How the Patent System has been Subverted in Favour of Corporates | Asian Age

World Intellectual Property Day is observed annually on 26 April. As we prepare to commemorate this day, it’s a good time to reflect on what the philosophy of the patent system was when it originated and what it has morphed into today. Patents were the first form of intellectual property rights (IPR) to be granted and codified formally, now there are many other forms of IPR.

Granting a patent to the inventor of a particular product was actually done with the purpose of benefiting society at large. The way to benefit society was to give an advantage for a limited period of time to the inventor of th product or a novel method or process of developing a product so that innovation was supported. If innovation was encouraged by giving privileges to the inventor then society at large would benefit because innovations would bring in new things and new ways of doing things. This would avoid stagnation and lead to fresh growth and development. The patent system granted an exclusive marketing right, usually for 20 years, so the innovator could make money by selling his or her product or process without any competition. This meant a reasonably good return on investments so to speak. The financial gain was the attraction to continue innovation.

However it cannot be in the interest of any society to grant a monopoly to a single individual or agency , to benefit just one person at the cost of everybody else. The patent system allowed exclusive financial gain but did not allow an exclusive forever monopoly. The patent was not a forever thing but valid for 20 years after which the patent information could be used by anyone. Public interest clauses were included to prevent ‘forever benefits’ to the innovator without sharing anything with the public.

The first safeguard was transparency. According to patent rules, the moment you filed for a patent you had to make your invention public in a way that anyone versed in that domain could replicate it. You had to declare the exact way you in which you invented that product, sharing the ‘know how’ and ‘do how’ of how that product was created. Thus the new technology was transferred to the public and was available for use after the expiry of the patent period. This feature has often been subverted by latter day patent applicants, chiefly companies. The declaration of the invention is kept deliberately obtuse, missing a few key steps so that it cannot be replicated effectively. 

An important public interest feature of the patent system was ‘utility’. This meant the patented product had to be useful for the public. An innovation, however creative and novel, could not get a patent if it did not have demonstrable utility. This ensured that society benefited from the grant of the patent.

Another essential step was the feature of Compulsory Licensing. This is a clause in the patent system that allows governments to intervene when a monopoly turns hostile to public interest and becomes a disadvantage to society at large. For example, in the case of a patented medicine, if the pharma company that holds the patent is not providing that medicine in the quantities required or is pricing it too high and therefore putting it out of the reach of common people, then the government can intervene. Under the Compulsory Licensing clause, the government can grant a license to another company to produce the patented medicine and give compensation to the original patent holder. In this way the welfare of society was given primacy and the patent holder was not allowed to exercise its monopoly to the detriment of citizens. 

A third important feature of the patent system which was followed in earlier times is “Working the Patent’. This means if you have been granted a patent right in a particular country you have to manufacture that product in that country. You cannot just import it and exercise your monopoly in the market, giving nothing in return. So why was it important to work the patent? Producing the product in the country where you were the patent holder made sure that there was both skill building and diffusion of technology in lieu of granting exclusive marketing rights. This feature balanced both interests and society didn’t lose out.

Unfortunately the patent system is being slowly subverted not to balance societal welfare with (limited) exclusive marketing but to weigh in favour of monopolies, the corporate sector being a significant holder of patents. Governments seem to have allowed “Working the Patent” to be disbanded to quite an extent. Patent holders increasingly import the products from their home countries and just exploit the local market, hence there is neither technology diffusion or skill building. Compulsory Licensing clauses are being fought tooth and nail by the corporate sector and becoming difficult to implement.

Another challenge to a balanced patent system is the attempt to “Evergreen” a patent and extend its life beyond 20 years. In this case the company makes small, usually trivial changes in the process or the product, without substantially altering the properties of the original product. It then claims innovation of a new product and applies for a patent on this product so that it can extend the monopoly of 20 years in the market for another 20 years. Essentially the core product remains the same into which no new R&D has been invested, no new properties have been added and society does not get any new benefits from this tweaked product. This Ever-greening of patents is a trick that the corporate sector has developed to line its coffers. Some government are able to resist this dishonest move and some are not.

