Patent paradox

Developing countries may get trapped by the brazen and unabashedly faulty bio-patenting model that a US firm is flaunting

Published: Friday 15 December 1995

Patent paradox

-- (Credit: Rustam Vania)ETHIOPIA, one of the poorest nations of the world, contains a treasure trove of a particular plant species - C arabica, a coffee germplasm. But it cannot develop the germplasm commercially and mint money by selling high-tech coffee varieties to the rich inclustrialised countries. This is because Escagenetics Corp, a us biotechnology firm, holds patent claims on all transgenic (genetically engineered by inserting a foreign DNA) varieties of C arabica. The varieties have been formed using the 'Agrobacterium' method developed by the company.

The us Patent and Trademark Office (PTO) rules that all such C arabica varieties will have to be licensed through Escagenetics Corp. And cash-strapped Ethiopian authorities will never be able to afford the steep licensing fees. Of course, it can ignore the us patent and go ahead with its job, but then it will be prohibited from selling its coffee beans to the us or any other country where the patent is legally recognised.

Rural Advancement Foundation International (RAFI), an NGo based in Canada specialising in plant genetics and indigenous people's rights, has recently conducted a study examining the plant utility (industrial) patents granted by the US PTO from 1985 through mid-1995. The us utility patents are considered to be the most powerful intellectual property protec- tion available for plants and plant-related inventions. RAFI focussed on the us model mainly because it is being aggressively touted in the global market by the powerful industrial lobby as the ideal system which the signatories of the World Trade Agreement "should adopt".

It is by no means difficult to fathom the reason behind their overwhelming interest in toeing the us line. The RAFI report unearths shocking details of how majority of patent claims are stretched to illogically broad limits, solely for the benefit of greedy industries. A single patent holding corporation, which identifies new genes, can claim 20 years of exclusive control over that gene in any plant including derived seeds and tissues.

Multiple varieties, or even an entire genus or species may be covered in a single application. This system is fraught with danger, warns RAFI. It risks leaving the blossoming world of plant biotechnologies entirely in the hands of a couple of profit-hungry business sharks. The researchers, plant breeders and molecular biologists - all are literally locked out of it. They can ba4 tread into this territory without runni the risk of 'infringing patents'. Farl too, are severely constrained by i patent statutes. "Whoever sells a A ponent" of a patented item is guilt% infringing the patent, says the lall other words, farmers who replant or sell seed harvested from a proprietory variety can be dragged to court on charges of "damages caused to the patent holder".

The US PTO began issuing utility patents for all plants since 1985. The decision to grant industrial patent e plants stems from the us SuprI Court's landmark ruling in I (Diamond vs Chakroborty) human-altered micro-organisms patentable subject matte., J ust like other industrial invention like a c puter chip. This gave the biotechnol industry legal means to gain excl monopoly control oN -1, isms, and opened floodgates to the patenting of all life forms - micro organisms, plants, animals and human genetic material.

RAFI made a determined bid to form a comprehensive database on industrial patents based on,patents issued at the PTO during the last decade. It met with a baffling maze of information which make no sense at all. First of all, identi- flying industrial patents is a mindbog gling experience. RAFI's data was based n the patent classes for transgenic LWC non-transgenic plants determined the PTO. During the course of the which, however, the RAF1 team found that these classes do not provide a com !Whensive listing of plant industrial .4tents, especially those involving transgenic techniques. The team found out that several non-PTO classifications in fact contain plant patents.

The PTO definition of a 'transgenic t patent' only claims on entire Rtts that have been altered with for DNA. But many of the recent itech patents make sweeping claims ,h, if closely examined, are found to Vueeding the originally set limits by rgins. RAH alleges that the PTO is responsible for this. Calgene the giant biotech firm, for example, holds patent on napin - a germ plasm producing transformed Brassica. The PTO has not listed it as a plant patent because it claims rights specifically on 'seeds'. But this is completely illogical, contends RAR. Exclusive controlAgver the seed inherently means control over the plant. And Calgene has taken full - advantage of the PTO's 'vague' policy. It claims that its patent 11 covers three seed specific promoters, including napin, in DNA constructs and the Brassica host plants containing these constructs". So it has conveniently established ownership of all genetically engineered plants in the Brassica family, which includes rapeseed, broccoli, cauliflower, cabbage and brussels sprouts!

The other glaring inconsistency is the fact that most of the patent holders are corporations based in the industrialised world. The developing world is virtually unrepresented even though much of the patented germwide berth and broad plant patents & CO. life a CO. plasm actually originated there. A few patent claims do come from tjie South, but in all these cases, the assignee of the invention is always a Northern industry.

Even PTO recognises the inherent irregularities in its classification of plant patents. Gary Benzion, a patent examiner at the PTO was reportedly aghast at the large number of transgenic plant patents (nearly 200) that RAM managed to uncover. He and his colleagues cite the "rapidly evolving nature of modern biotechnologies" as the root cause of this confusion. In fact, the PTO is currently restructuring the plant utility patent classes to give it a more viable form.

Despite these very obvious defects in the us model, a strong iDternational pressure is building up to force the world - community to adopt plant patent regimes based on it. And none other than multinational enterprises are behind this crafty move. "The industrial patents are an important marketing tool for them," declares RAH. The ones who would bear the brunt of this are the developing nations who are signatories to the World Trade Agreement. They are now obliged to adopt "effective" intellectual property standards for plants and micro-organisms over the next five to 15 years. The us industrial patent System is being aggressively promoted before them.

RAFi has expressed serious doubts whether the developing nations can resist the pressure that this situation entails. It is critical that they do. The organisation warns that these nations would be courting disaster if they adopt the us model. "The uncertainties present in the us system may only be magnified when these same issues are presented for resolution in international trade agreements, which anyway, have inherent difficulty in resolving disputes, or in the courts of the developing countries neither receptive to resolving claim of ownership to plant generic resources nor equipped to resolve such claims, " is the grim verdict pronounced by the RAF1 report.

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