Philippe Cullet

published in
22 Oct. 1999, p. 90

For an alternative patents regime

There is a strong case for the revision of the TRIPS agreement concerning the protection of plant varieties, drawing lessons from India with regard to the development of a sui generis system.


The agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), one of the treaties administered by the World Trade Organisation (WTO), has been a subject of controversy in India. Membership of the WTO and the ratification of TRIPS have s ignificant implications for developing countries. Public awareness about the implications of TRIPS with regard to bio-piracy heightened following the patenting in some countries of neem and its various properties and the application for a patent on some medicinal properties of haldi (turmeric) in the United States, which was turned down after a review.

The WTO ministerial conference slated for November 1999 in Seattle, whose member-states are to decide on the launch of a new round of trade negotiations, will raise the stakes once again. More significant is the fact that India has to prepare for the imp lementation of TRIPS and initiate a broad debate on the issue since any legislation to protect a plant variety should, theoretically, be adopted before the year-end. The issue of protection of plant varieties has received a fair degree of attention. And a fresh look at the provisions concerning plant varieties and the responses being proposed in India is in order.

TRIPS provides for the availability of patents for inventions, whether they are products or processes, in all fields of technology. Member-states can restrict patentability to some cases. For instance, they can exclude plants and animals from patentabili ty. But TRIPS mandates the introduction of a form of legal protection on plant varieties. Member-countries have the liberty to "provide for the protection of plant varieties either by patents or by an effective sui generis system or by any combina tion thereof" (Article 27.3.b). This constitutes one of the few areas where countries are given some margin of appreciation in devising a protection system.

There has traditionally been no legal protection for plant varieties in India or at the international level. Seeds were, for instance, exchanged among farmers and countries on the basis of the principle that the means of enhancement of food security shou ld not fall into the domain of commercial interests. This free sharing of knowledge has in no way hampered the development of new plant varieties or agricultural research. Indeed, the hybrid varieties of the Green Revolution, celebrated as the ultimate s olution to the challenges of improving food availability per capita, were developed entirely on the basis of free access to and free sharing of knowledge pertaining to biological resources.

In Europe and in North America, the principle of free access to information has been progressively restricted following pressure from the private sector for the establishment of a system of private property rights. This has been concomitant with the decl ine of agriculture as a subsistence activity and the overall commercialisation of the primary sector. In India, socio-economic conditions differ dramatically from those obtaining in the countries that are part of the Organisation for Economic Cooperation and Development (OECD). The primary sector still constitutes more than a quarter of the gross domestic product (GDP) and employs about two-thirds of the working population. Further, agriculture is still mainly a subsistence activity. The current Patents Act reflects both the traditional practices of free exchange and the socio-economic conditions of the country. It provides, for instance, that methods of agriculture or horticulture cannot be patented. Further, in the case of substances intended for use as food, it restricts patentability to the process and provides for a shorter duration of the rights.

The TRIPS agreement broadly reflects the current legal situation in the OECD countries. It thus imposes a significant burden of adaptation on countries such as India. In a few cases, it allows member-states the liberty to determine the form of protection (as in the case of plant variety) they want to adopt. In fields such as pharmaceuticals, patent protection is compulsory. If the new regime seems inappropriate to the local situation in India, the only remedy is to lobby for a change in the agreement or for India's withdrawal from the WTO.

Here the focus is on the current proposals at the governmental and non-governmental levels concerning the development of a sui generis system. All these proposals fall short of constituting appropriate alternatives for India. Efforts should be dir ected at the development of such an alternative. While fighting patents and working towards a reform of the WTO agreements can be pursued in the long term, it is of utmost importance to use the scope provided in the treaties.

The government has for the past several years been in the process of drafting a Plant Variety Protection and Farmers' Rights Act, which is to constitute a direct response to the TRIPS agreement. The draft mainly focusses on the definition of formal plant breeders' rights and follows closely on the model of the International Convention for the Protection of New Varieties of Plants (UPOV Convention). The UPOV Convention specifically seeks to develop plant breeders' rights. Patents and plant breeders' righ ts are conceptually similar. Both seek to give the private sector incentives to enter the seed business. Plant breeders' rights are, however, less firm than patents and provide some exceptions to breeders' rights in favour of farmers.

The draft Act provides, as in the case of the UPOV Convention, that protection will be available only for varieties that conform to the criteria of novelty, distinctness, uniformity and stability. Further, the draft explicitly states that, in order to be protected, the 'new variety' must be clearly distinct by at least one essential characteristic from wild relatives and traditional cultivars. In this sense, it is geared to providing incentives to the private sector to engage in the seed business.

