Africa proposes

Recognise community knowledge. Do not patent life
Africa proposes
-- Most patents are held by Northern corporations and used primarily to control the market as a monopoly. The World Bank data on the number of patents recorded in 91 countries (categorised into those belonging to resident and non-resident applicants) shows that out of 3,125,603 patents recorded, 301,177 -- or 9.6 per cent -- are registered in developing countries, the rest (2,824,426) being in industrialised countries. Of these, only 6,956 -- 0.2 per cent of the total and 2.3 per cent of those registered in developing countries -- belong to residents. Patents recorded by non-residents, who apply only to control export markets in developing countries, are 294,221 or 97.7 per cent of the total in those countries.

Africa, viewed separately, fares worse. Out of its total of 138,284 registered patents, only 759 (0.5 per cent) are by residents. 137,523 (99.5 per cent) are by non-residents, aimed at keeping the African market captive.

The failure of developing countries to look after their own interests is even more glaring in the area of community inventions and innovations. Their own national laws recognize only private Intellectual Property rights (iprs). This is why they allow iprs of non-resident entities from industrialised countries to control their internal markets. Worse, these very entities simply take technologies created by developing country communities and protect them as their own.
THE HEART OF THE PROBLEM Article 27.1 of the trips agreement stipulates that an invention, whether a process or a product, in any field of technology, can be patented provided that it is new, involves an inventive step and is capable of industrial application. But ambiguities remain. How about the chemical in a medicinal plant that has just been purified and characterised? Is it new? It is certainly new to science but is it new to nature? When we say that "invention" is patentable but "discovery" is not, do we not exclude from patentability such "newness" as is characteristic of the chemical just extracted from a plant? Many drugs pharmaceutical corporations produce would not have been patented since they occur in nature, and most of them have previously been in use, albeit not chemically characterised, by local and indigenous communities.

Even the genes introduced into other species through modern biotechnology are not invented, but merely discovered in other species and 'introduced' thereafter. For this reason, only if a novel gene that does not occur in any organism were constructed de novo from synthesized molecules would there be a biotechnological invention. Therefore, the "field of technology" referred to in trips should not include modern biotechnology. Under Article 34 of trips, it is possible to put the onus of proving that a new process used to make a product was not the same one as that patented, upon the person in possession of the former product. This may not sound unreasonable when we think of the process as a machine or a chemical reaction. The problem arises with patented living things that, through natural reproduction, can transfer their genes into non-patented individuals, thereby not only contaminating the latter, but also criminalising their owners.
THE AFRICAN GROUP'S AIM On June 4-5, 2003, the African Group presented a proposal to the trips Council. It wishes to prohibit the patenting of "plants, animals, microorganisms, essentially biological processes for the production of plants or animals, and non-biological and microbiological process for the production of plants or animals". If adopted, the proposal would remove the need for the legal protection of community rights so far as genetic resources, biological knowledge and technologies are concerned, which are given free to any one who wishes to use them -- a universal trait of community life.

The Group has emphasised that Article 27.3 (b), which makes the immoral patenting of life compulsory, is a contravention of Article 27.2, which allows countries not to patent if found "necessary to protect ordre public or morality...". This means the Group doesn't expect patenting of life prohibited globally, but only in the South, and indeed in any country that so wishes. It is in this context that their proposal to add a third paragraph to Article 29 of trips -- which requires that a patent applicant discloses "the country and area of origin of any biological resources and traditional knowledge used or involved in the invention, and to provide confirmation of compliance with all access regulations in the country of origin" -- becomes consistent with the prohibition of patenting life.

The attempt to protect the interest of indigenous and local communities is presented as a draft "Decision on Traditional Knowledge", which includes the rights to genetic resources, knowledge and technologies embodied in the Convention on Biological Diversity, the International Treaty on Plant Genetic Resources for Food and Agriculture and the African Model Law for the Protection of the Rights of Local Communities, Farmers, Breeders and for the Regulation of Access to Biological Resources.

The African position is, therefore, consistent and necessary if trips is to serve not only the industrialized countries, but the whole world. Otherwise, it would remain an instrument that breeds disaffection in the poor South through established international law.

Tewolde Berhan Gebre Egziabher is director general, Environmental Protection Authority, Ethiopia
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