the now science, and expanding the activities of UNEP's office of international registry of potentially toxic products to include monitoring of genetically engineered microorganisms and

--UNCTAD undertaking a wide overview of all issues involved in biotechnology.

Mooney argues that the work of all these separate agencies should ultimately focus at a major UN conference on life sciences to be. Held in the third world not later than early 1990’s.

Such a conference should be provided the same scope and care and preparation as the Stockholm Conference on Environment and the political attention given to the law of the SEAS negotiations.

The South Commission, Mooney adds, should also make biotechnology a major element in its considerations and study both the science and social context of the new techniques.