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.
The role of patents in restricting access
As mentioned before, access to PGRs is necessary for the continuous adaptation and improvement of plants for food and agriculture. Innovation in breeding activities takes place in an incremental manner, and is based on the modification of that which is already in existence. As long as there is access to these resources, the cycle that has been in place for hundreds of years can continue. The grant of IP rights, however, threatens to break the cycle and bring it to a complete standstill. If a process to produce a plant is protected, the plant so created would also be protected.
Further, while a patent-holder cannot exercise his/her rights in an area where the patent is not registered, the presence of a patent can prevent the importation of products containing the patented invention. Thus, the total exclusion of competitive products can be effected by the awarding of a patent. Such restrictive practices have resulted in seed companies’ becoming increasingly inventive in their pursuit of monopolies, and have consolidated in perhaps the greatest threat to world food security: the creation of “terminator” technology.
Terminator technology and farmers’ rights
An invention in genetic engineering, owned jointly by a US seed company, Delta and Pine Land, and the US Department of Agriculture, was granted a patent in 1998. It was dubbed the “terminator” gene. The technology employed is known as Genetic Use Restriction Technologies (GURTS). This technology prevents the plant from producing its own seeds, or from growing properly unless a particular chemical is applied. The result of terminator technology will be that farmers can no longer save seeds for the subsequent season, as the life cycle of the seed has been terminated. The farmer has, furthermore, to use the fertilizer and chemicals advocated for the particular crop, as the crop will fail to grow or yield the optimum harvest unless those particular chemicals are applied. The possibilities of this technology are alarming, to say the least. The concept of a non-germinating seed is perhaps the worst-case of all scenarios, as it signifies a break in the cycle of life. On a more commercial level, it will force farmers to be dependent on the seed companies. The plight of the subsistence farmer in developing nations is even harsher. It is estimated that in developing nations, the tradition of saving seed from one cropping season to the next, particularly in crops like paddy, is as high as 90 per cent or more. Also, once the farmer is dependent on a particular type of fertilizer or chemical, he has to buy it irrespective of the price. The monopolistic situation thus created serves only to make it harder for the farmer to continue with his livelihood.
There is no justification for GURT technology, save that it will bring economic benefits to those who own it. Further, GURT technology raises the fear that seeds incorporating V-GURTs will drift to traditional crops grown in neighbouring fields and render them sterile. In addition, farmers whose crops are affected by the V-GURT seeds could also find themselves in unwitting violation of the patent rights of the holder of the patent for the V-GURTS, even though they did not incorporate the seeds willingly. There have been reports of expanding V-GURT technology to include animals and insects. These remain largely unverified. In response to public concerns, Monsanto, one of the largest seed companies in the world, announced that it would not introduce V-GURT technology. However, none of the seed companies has abandoned V-GURT research; it has, furthermore, been reported that V-GURT technology is currently being used in the US.
At a more global level, the International Agricultural Research Centers (IARCs), supported by the CGIAR and the Rockefeller Foundation, have decided not to allow any terminator technology into their breeding material. India has followed, with a clause in its Protection of Plant Varieties and Farmers’ Rights Bill which refuses protection to seeds and planting materials incorporating GURTs. Nevertheless, GURT technology remains a potential, and undeniably real, danger.
The developing country farmer and the developed country farmer: the fundamental difference
While GURT technology and the increased awarding of restrictive patents will affect farmers everywhere, their destructive potential is heightened with regard to the farmers in the developing world. Unlike farmers in developed nations, who are supported by subsidies from their governments, farmers in developing nations are subsistence farmers, and often have no savings to fall back on. Some even incur debt in order to buy the seed for the current planting season, and repay the debt only when the crop is harvested. There is no subsidy system to protect them, nor is there social security. Further, they are now unable to take out bank loans, as many banks will not lend to farmers on account of the latter’s poor credit history. It is, quite literally, a suicidal situation.
Farmers’ rights to traditional knowledge: sharing the benefits
As mentioned above, a fundamental issue appears to be that concepts of ownership vary between North and South. Traditional communities have, for long years, practised the concept of community ownership. This stems from the notion that nature cannot be owned, and that crop varieties are sacred gifts from the Creator. However, today these communities have been forced to accept a world order where all property must be claimed and owned. If they are tardy in claiming their rights, they stand to lose them forever. Among the intellectual property rights held by traditional communities in their folk varieties are included the rights to the information encoded in their DNA as well as knowledge about production and use of their folk varieties.
While it is true that farmers have a right to this knowledge, it is equally true that bio-technical companies, due to the vast resource bases to which they have access, are capable of extracting the maximum benefit from such knowledge. However, the issue seems to be that neither the companies nor the laws to which they subscribe appear to recognize the need to reward the farmers by sharing with them at least some of the benefits. As for benefit sharing, it has been noted that very few companies reciprocate towards the farmers by agreeing to share benefits when they are allowed to access genetic resources or traditional knowledge. The other method for protecting farmers’ rights in this regard is through legislation, the next point for consideration.
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