So, there you have it. The original patent system that started out as a system to benefit the society and promote its betterment has now turned into a tool of exploitation in the hands of the corporate sector aided by pliant, and dare I say, some corrupt administrators.

source: https://www.asianage.com/opinion/columnists/suman-sahai-how-the-entire-patent-system-was-subverted-for-corporates-1952386

TECHNOLOGY ADOPTION IN DEVELOPING COUNTRIES

Suman Sahai

All technologies but especially those related to food and agriculture must be adopted in developing countries only if small farmers and rural communities can benefit from them.

It is important to recognize that there are many indigenous technologies and knowledge systems that work well for rural communities because they are affordable, accessible and communities are skilled in their use. New technologies must neither displace nor diminish such indigenous technologies.

A new agricultural technology must have a strong local context to be meaningful and the agenda must be determined by local stakeholders. The research goals must be determined by the needs of local agriculture, not imported as a package as is the case currently with Bt and Herbicide Tolerant  (HT) crops. A technology developed for industrial agriculture is unlikely to work for resource poor farmers in developing countries because it is usually more expensive, it can be irrelevant or even harmful  and it is alien in its application.

Growing Bt cotton which is expensive and has complex requirements of maintaining non Bt refuges and counting insects to determine when an insecticide spray is required, places great financial burdens and provides opportunities for things going wrong.  HT crops constitute a labor saving technology, which is absolutely wrong for labor surplus developing countries where agricultural operations like weeding, threshing and winnowing provide much needed wages to agriculture labor. In addition, weeds that would be destroyed by herbicide application serve as leafy green vegetables for the family, fodder for livestock and medicinal plants for health and veterinary care in rural areas.

The adoption of regulated technologies like Ag biotechnology may not be difficult where regulatory systems can be established and enforced easily. This is not necessarily the case in developing countries where there is a deficit of skilled manpower and finances to run a stringent regulatory system. In the absence of a technically competent, transparent and accountable regulatory system, adoption of Ag biotechnology which has environmental, health and socio-economic implications is not advisable in poor countries.

To develop new technologies relevant to the poor, the public sector must step up spending to create accessible and affordable public goods. International research and development agencies must support such efforts and intervene in the creation of novel approaches to deal with innovation and intellectual property (IP) so that new technologies do not remain shackled in patents, available only to the rich. Countries should develop sensible domestic IP policies incorporating equity and justice.

CURRENT CHALLENGES TO FARMERS’ RIGHTS

Suman Sahai[1] & Carly Nichols[2]

In 1986, in the Uruguay Round of trade negotiations under the General Agreement on Trade and Tariffs (GATT), the developed countries, led by the U.S., first demanded that an international standard for plant variety protection be imposed on all member countries. When GATT gave way to the WTO in 1995, member countries were obliged to comply with the agreement on Trade-Related Intellectual Property Rights (TRIPS). TRIPS covered many aspects of intellectual property rights (IPRs). Article 27.3 (b) dealt with the protection of plant varieties. This offered three options for the protection of plant varieties. Protection would have to be granted by either (a) a patent; (b) an effective sui generis system or; (c) by a combination of the two. India chose to protect its plant varieties with a sui generis legislation.

FARMERS RIGHTS IN THE INDIAN SUI GENERIS LEGISLATION

India’s sui generis law for the protection of plant varieties recognizes the farmer not just as a cultivator but also as a conserver of the agricultural gene pool and a breeder who has bred several successful varieties. The Protection of Plant Varieties and Farmers Rights (PPV-FR) Act, 2001, makes provisions for such farmers’ varieties to be registered, with the help of others, so that they are protected against being scavenged by formal sector breeders. The most significant feature of the Indian legislation is the right granted to farmers to save and sell seed of varieties covered by breeder’s rights but only as generic seed for local use by other farmers.

CHALLENGE TO FARMERS RIGHTS FROM INDIA

The first challenge to India’s unique system of Farmers’ Rights came from officials in the Agriculture Ministry of the Indian Government itself. Senior scientists of the Indian Council of Agricultural Research system and top bureaucrats of the Agriculture Ministry were the principal opponents of full fledged rights for farmers, especially the farmers' right to sell seed. Less than a year after the PPV-FR legislation was enacted, the Agriculture Ministry moved an application seeking accession to UPOV under the terms of the UPOV Convention of 1978.  