Although the title suggests that the Act also provides for farmers' rights, it focusses on plant breeders' rights, which are inherently incapable of recognising farmers as breeders. Farmers are seen as cultivators and managers of agro-biodiversity, whose varieties cannot be protected under the Act. At the most, farmers are granted the rights to save, use, exchange, share and sell the produce of a protected variety. These do not constitute novel rights but rather drastically restrict existing rights.

Non-governmental activists have been active in the field of plant variety protection. Their efforts have focussed on both practical activities and policy development. Significant attention has been devoted to the setting up of biodiversity registers for benefit-sharing and in order to develop alternative legislative frameworks.


Biodiversity registers

Biodiversity registers have been proposed partly to fight patent applications. The process has been promoted on a large scale by the Centre for Ecological Sciences in Bangalore but has also been undertaken independently, as in Pattuvam village in Kannur district of Kerala.

The idea is to document existing plant and animal species and knowledge relating to these resources. This can then be used to show that a given patent application uses information which is already part of the common body of knowledge in use in a given co mmunity or in the country in general. This is enough to defeat a patent application since the patents system is premised on rewarding 'inventions'.

Biodiversity registers are of great importance in fighting unwarranted patents. However, they do not contribute to the development of an alternative to the patents system as they are conceived exclusively as a defensive strategy against patents. They ser ve to show that the knowledge already exists and thus cannot be patented, but do not provide any other form of protection for this existing knowledge.



As a corollary to the setting up of biodiversity registers, the concept of benefit-sharing has been put forward. Its proponents include, for instance, the M.S. Swaminathan Research Foundation in Chennai. Benefit-sharing is directly linked to the idea tha t the knowledge of farmers and local communities is not susceptible to fulfilling patenting criteria or even that it should not be included in the patent system. It thus seeks simply to provide a form of monetary compensation for the use of local people' s knowledge. The concept of benefit-sharing has been enshrined in the proposed Biological Diversity Act, which provides that the national biodiversity fund shall be utilised, for instance, for "channelling benefits to the conservers of biological resourc es, creators and holders of knowledge". There is no hint that the creators and holders of knowledge may be the owners of these resources and should thus have the right to determine whether they want to sell and at what price.

Overall, benefit-sharing constitutes a useful strategy to mitigate some of the undesirable impacts of patents on biological resources for current holders of biodiversity-related knowledge. Without benefit-sharing, such knowledge may be 'taken' from its c urrent holders without any form of acknowledgement or compensation. However, benefit-sharing does not contribute to the definition of an alternative regime to patents. Indeed, while it seeks to limit the impact of the introduction of patents in the field of biological resources, it does not seek to provide any rights to current holders of knowledge. In this sense, it assumes that local people do not have intellectual property rights (IPRs) over their knowledge and that a monetary reward constitutes a su fficient compensation. Further, benefit-sharing is not necessarily a practical or desirable solution since there are many instances where the source of the materials used is very difficult to trace to a particular community, region or even country. This is because most people around the world depend to a large extent on plants which are originally from other areas for some of their staple food. Since centuries may have passed since the first transfers took place, it is hardly feasible to trace the varie ty to its original source even if this was deemed to be desirable.

The dangers of benefit-sharing are also illustrated by what is seen by some as a model benefit-sharing transaction. In the case of Aarogyappacha, the Tropical Botanical Garden and Research Institute near Thiruvananthapuram decided unilaterally that the m anufacturer of the drug award the Kani tribe, who shared their knowledge of the anti-fatigue properties of the plant, 50 per cent of the licence fee and royalty. If the percentage awarded to the Kanis is high, this transaction involves the transfer of th e IPRs of the Kanis to the institute. While the monetary compensation is welcome, the rights should stay with the first holders of the knowledge.


Community IPRs

It has also been suggested that India should develop legislation which would extend the circle of potential holders of patents and make patents available to local communities. Proposals by the Research Foundation for Science, Technology and Natural Resou rces Policy, New Delhi, and by K. Abdul Latheef of Kozhikode have been circulated. Community intellectual property rights are premised on the idea that the current patents system only recognises the northern industrial model of innovation. The idea is th erefore to foster intellectual property laws which recognise the more informal, communal system of innovation through which farmers and indigenous communities produce, select, improve and breed a diversity of crop and livestock varieties.

These proposals are significant insofar as they seek to give local holders of knowledge actual property rights. However, they do not constitute appropriate models for the development of an alternative to the patents system. This is due to the very nature of patents as monopoly rights, which cannot reward several actors. By granting local communities the right to seek patents, they are put on a par with any private company which is in this business. This implies that even if farmers manage to patent some of their innovations, they are bound to lose out in the long run since private companies will always be able to innovate faster than them.

