4:35 PM Oct 26, 1995

GROWING OPPOSITION TO BIO-PIRACY, LIFE PATENTS

Penang, Oct 25 (by Martin Khor) -- Opposition of civil society to "biological piracy" by the Transnational Corporations is rapidly spreading across the world, as more and more groups and people become aware of the theft by big corporations of the knowledge and biological resources of Third World communities to reap massive profits.

There is growing public outrage that these corporations are being granted patents for products and technologies that make use of the genetic materials, plants and other biological resources that have long been identified, developed and used by farmers and indigenous peoples, mainly in countries of the South.

While the corporations stand to make huge profits from this process, the local communities are unrewarded and in fact face the threat in future of having to buy the products of these companies at high prices.

The TNCs are racing one another to manufacture pharmaceutical and agricultural products, the main ingredients of which are the genetic materials of the medicinal plants and food crops of these local communities.

They are also collecting other living things, ranging from soil microorganisms to animals and genes of indigenous people, which they use for research and making new products.

These companies are rushing to patent the new products containing the collected genetic materials, so as to prevent competitors from using them. They can then reap larger profits by being able to hike up prices for the products, or by charging royalties to other firms wishing to use the technology.

There is much at stake in this great race of companies to patent, ahead of their rivals, with the next millennium already termed "the age of biology", when products derived from biological materials are expected to increasingly replace those made from metals and chemicals.

The genes of living organisms are the basic "raw materials" of the new biotechnologies. The "Gene Rush" has thus become a new version of the old "Gold Rush", in the scramble for future profits.

Farmers and indigenous communities, backed by citizen groups, are protesting against the companies being given patent rights whereas it is these communities that have been responsible for identifying and evolving the use of the plants for food, medicines and other functions.

The knowledge and use of "biodiversity" resides with these farmers and indigenous people, which have shared their knowledge and plants freely. Yet in patent applications, the companies are now claiming 'discovery' and 'invention' and thus exclusive right to produce and sell many "modified" plants and animals -- strains manipulated to incorporate selected foreign genes.

The companies, critics note, in fact have not invented or produced any new gene, merely identifying existing genes in plants and animals and transfer them to others. Third World communities are concerned that in future they will have to pay high prices for these materials, which in the first place they, more than any other party, had after all developed.

The knowledge, innovation and efforts of these communities are not acknowledged, and indeed are discarded, when the legal "intellectual property rights" systems grant patents on genetic and biological materials and on living organisms to corporations.

This injustice is being fought at different levels by farmers, indigenous people and public interest groups. For the past few years, NGOs such as RAFI, GRAIN and the Third World Network have been networking to raise general awareness of the phenomenon of "biopiracy." Indigenous groups and farmers are also getting together to put forward their viewpoints.

In recent months, legal challenges have been mounted against patents granted on biological products and in parallel, new campaigns have been launched by religious leaders and NGOs against patenting life and life forms.

Some groups have recently filed legal petitions or test cases to challenge patents already granted.

* In Washington in September 1995, more than 200 organisations from 35 countries filed a petition at the US Patent and Trademark Office calling for the revocation of a patent given to W.R. Grace company to use a pesticide extract from the Indian neem tree. They argue that the company has wrongfully usurped an age-old biological process used by millions of farmers in India and other countries for generations.

The legal challenge is by the US group, Foundation on Economic Trends led by Jeremy Rifkin. Other key petitioners are the Research Foundation for Science, Technology and Natural Resources Policy (RFSTNRP) and the Karanataka Farmers' Union (both from India), the International Federation of Organic Agriculture Movements (IFOAM), and the Third World Network.

* In Brussels another legal petition was filed in June 1995 at the European Patent Office against a patent it had granted to W.R. Grace for a method that extracts the neem oil for use in controlling fungi on plants.

The three opponents, European Member of Parliament Magda Alvoet, Indian scientists Vandana Shiva of the RFSTNRP, and IFOAM president Herve la Prairie, argue that the patent was wrongly given as the claims for the technique lacked novelty, inventiveness and clarity.

Their petition argues that the invention is now new as the patented method for extracting neem oil is a standard method used for many decades, whilst the anti-fungi effects of neem oil have been known in India for centuries and in public domain and thus cannot be considered a "discovery" as claimed by the company.

* In March 1995, the Swiss Supreme Court, in a landmark decision, ruled that the manzana variety of the camomile plant may not be patented. The Court revoked the patent that the Swiss patent office had granted in 1988 to the German pharmaceutical company Degussa/Asta Medica on its manzana variety.

A Swiss farmer, Peter Lendi, president of the Bio-Herb Growers' Association had moved the court. * In February 1995, the European Patent Office withdrew key parts of a patent granted to a Belgian company (Plant Genetic Systems) and a US company (Biogen Inc.) for genetically engineered herbicide resistant plants. The patent was for plant cells made resistant to glutamine synthetase inhibitors by genetic engineering, and originally covered not only the gene which had been moved from a bacteria to various plants but also all plant cells and plants which contain the gene.

