IP And Sustainable Technology Debate Centres On Access And Benefit-Sharing

As the need to protect the global environment grows, questions are being raised about how intellectual property might help incentivise the development of the right kinds of technology and its transfer to places that need it most.

These policy issues are under debate in a range of fora this year, including the UN Convention on Biological Diversity (CBD), the UN Food and Agriculture Organization (FAO), the World Intellectual Property Organization (WIPO), and the World Trade Organization (WTO).

One negotiating process already moving this year is the attempt under the UN Convention on Biological Diversity to create an access and benefit-sharing (ABS) regime. Mega-diverse developing countries are pinning hopes on the regime for protection against the misappropriation of their most valuable genetic assets, while industry groups have raised concern that added regulation could increase uncertainty in an already uncertain market.

A meeting of the ABS working group from 2-8 April generated much documentation but little consensus, according to sources. This means there is much to do in the two remaining scheduled meetings of the working group – on 2-6 November 2009 and 18-24 March 2010 – before the October 2010 deadline for negotiations. The documentation is being written as a draft negotiating text.

Within the CBD, a broad framework with guidance for ongoing work is the most likely outcome by 2010, a CBD secretariat official told Intellectual Property Watch. “We’re not going to solve it [the ABS issue] in the next 18 months,” he added.

The UN Food and Agriculture Organization (FAO) is actively engaged in a similar initiative for access and benefit-sharing as well as cataloguing genetic resources used in agricultural production. The International Treaty on Plant Genetic Resources for Food and Agriculture launched its first call for proposals under the benefit-sharing fund in January of this year (IPW, Biodiversity, 14 January 2009).

Organisations already looking at the relationship of intellectual property to development are beginning to focus more and more on biotechnology and ecological technology as well. For example, the World Intellectual Property Organization (WIPO) will host its first conference on global challenges – including climate change, environment, and food security – on 13-14 July. Also at WIPO, technology transfer is being addressed through the Committee on Development and Intellectual Property.

WIPO’s continuing work on genetic resources and traditional knowledge also will be watched. The detailed gap analyses produced for the last WIPO meeting on the issue in October still did not prevent a late-night deadlock (IPW, WIPO, 18 October 2008) over the substance and process for achieving agreement on the topic.

The WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) next meets from 29 June to 3 July, with informal consultations likely to take place beforehand. Key debates focus on how traditional knowledge might be protected from misappropriation, and if new kinds of IP legislation are needed to make such protection viable.

At the WTO, there is ongoing discussion of codifying some CBD-related language into the Trade-Related Aspects of Intellectual Property Rights (TRIPS) agreement, such as by amending TRIPS with a requirement to disclose the origin of any genetic resources used in patent applications. Some 70 countries supported the initiative independently, plus an additional several dozen in a strategic alliance uniting the drive to discuss other TRIPS-related issues.

However, movement at the WTO on IP is unlikely before progress is achieved in other issue areas under negotiation in the ongoing Doha Round of trade liberalisation talks.

The World Health Organization also is discussing access and benefit-sharing, in relation to viruses used in making vaccines for avian influenza (IPW, WHO, 8 December 2008). The ongoing debates there, expected to pick up again formally on 15-16 May, could influence and be influenced by debates at the CBD, according to sources.

Financing Biotechnology; Industry Woes

As public initiatives on the environment and IP move forward, biological and ecological technology innovators in the private sector remain concerned about their futures.

“Venture capital is drying up,” for biotechnology projects, said Richard Gold of McGill University, raising questions over how biotechnology will be financed. “Will biotech now turn to pharma?” asked Gold, who advocates the creation of platforms through which knowledge can be exchanged and licensed, and a bigger role for governments in the sector.

Venture capital funds traditionally require IP protection as an investment prerequisite (IPW, Environment, 23 September 2008), so increased uncertainty in that area might also threaten investment.

Patenting and Genetics

There is uncertain public support over patent ownership of biological products.

Some members of the “No Patents on Seeds” coalition, such as Greenpeace Germany, prepared a joint opposition against European Patent on pig breeding after the EPO granted a patent in July 2008 on the breeding of conventional pigs. The patent filed by Monsanto is based on the use of natural gene variants present in all pig breeds in Europe to achieve optimised results in meat production, said Christoph Then, a consultant to Greenpeace from Scouting Biotechnology, a network of consultants. On 15 April, the period of opposition ended for this patent.

A herd of pigs accompanied by a couple of thousand protestors concerned about patents on plant and animal life demonstrated at the European Patent Office in April (IPW, European Policy, 18 April 2009).

The also much-awaited decision of the EPO Enlarged Board of Appeal on the so-called “broccoli case” could be taken later this year, according to Then. The broccoli case involves a patent referring to methods for producing new brassica plants, in particular broccoli, which are not genetically modified. He said this case should also be discussed at the political level. Activists filed several oppositions against patents on the breeding of plants and animals said Then, who is an adviser to the No Patents On Seeds coalition.

On 24-25 April in Lucerne, several non-governmental organisations planned the 5th European Conference on GMO-Free Regions, with a special workshop on the issue of patents on seeds and animals.

Also facing public scrutiny are patents related to human stem cells. In November, the Enlarged Board of Appeal reaffirmed the European patent law that prohibits the patenting of human stem cell cultures whose preparation necessarily involves the destruction of human embryos. No patent will be granted to the Wisconsin Alumni Research Foundation (WARF) on a method by which primate embryonic stem cells (including human) derived from an embryo can be maintained in vitro for a long period of time without losing their potential to differentiate into any cell of the body. Although the Enlarged Board stressed that its decision is not concerned with the general question of human stem cell patentability, sources seem to think this is an interesting decision for the future of life patenting.

Push For ABS Uncertain; IP And Agriculture A Rising Issue

Even as ABS regimes across several fora generate discussion, it is unclear that the political will is there to create a real, legally binding system, said a source familiar with the CBD negotiations.

“Developed countries don’t seem interested,” the source said, “in developing a system to protect traditional knowledge.” Within WIPO, they have “painted themselves into a corner with the IGC… reached a stage where they have to negotiate, but don’t want to negotiate because they want it [any decision on traditional knowledge] to be in the CBD.”

The governing body of the FAO international treaty on plant genetic resources will meet from 1-5 June, at which time they plan to discuss progress in the implementation of the benefit-sharing programme.

The FAO treaty represents an area of IP debate that sources say is likely to intensify in the near future: IP rights’ impact on food security and agricultural production. In addition to FAO, WIPO is expected to address food security at its July conference.

In addition, the UN Special Rapporteur on the Right to Food is planning to release a paper on IP and access to food later this year.

Other key IP and agriculture events this year involve seeds, and seed development.

The International Seed Congress from the International Seed Federation (ISF), an institution with members over 70 developed and developing countries, will take place from 25-27 May in Antalya, Turkey. The ISF represents the large majority of the world seed trade and plant breeders’ community.

And the International Union for the Protection of New Varieties of Plants (UPOV) along with the FAO, the ISF and the International Seed Testing Association will hold the second World Seed Conference in Rome on 8-10 September, addressing the role of new plant varieties in high-quality agriculture.