8:55 AM Jan 26, 1996

BRAZIL SENATE BODY AMENDS PATENT BILL

Penang Jan (TWN/David Hathaway) -- A Brazilian Senate body has approved changes in a proposed legislation on patents to give effect to the Uruguay Round agreement on Trade-related Intellectual Property Rights (TRIPs) to exclude patenting of cells or plant and animal components.

The Brazilian Senate Constitution and Justice Commission (CJC) unanimously approved in December last, the Ney Suassuna (Parai'ba PMDB) amendment to the patent bill (PLC115/93) on Industrial Property.

The aim of the amendment is compatible with the agreement on trade-related intellectual property rights (TRIPs) of the Uruguay Round which was accepted by Brazil a year ago, but the way it is interpreted reflects various aspects of national interest.

The new CJC proposal, which must be ratified by the plenary of the Upper House, limits the registration of living beings to `transgenic microorganisms', defined in such a manner to exclude the patenting of cells or plant and animal components.

The amendment does not recognise any retroactivity (so-called `pipeline') on the patent applications presently underway in the National Institute of Industrial Property (NIIP) and explicitly includes the biotechnology-related requests (along with food and chemical and pharmaceutical products) as amongst those which will simply be shelved upon the approval of the new law.

Thus, Brazil will be able to continue freely using techniques and products from these areas which are presently in use worldwide, even though they have been patented in other countries.

The patents on biotechnological and pharmaceutical processes and products, etc., will only be applied to new requests, once the law comes into effect.

If the CJC amendment becomes law (that is, if it is approved by the Senate and afterwards by the Chamber of Deputies, and if the President does not veto it), it will come into effect five years after it is published and will demand that the patents be exploited commercially through local production in Brazil, and would also permit the so-called `parallel import' of foreign products.

These amendments were considered along with other points raised by hundreds of social organisations and movements, members of the Forum for the Free Use of Knowledge and other national institutions like the Brazilian Society for the Progress of Science (BSPS) and the National Council of Brazilian Bishops (NCBB).

The Forum recognised the importance of this vote as a Congress initiative to move within the GATT straitjacket, but at the same time expressed its regret over the acceptance of patents on microorganisms and biotechnological products in a moment when Brazil is still lacking a law or, at least, a policy to control the use and the appropriation of its genetic resources.

Hence, the Forum would prefer the approval of an amendment suggested by Senator Espiridiano Ami'n, which would leave biotechnological patents and those on living beings in general to be regulated in another law, operative from the year 2000.

Even the leader of government in the Upper House, Senator Elcio Alvares (of the Espi'ritu Santo PFL), praised the hard work and dedication of Suassuna in this project and declared - seconded by Senator Jose' Inacio (of the PSDB in the same state) - that he considered the proposal `constitutional, legally correct and respecting the GATT/WTO agreement.

The surprise vote came from Elcio Alvares, who was the first to present this project to the Senate (in 1993, until he became a minister), and had been working for months on another version of the project (that of Senator Francisco Bezerra, approved in the Commission of Economic Affairs), more in line with the demands of the United States government.

However, the transnational pharmaceutical and biotechnological industries in the Interfarma group are expected to react adversely, as also the United States government which defends these same interests through threats of retaliation against Brazilian exports to the US.

As a result, none can believe the tide has turned definitively in favour of a law accepted by civil society, even though the balance of power has changed substantially.

However, there is much speculation on why the government's parliamentary leaders changed their attitude to the amendment proposed by Senator Suassuna -- when a week earlier, along with the Interfarma lobby, they had tried to get the CJC vote against the same proposal, while Suassuna was in a meeting with another committee.

(David Hathaway is with a Brazilian NGO - the Forum for the Free Use of Knowledge (AS-PTA))