After a challenge by Greenpeace, the Patent Office's Appeal Board ruled the patent may only cover genetically engineered genes and plant cells but cannot extend to a whole plant, its seeds and future generations of plants grown from the cells. The decision seems to imply that in Europe, patenting of genes and cells is permissible but not of seeds and plants. The limits thus set will have serious implications for the biotechnology industry.

Meanwhile, many different groups, including farmers, indigenous people, parliamentarians, religious leaders, and NGOs have begun movements to oppose patenting of all life-forms, or living things.

In India, farmers' movements led by M.D. Nanjundaswamy of the Karnataka Farmers' Union, are campaigning against the patenting of seeds and plants and the operation of foreign grain companies in the country. In 1993, half a million farmers rallied in Bangalore to protest against the implications of the Uruguay Round agreement on intellectual property rights, which opens the door to patenting of genetic materials, seeds and plants.

Indigenous peoples' groups have held regional meetings in South America, Asia and the Pacific, to voice their opposition to the granting of patents to companies on plants and their genes.

Also, at the UN Women's Conference in Beijing, 118 indigenous groups from 27 countries signed a declaration demanding "a stop to the patenting of all life forms" which is "the ultimate commodification of life which we hold sacred." They also demanded that the Human Genome Diversity Project be stopped and patent applications for human genetic materials. be rejected and patents denied.

Parliaments have joined the fight to oppose proposed laws that would legalise patents on life.

In March 1995, India's Upper House of Parliament, the Rajya Sabha, forced the government to defer indefinitely a patent amendment bill that was aimed at bringing the Indian Patent Act in line with the World Trade Organisation's agreement on Trade-related Intellectual Property Rights (TRIPs). The bill would have allowed patenting of life forms.

Also in March, the European Parliament voted against the European Commission's proposed directive on "legal protection of biotechnological inventions". The directive would have allowed for patenting of biological materials and microbiological processes, with only some restrictions. The European Parliament vote was a major victory for NGOs such as GRAIN and for Green groups in the Parliament that had lobbied on this issue for many years.

In May 1995, leaders of 80 religious faiths and denominations (including the Protestant, Catholic, Muslim, Hindu, Buddhist and Jewish faiths) held a joint press conference in Washington announcing their opposition to the patenting of genetically engineered animals and human genes, cells and organs.

"We believe humans and animals are creations of God, not humans, and as such should not be patented as human inventions," they said in a signed statement. The leaders have launched an educational campaign to raise theological concerns over the patenting of life. Religious groups in other countries are also taking up the issue.

Environment and development NGOs have also been increasingly active. Groups like the Third World Network, RAFI and GRAIN have been carrying out educational programmes and active lobbying in the context of the Biodiversity Convention.

A coalition of 14 US groups signed in May a joint statement after a conference at Blue Mountain.

"As part of a world movement to protect our common living heritage, we call upon the world and the US Congress to enact legislation to exclude living organisms and their component parts from the patent system," says part of the Blue Mountain Declaration.

The campaign against life patenting is likely to spread, with more actions taken up by public interest groups at national level, and increased networking among these groups.

At international level the campaign is now focusing on the WTO and the UN Biodiversity Convention -- the two critical fora for setting the principles and legal frameworks on patenting biological materials and life forms.

The TRIPS agreement will have the most decisive influence over national laws. TRIPs has ambiguous language in its clause on living organisms: patenting of microorganisms is compulsory, but plants and animals can be excluded from patents, if protection is given under a sui generis system for plant varieties. This clause is up for review after four years. The concerns about life-patenting and other issues have been voiced at the WTO's Committee on Trade and Environment.

While this committee is being pressed by the EU and other industrial countries to work on and come up with a 'minor package' of recommendations (that would enable them to impose trade restrictions on environmental grounds) for adoption at the WTO's first ministerial conference in Singapore, it is not very clear whether the other issues already on its agenda or raised there would be tackled at all.

The outcome of the WTO/CTE review process will be crucial.

While a few developing countries appear to be engaged on this issue at the WTO's CTE, most developing countries are not serious participants, while the developed countries are using that fora to be seen as heeding the viewpoints of their environment NGOs, particularly those campaigning for trade-related actions. But the developed countries are also blocking consideration of issues like patenting of life forms that may interfere with the profits of their corporations. Some South countries, hoping to get a share of the new technology market in the field of genetic engineering, appear to have an ambivalent view.

The Biodiversity Convention is presently more "friendly", in recognising "farmers' rights" to their knowledge over the use of biodiversity. The rights of indigenous people are also likely to enter the Convention's future agenda. The treaty's references to intellectual property rights is finely balanced between recognising the need to implement IPRs and the need to ensure that IPRs do not block the sustainable use of biodiversity. The challenge for those campaigning against life patents is to ensure that the WTO does not make it compulsory for member countries to patent living organisms, but to develop within the Biodiversity Convention the case against bio-piracy and concrete measures to counter it.