The International Union for the Protection of New Varieties of Plants (UPOV) is an inter-governmental organization which seeks to support and strengthen Breeders’ Rights. The UPOV system grants one right, the breeders’ right. There is no farmers’ right in UPOV. By applying for UPOV membership, the Agriculture Ministry struck the first blow against Farmers’ Rights. It sought to undermine the comprehensive rights granted to farmers of the country after a long struggle by civil society and the intervention of two Parliamentary Committees, a process that took place over the tenures of three national governments.

CHALLENGE FROM THE SEED INDUSTRY- THE SEEDS BILL

It is no secret that the seed industry has been deeply unhappy with the PPV-FR Act and the rights granted to farmers. Not only has it pushed for UPOV membership, a move that would seriously undermine Farmers Rights, it also countered with the Seeds Bill, a draft legislation which bears its imprint. Given below are the key features where the Seeds Bill has tried to undermine the rights of farmers.

Key Differences between the Seeds Bill and the PPV-FR Act

	PPV-FR Act	Seeds Bill
Parentage of Variety	Requires details of pedigree	Does not require declaration of parentage
Pre-Grant Opposition	Allows legitimate opposition to grant of registration of new variety by allowing people to raise objections to the grant.	No provision for pre-grant opposition
Price Control	Regulation of seed supply and seed price to be managed through compulsory licensing	No mechanism to regulate seed supply or seed price
Compensation for Poor Quality Seed	Provisions ensure farmers are compensated for poor quality seeds	Ambiguous “Compensation Committee” is proposed to deal with compensation
Period of Protection	15 years for crop varieties and 18 years for trees	30 years for crop varieties and 36 years for trees

CHALLENGES AT THE INTERNATIONAL LEVEL

The global seed industry has orchestrated its attacks on Farmers’ Rights in assorted forums, taking recourse to a strategy of “forum shifting” where it strikes at several levels of governance with objections to Farmers’ Rights at different venues. This strategy is an attempt to try and exhaust the resources of developing countries, forcing them to acquiesce and accept a UPOV style PVP regime. Bilateral Free Trade Agreements (FTA) and the UN have become platforms where the seed industry and developed countries organize their attack on Farmers Rights.         

BILATERAL TRADE AGREEMENTS

The use of FTAs has proliferated in recent years after the breakdown of the Doha Round of trade negotiations at the WTO.  The prevalent trend is developed countries asking for ‘TRIPS-plus’ protection, thus undermining Farmers’ Rights. India is currently negotiating several FTAs, most notably with the European Union (EU) and the European Free Trade Association (EFTA).

EU-India FTA

The EU-India FTA negotiations began in 2007 with the EU seeking UPOV 1991 standards for the protection of plant varieties. The 1991 UPOV treaty does not allow the grant of Farmers Rights. There is a reference to an exception for plant back rights (self saved seed) but this falls significantly short of the Farmers’ Rights in Indian law. 

EFTA-India FTA

Starting in January 2008, the EFTA countries are also demanding TRIPS plus conditions in their Free Trade Agreement with India. In March 2009, Norway, a country with a liberal position in TRIPs, stated its opposition to TRIPS plus provisions and “withdrew” from negotiations on IPRs. However, the EFTA negotiations continue despite this and Norway has kept the option of signing the text negotiated between the three other EFTA countries (Switzerland, Iceland, and Liechtenstein) and India. 

The FTAs under negotiation present a direct challenge to the PPV-FR Act and its Farmers’ Rights provisions but these are not the only forums from where such challenges are being mounted. There has been increasing pressure coming from the International Seed Federation (ISF) to force a move towards accession to UPOV 1991.  This pressure is intended for the developing world as a whole, but India is a special target since with its unique PPV-FR legislation it is the only to nation to have enacted a PVP platform which deviates from UPOV.

