TECHNOLOGY: MORE STUDY NEEDED OVER IPRS IN LIVING MATTER

Apr 15, 1991

TECHNOLOGY: MORE STUDY NEEDED OVER IPRS IN LIVING MATTER – UNCTAD.

GENEVA, APRIL 12 (BY CHAKRAVARTHI RAGHAVAN) – Uniform international standards of protection of living material could increase costs to Third World farmers and make more difficult a second Green Revolution in the South to increase agricultural productivity and these issues should be studied more carefully before agreements are reached on these matters, according to an UNCTAD report.

(In several fora, including in the World Food Council, in relation to the burgeoning population in the Third World and the need to attack poverty and eradicate hunger, there is talk of a need for a new Green Revolution in the Third World)

The report on the trade and development aspects of biotechnology (TD/B/C.6/154) is by the secretariat of the UN Conference on Trade and Development for its Committee on Technology.

The issue of Intellectual Property Rights (IPR) protection for living matter is under discussion in GATT in the Negotiations on Trade-Related Intellectual Property Rights (TRIPs) in the Uruguay Round, and in the World Intellectual Property Organisation (WIPO) for revision of the UPOV (International Union for Protection of New Varieties of Plants) Convention to enable States to provide both patent and plant-breeder right protections.

The UNCTAD report notes that the question of IPR protection of living matter is a controversial topic whose implications for creation and dissemination of inventions is not well understood.

Hence, it argues, there is a need to study more carefully how different types of reform would achieve the aim of stimulating invention and promoting technology transfer and cooperation in the area of biotechnology, particularly with Third World countries, "before agreement is reached on adoption of uniform international standards of protection of living material".

A related issue meriting study, it says, is the corresponding protection of the traditional crop breeding by farmers in Third World countries that has never been remunerated as such and which could serve as a means of conserving plant genetic resources.

"Moreover", the report adds, "since the International Agricultural Research Centres and other publicly-funded research organisations are encountering increasing difficulties in gaining access to privately controlled genetic material due to the growing use of intellectual property rights protection, it may be advisable for them to consider adopting proprietary protection for their own innovations in order to be able to assure access to then of researchers and plant breeders in developing countries".

Agricultural research traditionally has been linked with public institutions and it was such publicly-funded research that was largely responsible for development of high-yielding varieties of seed grains associated with the Green revolution.

This is in contrast with the pharmaceutical and plant protection industries in which for some time it has been private sector that has carried out almost all the R & D.

At present the estimates of research budgets in plant biotechnology (BT) show a preponderance of private over public sector research, with the latter being responsible for only about 30 percent of total research in new biotechnologies.

Partly the result of reduced public spending, the tendency for publicly-funded R & D is downward in all EC countries except France, stable in the U.S. and upwards in France.

The growing relative importance of private as compared with publicly-funded agricultural R & D is leading to an extension of the rule of secrecy and confidentiality with regard to dissemination of knowledge in the field of biotechnology, however much it may stimulate investment in R & D by enterprises.

The increasing tendency of even public institutions and universities to patent the results of their research is a further manifestation of the trend towards secrecy.

This could slow down or make more costly the dissemination of knowledge relevant to the Third World countries.

Also, insofar as they do not participate in the emerging networks of manufacturers, research labs and public institutions engaged in development of BT innovations in industrialised countries, the Third World countries "are missing out in the generation and sharing of knowledge relevant to their needs and in the negotiation of licences under favourable terms that take place among participants".

"This ‘privatisation’ of knowledge produced by biotechnological research contrasts with the openness and incitement to widespread dissemination of the results of largely publicly-funded Green Revolution research that contributed so much to agricultural productivity in many developing countries", the report adds.

The drive to extend the scope of IPR protection of biotechnology through reform of industrial patents and/or plant breeders’ rights legislation could accentuate these tendencies, particularly if it leads to a proscription of the existing right of breeders to use protected plant varieties for creation and commercialisation of new varieties.

The two systems of IPR protection for plants and plant BT innovations are governed by separate international conventions.

For eligibility for Plant Breeders' Rights (PBR) protection, a plant variety has to be distinctive (clearly distinguishable from other protected varieties), homogenous or uniform, and stable (characteristics remaining unchanged after repeated reproduction or propagation).

Industrial patents are granted for inventions which are new (not previously known), industrially applicable (serve some useful purpose and have a market as opposed solely to an idea or concept) and involve an inventive step (not obvious to a person ordinarily skilled in the art). The invention must also be repeatable. Under the patent system and its disclosure requirements, the disclosure must enable others to repeat the technical solution in the patent.

The scopes for protection under the two systems are different. The PBR rights extend only to commercial manufacture and marketing of the propagating material at the production stage of the propagated variety.

Farmers who have bought seed from a plant breeder or a seed company can retain a portion of their crops for resowing the following year without paying again for use of the seed.

A patent law would make such payments mandatory.

Under PBRs, the use of a variety as an initial source of variation for creating other varieties, even if they possess some of the traits of the protected varieties, or for marketing such varieties, does not require authorisation by the breeder of the original variety. In the case of patented inventions, the consent of the holder of the prior patent would be needed.

Under the UPOV convention, member-states can provide only for one form of protection for the same botanical genus or species either patents or plant variety protection.

If patent protection is provided, the requirements and effects of such protection must comply with the conditions in the UPOV convention. When the UPOV was concluded in 1961, or subsequently in 1973 at the time of the European Patent convention, it was widely held that patents were not a suitable method of protection for plant varieties.

Since then, the substantive research and inventive effort and investment in biotechnology, and pressures from breeders and industry groups, UNCTAD notes has led to the erosion of the principle of non-patentability of living matter and natural processes under industrial property law. The U.S. Supreme Court has now affirmed patentability of micro-organisms in 1980, and subsequently with similar decisions on maize, oyster and a mouse.

Since 1985, genes, plant parts, plant varieties and processes for developing new varieties and hybrids are considered as patentable under the general patent law of the U.S.

There is a similar drive in other ICs, although in Europe, the 1973 European patent convention explicitly excludes plant varieties and biological processes from patent protection.

The appropriate scope of protection of BT inventions and discoveries is a matter of debate at national levels and in multilateral negotiations.

In 1988, for example; the EC Commission directorate for industrial affairs put forward proposals for harmonising and enlarging patent protection of BT inventions in member-states. Similarly, UPOV members have been discussing for some time a major revision of the convention to strengthen protection of plant varieties.