Experts Still Divided On Influence Of IP On Biodiversity Conservation

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While the global loss of biodiversity is widely recognised, the question of whether the influence of intellectual property rights on the protection of biodiversity is positive or negative does not achieve such consensus. A discussion among specialists on 14 September showed that clear evidence is lacking about the impact of IP rights. Some said the IP system as it stands might be ill-fitted to answer the needs of this particular field.

The Geneva Environment Network and the Quaker UN Office jointly organised a roundtable discussion on IP and biodiversity with the aim of understanding if IP rights are helping preserve biological diversity or, on the contrary, could hinder such diversity. Panellists were also asked to describe the fora where those issues are currently being discussed or negotiated.

Carlos Correa, a law professor at the University of Buenos Aires and advisor on trade and intellectual property for the South Centre, said the protection of biodiversity through the IP system dates back to the end of the 19th century. At that time, United States seed breeders pushed for protection that would grant rights akin to patents, resulting in the US plant patent act of 1930. European breeders followed suit in their wish for protection.

Some countries adopted a sui generis system of protection framed on the concept of patents but with clear differentiations, such as eligibility rules for plant protection that ask that the plant presents novelty, is distinguishable, and has uniformity and stability, he said. This compares to requirements for patents which are: novelty, inventive step, and industrial application. The sui generis systems also have some exceptions, such as a breeders’ exemption, which allows the use of a protected plant variety to breed a new plant, and farmers’ privilege, by which farmers are allowed to save seeds for further cultivation.

In the United States, the so-called Chakrabarty case [pdf] in 1980 led to the patentability of genetically modified organisms and to the patentability of genetic resources, Correa said. The patent system became a tool applicable to biodiversity and this could cover any resources obtained from native biodiversity, he added.

Biodiversity Not the Rationale of the IP System

The crossing lines between IP rights and conservation of biodiversity can be summarised in two main divides, said Isabel López Noriega, legal specialist at Biodiversity International, an NGO with strong links to the Consultative Group on International Agricultural Research. On the one hand, protecting plant varieties through patents or plant breeders’ rights can reduce access because products become more difficult to obtain and more expensive for users, whether they are researchers, breeders or farmers. By undermining access, IP can lead to a loss in biodiversity.

On the other hand, IP rights encourage investment in research and thus new varieties can emerge, which can be used by farmers, she said.

For Wend Wendland, director of the Traditional Knowledge Division at the World Intellectual Property Organization, the IP system is based on the belief that innovation is good for the economy, the public welfare, and indispensable to encourage innovation. However, the protection of biodiversity is not the rationale of the IP system so the question is not so much do IP rights protect biodiversity but do IP rights harm biodiversity, by creating barriers to access, leading to loss of biodiversity or restricting innovation, he said.

“I do not have the empirical data to say that this is correct or incorrect, but I would say the IP system has a different rationale,” he said. It protects innovation , and the discussion should be about how to adapt IP values and principles to the protection of biodiversity, he added.

Protection means different things, Wendland said, and protecting biodiversity with IP “does not mean forcing biodiversity into the IP system.” It is about rediscovering some underlying principles of the IP system and adapting them to that particular field, he said.

López Noriega concurred and said that there is a lack of evidence to support the negative impact of IP on biodiversity loss and no evidence that IP protection is leading to more biodiversity. According to a study conducted by the International Union for the Protection of New Varieties of Plants (UPOV), plant protection leads to more varieties, but she said that on the genetic level this is disputable, as “genetic information is basically the same.”

However, a set of other studies on the impact of different types of protection conducted in the US and the European Union indicated that the relationship between IP and innovation in plant breeding is very weak, said Correa, adding that more studies are needed.

Negative Impact, with a “Self-Correcting” System

The Enola bean is a good example of the negative impact of patents, Correa said. The Enola bean was patented by a US breeder who during a trip to Mexico bought two bags of yellow beans, planted and selected them, then applied for a patent on yellow coloured beans, which he named after his wife. The patent was granted and Mexican farmers were then unable to export the yellow bean to the US, he said. It was estimated that 10,000 families in Mexico were affected by this patent. The patent was later challenged and successfully revoked after a nine-year judicial battle and corresponding legal fees, he said.

Correa also cited the turmeric case where a patent was granted in the US on turmeric even though the plant was known in India for centuries for its diverse uses. India was able to prove through old literature that the plant had been used for a long period of time, so the patent was revoked.