CHALLENGES AT THE UN -- ISF ATTACKS

In recent years the seed industry, represented by the International Seed Federation (ISF), has begun a concerted attack on Farmers’ Rights.  The ISF was founded in 2002 by merging the International Seed Trade Federation (FIS) and the International Association of Plant Breeders for the Protection of Plant Varieties (ASSINSEL). The ISF has a reputation for its aggressive tactics and wide influence on policy. In 2009 Neils Louwaars of the Centre for Genetic Research, Wageningen University noted this, stating, “ISF has significant impact on policymakers both at the international level and on national agricultural and trade policies, including IPR and seed regulations”.  Recently, the ISF has taken the unusual step of approaching the UN Secretary-General, attacking Farmers’ Rights and advocating for internationally strengthened IPR regimes for seed.

The ISF has spent the past ten years lobbying to obtain strong IPRs on seed and defending the need to have Genetic Use Restriction Technologies (GURTs), a technology which renders the seed sterile after the first sowing. ISF lobbies strongly to promote a 1991 UPOV-style Plant Breeders’ Right as the only acceptable sui generis system under TRIPs 27.3(b).  In a 2009 position paper the ISF states,

“If a country envisages the adoption of a sui generis system to protect plant varieties, the ISF recommends that this has at least to conform to the requirements of the 1991 Act of the UPOV Convention” and “ISF members consider that any national legislation authorizing farm saved seed …without safeguarding the legitimate interest of the breeders…would not be an effective sui generis system in the meaning of the article 27.3.b of the TRIP’s agreement.

These statements counter the provisions of the WTO-TRIPS on sui generis protection. In fact, in the Uruguay GATT Round negotiations, despite strenuous efforts by UPOV, member countries declined to accept UPOV as the sui generis model in 27.3(b) of TRIPs,

The Indian sui generis legislation is an obvious target of the ISF attack. The Indian law goes further than any other in the world in granting rights to farmers in diverse ways. India’s sui generis legislation was submitted to the TRIPs Council following the enactment of the PPV-FR Act in 2001, where it has been accepted as the country’s TRIPs compliant law.

The ISF has also been active in promoting the use of GURTS, popularly known as ‘terminator technology’. In a 2003 position paper they stated, “where effective intellectual property protection systems don't exist  or  are  not  enforced,  GURTs  could  be  an  interesting  technical  alternative  to  stimulate plant-breeding  activities.”

Since 2009 the ISF has stepped up its attack on Farmers’ Rights, putting out two communiqués.  The first was a standard press release, the second was a letter addressed to the UN Secretary General Mr. Ban Ki-moon. This move is noteworthy since ISF has essentially asked the UN to step in to undo the decisions taken at the WTO.

In its October 2009 press release titled, “Farmers’ Rights”, ISF reiterated the global seed industry’s position that the minimum standard for an “effective sui generis system” as required by TRIPS 27.3(b) should be the 1991 UPOV Convention. In other words, the flexibility provided by WTO/TRIPs to member countries to craft their own kind of sui generis protection system should be rescinded.  According to ISF, national governments can decide to provide some exceptions to farmers to use farm-saved seed provided that it is, “within reasonable limits and safeguarding the legitimate interests of the rights holder”.

Under no circumstance would farmers be allowed to exchange or sell such propagating material under this system, or reuse it themselves without paying a fee to the breeder.  ISF makes its position clear in its statement:

“Farmers are the primary market for new varieties developed and protected by commercial plant breeders. Free and unlimited use of farm saved seed that is harvested from protected varieties developed by plant breeders destroys the economic incentive to those breeders….If farm saved seed of protected varieties is permitted and used, breeders should receive a fair remuneration for that use”.

Following up on this, in December 2009 the ISF sent a letter to the UN Secretary-General arguing that Farmers’ Rights were unnecessary and an impediment to the objectives of commercial plant breeders.  The letter was a response to a report by Olivier De Schutter, the UN’s Special Rapporteur on the Right to Food, titled “Seed Policies and the Right to Food: Enhancing Agrobiodiversity and Encouraging Innovation”. The report, released in July 2009, is clearly supportive of Farmers Rights, stating “One means to restore an adequate balance between the rights of plant breeders and the needs of farmers is by strengthening the protection of farmers’ rights under domestic and international law”.

The UN Special Reporter’s report reiterates the fact that Farmers’ Rights play an indispensable role in ensuring food security and states that national policy must promote Farmer’s Rights, including the right to replant, exchange, and sell seeds amongst informal networks of farmers.

