Subject: Conquest by patents
Date: Wed, 8 Sep 1999 00:17:11 -0400
(From: The Pakistan Observer, Islamabad, Aug 22, 1999)
CONQUEST BY PATENTS
By Devinder Sharma
Notwithstanding India's call for a review of certain provisions of the Trade-Related Intellectual Property Rights (TRIPs) at the forthcoming Seattle Ministerial conference, the United States is not willing to open up the controversial WTO-related patent regime in the new round.
For the US, an unequal and unjust patent regime being enforced globally is perhaps an easy way to demonstrate its economic conquest of the South. After all, patents provide monopoly domination not only through technological supremacy but also by extending control over the biological wealth and the traditional knowledge of the gene-rich developing countries.
Not to be left behind, the European Union too has joined the mad race to claim broad-spectrum patents over transgenic plants and animals, and also on human genes and cell lines. With the European Patent Office announcing the acceptance of such patent claims from September 1, the world is fast moving towards an era where life forms, including plants and animals, will be remote-controlled by a few private conglomerates.
Bolstered by the recent developments in Europe, the US is sure to block every move to renegotiate the TRIPs Agreement. A spokesperson for the US government has already made it clear that America finds no justification in India's repeated plea to make the TRIPS pact more compatible with Multilateral Environmental Agreements like the Convention on Biological Diversity. At the same time, India is asking for a balanced approach in promoting developmental objectives of intellectual property rights, through the mechanisms of transfer of technology from the holders of proprietary technology that needs to be made mandatory. India's stand has support from other developing countries including Brazil, Costa Rica, Egypt, Honduras, Indonesia, Kenya, Pakistan and the Philippines.
Unmindful of the growing hostility in the developing countries over the increasing tendency to seek patents on 'indigenous knowledge' and products that have been in practice over centuries, the US finds nothing wrong with its outdated patenting regime. Still worse, it refuses to share the benefits by way of transfer of technology or provide adequate compensation to the communities or countries from where the resources and the accompanying knowledge were drawn. Nor is it willing to provide additional protection for geographical indications of origin for products such as basmati rice and certain varieties of tea, apart from the limited wines and spirits.
While the US is not convinced with the arguments being advanced by the developing countries for placing TRIPs into another round of intellectual property negotiations to be launched at Seattle, it has categorically stated that its interests lie much more towards ensuring effective implementation and enforcement of the agreement. "This is for us is the single most important thing about the TRIPs Agreement now," an official said recently.
For the US and for that matter the world's richest trading block, the Organisation for Economic Cooperation and Development (OECD), the thrust is on ensuring that the patent laws are globally harmonised making it easier for the rich and the industrial countries to amass biological wealth and the traditional knowledge that comes along with it. Meanwhile, the developing countries are being asked to seek answers to their queries at several upcoming reviews of implementation and substance of the agreement. The TRIPs Council is presently reviewing Article 27.3(b) of the agreement, which allows member countries to exempt from patentability plant and animals but to provide protection through an effective "sui generis" system.
What is not being realised is that while the developing countries are engaged in ascertaining whether the plant varieties need to be patented or protected under national legislations, the US and Europe are meanwhile drawing patents on the genetically-engineered varieties thereby creating hurdles in future scientific research in agriculture in these countries. Developing countries are obliged to implement Article 27.3(b) to provide some sort of protection to plant varieties under an "effective sui generis" system without realising that the "sui generis" that is being talked about ends all privileges by Jan 1, 2000. In other words, the TRIPs Agreement is very cleverly asking member states to grant legal monopolies over the very basis of food security: crop biodiversity.
Like other developing countries, India too has failed to see the writing on the wall. Its assertion that instead of harmonising international patent laws what is more important is to keep the intellectual property rights on plant biodiversity at the minimal is not going to be an effective bargaining tool. Instead, India should support the Philippine initiative which is opposed to patents on life forms, and argues that the "sui generis" system proposed under Article 27.3(b) does not have to be in line with the Union for Protection of New Plant Varieties (UPOV). It, therefore, calls for the 1999 TRIPs review to get biodiversity out of the jurisdiction of WTO in order to protect the rights of the farmers and local communities.
Unfortunately, the secretariat of the Convention on Biological Diversity (CBD) which should actually strive to end the free plunder of genetic resources of the South and in turn uphold the provisions enshrined in the legally binding treaty, is in all probability acting at the behest of the multinational companies. At no stage has the CBD made a forceful representation for keeping the biological diversity out of the purview of the patent regime. Nor is it likely to for the simple reason that all its heads and senior executives come from the developed countries and are therefore protective of their own national interests.
The recent decision of the scientific and technical body of the CBD to indirectly approve the application of the infamous terminator technology (or what the companies call as controlling gene expression) is a pointer towards the CBD's hidden linkages with the multinational seed and biotechnology companies. It is time that the farmers' and other groups in the Third World call for a change in the CBD hierarchy to make it more democratic and transparent. Member states too have to express their displeasure at the failure of the CBD to fight aggressively to protect the rights of the local communities in the developing countries.
Accepting UPOV is the first step towards an economic hara-kiri. Although UPOV now has an effective strength of 40 member countries, mainly industrialised nations, it provides strong monopolies to the seed companies and restricts farmers' rights and privileges. Developing countries therefore must keep out of UPOV in their own economic interest. Or else, these poor and under-developed economies will make it much easier for the multinational companies to pronounce their conquest over the Third World. #
(Devinder Sharma is a New Delhi-based food and trade policy analyst)
Address: Post Box # 4, New Delhi-110 024, India.
Tel: 91-11-656 2326
Email: dsharma@del6.vsnl.net.in; dsharma@isid.delhi.nic.in