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