The ISF letter to the UN Secretary General states that commercial breeding is the way of the future in agricultural R&D, dismissing the immeasurable gains which have been achieved by farmers’ conservation and selection efforts.  It also goes on to rebut, point for point, De Schutters’ report and argues against the underlying tenets of Farmers’ Rights:

• It is not correct that professional plant breeders and biotechnology developers, through the tools of intellectual property, are causing the poorest farmers to become increasingly dependent on expensive inputs. On the contrary, farmers can not only freely continue to multiply and use their own traditional seeds they can also breed new varieties using purchased varieties as an additional source of genetic diversity. And since any purchase of seeds is a choice made by the farmer then they will only do so if those purchases are beneficial to them.

• It is not correct that seed industry research seeks to satisfy the needs of farmers in industrialized countries while neglecting those of poor farmers in developing countries. There are many examples where private led research from the private sectors in developing countries is being deployed to provide better varieties for the poorest farmers of the world.

• It is not correct that farmers’ seed systems, which are a source of economic independence and resilience in the face of threats such as pests, diseases, or climate change, may be put in jeopardy.  On the contrary, professional plant breeders and biotechnology developers, both public and private, are the source of the most dramatic advances to challenge pests and diseases. It is a well known fact that modern varieties perform significantly better, also in input poor environments.

• It is not correct that plant breeders’ rights are blocking or delaying access to much needed research tools and plant material. Much the opposite in fact since commercially available varieties protected by Plant Breeders Rights are the only genetic resources freely available for further breeding during their life of protection.

• It is not correct that compulsory licensing is an adequate or indeed an effective mechanism to overcome barriers to research on patented material…ISF is not generally in favor of compulsory licensing.

• ISF does not share the view that progress in agriculture and breeding is slowed by the current IP systems.  ISF holds that the current combination of PVP, patents, and voluntary licenses is contributing to increasing the rate of progress in agricultural productivity through plant breeding.

• It is not correct to state that contractual clauses should be prohibited. In those countries where enforcement possibilities on IP are limited, contractual clauses may be the only remedy against infringement.

Continuing its tirade against Farmers’ Rights and its demand for imposing UPOV 1991 provisions; ISF once again repeated its position at the Second International Seed Trade Conference held in Istanbul, Turkey in October 2010. A former ISF president Jean-Louis Duval called for 1991 UPOV protection and a strict interpretation of the “farmers’ privilege” in the 1991 Convention: According to Duval's presentation, “ISF is committed to take actions to strengthen the 1991 Act of the UPOV 1991 Convention by striving for: a strict interpretation of the exceptions to the breeders’ rights in the 1991 Convention…and ratification of the UPOV 1991 Act by all UPOV members”.

THE WAY AHEAD

A new and concerted attack on Farmers’ Rights has been launched by the seed industry. This must be challenged with determination by a united front of all developing countries, invoking the TRIPS agreement and insisting on at least retaining the flexibilities granted in it for the protection of plant varieties if not pushing for more comprehensive rights for farmers. TRIPS Plus provisions must be rejected.

Having produced the most progressive legislation on Farmers Rights so far, India has a special responsibility to counter the aggressive attacks of the seed industry on Farmers’ Rights. As the only country that has granted legal rights to farmers in its sui generis legislation, India must take the lead to ensure that Farmers Rights are strengthened, not weakened, over time and that strong farmer rights are adopted by countries across the globe. India should be proactive in working with other developing countries to secure the rights of farmers over their resources and their innovations and make this an internationally enforced obligation.

The significance of enforcing Farmers’ Rights in order to ensure food security has been recognized by a range of important international players. The International Assessment of Agricultural Knowledge, Science, and Technology for Development (IAASTD) Report has stated that local seed systems are very important to goals ranging from reduced hunger and better nutrition to economic development. The International Treaty on Plant Genetic Resources for Food and Agriculture (IT-PGRFA) recognizes Farmers’ Rights and urges countries to implement national laws to advance Farmers’ Rights.

Above all, for developing countries it is important to bear in mind that strong Farmers’ Rights keep the farming community viable and self reliant in the matter of seed which translates into not just food security but also food sovereignty.

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[1] Chairperson, Gene Campaign

[2] Intern, Gene Campaign