The problem with examples and case studies, said Wendland, “is that there are very few of them.” Broad lessons are being drawn from very few studies and that is a danger, he said. It is important to note, as the Enola case has shown, that the patent system is self-correcting, he said, although “nine years was much too long.” As a result of the turmeric case, India established a traditional knowledge digital library, Wendland said, and it has been very successful in denying patents or withdrawing them at minimal cost, he said.

International Fora

Meanwhile, discussions in the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) “have made tremendous progress in the last 18 months,” Wendland said. Intersessional working groups have helped delegates to draft negotiating texts on traditional knowledge and folklore that could lead to a set of international legal instruments in 2012. In July, delegates in the IGC decided on a new mandate for the next biennium, he said, to be confirmed by the WIPO General Assembly this mont (IPW, WIPO, 22 July 2011). The next WIPO General Assembly in 2012 could decide to convene a diplomatic conference, he said.

Genetic resources are lagging behind in the IGC negotiations and a draft treaty text still has to be constructed. Delegates are working from two documents: one set of draft objectives and principles, and one set of options for future work. Wendland said at the roundtable that genetic resources are “the most difficult theme of the IGC”. According to the provisional IGC work plan decided at the last IGC meeting in July, the IGC session next February should be solely on genetic resources and will be an extended eight day session in order to undertake text-based negotiations and consider options for a draft legal text.

At the World Trade Organization, Article 27.3b of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) was supposed to be reviewed five years after the 1995 implementation of TRIPS but never was finalised, said Correa. The latest development is a proposal by the Bolivian delegation to prohibit patents on life, he said. The Bolivian delegation issued a proposal in March 2011 to “amend Article 27.3 (b) to prohibit all forms of patenting of life and parts thereof as an essential part of the mandate in the Doha Development Round and as an important contribution of the WTO to the development objectives” (IPW, WTO/TRIPS, 16 June 2011).

Another development, Correa said, was the proposal by developing countries, supported by least developed countries, to introduce an amendment to TRIPS to impose a disclosure of origin obligation in patent application with genetic resources claims. The draft decision(http://www.ip-watch.org/weblog/wp-content/uploads/2011/06/TRIPS-CBD-TNC-doc-April-2011.pdf) of April 2011 asks for a new Article 29bis of TRIPS to enhance mutual supportiveness between the TRIPS agreement and the UN Convention for Biological Diversity (CBD). This amendment is strongly opposed by some countries, in particular the United States, he said.

During the last Conference of the Parties (high-level meeting) of the CBD in October 2010, the parties adopted the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the CBD, said Ivonne Higuero, programme coordinator for the United Nations Environment Programme Regional Office for Europe (IPW, Biodiversity/Genetic Resources/Biotech, 29 October 2010). The protocol is a step in the right direction, she said, and it is important that synergies be developed between the Nagoya Protocol and the IGC, she said.

The International Treaty on Plant Genetic Resources for Food and Agriculture of the UN Food and Agriculture Organization has set up a multilateral system for access to genetic resources and benefit-sharing. Some tricky points remain, said López Noriega, such as the fact that the user of a genetic resource obtained from the multilateral system cannot subject that genetic resource to IP rights in the form received, and this interpretation is “pretty controversial,” she said. Some countries think that if you isolate a gene, you can patent that particular gene.

GIs as a Way to Promote Biodiversity

An EU delegation representative in the audience said geographical indications have led to may success stories in conservation of biodiversity. López Noriega answered that in some cases GIs promote “mono cropping” by favouring one type of product in a geographical zone, and this led to neglecting the rest, and ultimately to a loss of biodiversity.

Correa added that GIs can only be useful when the consumer is prepared to pay an additional price. In some cases, a GI can also hinder innovation. For example, he said, the French wine industry, locked in its controlled designations of origin (appellations d’origine contrôllée) found itself at a disadvantage compared to other countries such as South Africa which still had an innovative capacity.

GIs have been discussed in the context of the TRIPS for years with a clear divide between countries strongly in favour of GIs, such as Italy, France and Spain, and countries that disagree with the expansion of high-level GI protection, such as the US and Australia. In April, although countries had succeeded in producing a single draft text on an international register for GIs at the WTO, dissension increased (IPW, WTO/TRIPS, 21 April 2011).

Intellectual Property Watch may be reached at info@ip-watch.org.

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