All the proposals reviewed focus on fighting patents. However, the TRIPS agreement does allow for an alternative form of protection for plant varieties.


Towards an alternative system

Exclusion of patents in agriculture has traditionally been premised on elements of public morality, the need to foster innovations at all levels from the smallest farmer to multinational companies and the need to restrict the commercialisation of sectors dealing with the most basic needs of humankind, such as food and healthcare. While these characteristics are valid even today, TRIPS now requires the introduction of a form of plant variety protection.

The introduction of patents in agriculture should be avoided in the current socio-economic context characterised by the existence of a variety of actors involved in agricultural management and agricultural innovations. Patents are by definition incapable of apportioning benefits in a manner that fits this reality since the grant of a patent implies that the patentee derives all the benefits associated with the invention. Patents also have the undesirable side-effect of implying that all knowledge which is not patented is in the public domain and thus freely available. Any knowledge which cannot be protected by patents because it is not 'state-of-the-art' is thus deprived of legal protection. This is very unfortunate because it gives the impression that the work of the managers of biodiversity is devoid of value while the work carried out in laboratories is the only one which adds value to the final product. Finally, patent rights are not known to foster the conservation or sustainable use of biologica l diversity.

Current proposals clearly do not constitute a full alternative to patents. The plant variety legislation is closely modelled on the UPOV Convention and recognises plant breeders' rights which are, like patents, monopoly rights meant to foster the involve ment of the private sector in the seed industry. Some of the other proposals are extremely interesting in the context of a patent regime but do not contribute to the development of an alternative. Clearly, India should develop an alternative system, not one modelled after UPOV. The UPOV system was developed by European countries at a time when subsistence agriculture had already mostly disappeared and when an overwhelming percentage of the population did not work in the primary sector anymore. These con ditions do not obtain in India.

An alternative regime should have some of these characteristics: First, it should provide for the establishment of property rights for all actors involved in agricultural management and seed improvement. To this end, it should aim at protecting not only the interests of corporate biotechnology firms and seed companies, as is the case with patents and plant breeders' rights but also the interests of farmers, who are among the major seed producers in India. One solution would be to provide a two-pronged r ecognition of commercial breeders' rights and farmers' rights, a proposal made at the international level a decade ago but which is still being discussed. Concerning farmers, the aim should be to protect farmers' current techniques or varieties and to al low them to derive benefits from any improvements they will carry out.

Secondly, the system should provide for non-monopoly rights. This directly derives from the fact that various actors contribute to agricultural innovation and that each of them should be entitled to property rights over their inventions, whether they are state-of-the-art or not. This would, for instance, imply that while commercial breeders can have the right to market their varieties, farmer-breeders can at the same time have the right to use their own varieties, exchange them and sell them. In this fr amework, different property rights systems exist side by side. A non-monopoly system implies that no single entity derives all the benefits associated with a given invention and that various inventors can have concurrent rights.

Thirdly, an alternative regime should recognise the fact that not all inventors seek to commercialise their knowledge. Indeed, one of the major shortcomings of the patent system is the assumption that the only incentive for innovation is the possibility of commercialising an invention and receiving monetary returns from it. Some farmers may try to take advantage of the possibility of commercialising their knowledge, while others may not. This fact should therefore be recognised in the proposed framework.

Fourthly, the TRIPS agreement requires that the alternative system should be 'effective'. This should not be understood as implying only the existence of legal enforcement procedures but should be understood in a broader context. While the WTO has assume d disproportionate importance in international relations partly because of the existence of a stringent dispute settlement system, plant variety protection is not regulated exclusively in TRIPS. Therefore, it is imperative that an alternative system be c onstrued in the broader framework of India's international obligations which include, for instance, the Convention on Biodiversity (CBD). Of particular relevance is Article 1 of the CBD which states that the aims of the Convention are the conservation an d sustainable use of biodiversity. The alternative system should thus contribute to the sustainable management of plant varieties.

Overall, the TRIPS agreement gives member-states the liberty to adopt plant variety protection regimes which are not based on patents. Given the current socio-economic conditions in India, this possibility should be fully utilised to strengthen the posit ion of all innovators in the field of agricultural management. The current draft legislation, which is directly based on the UPOV Convention, should be abandoned because it provides for monopoly rights which will only benefit the private sector industry. A novel version should be drafted with a view to granting meaningful property rights to all relevant actors and foster the sustainable management of biological resources.