The British Society Response to CIPR report.

The British Society of Plant Breeders Limited, (BSPB) is an organisation which represents the agricultural plant breeding industry. It’s members include all the major private and public sector plant breeders in the United Kingdom. The Society represents the industry as a whole on technical, regulatory and intellectual property matters. Members have interests across a wide range of crops, predominantly cereals, field peas and beans, potatoes, herbage, oilseeds, sugar beet, forage maize and vegetables.

The Society read the CIPR report, and the Government’s response to it, with great interest. We would like to make some brief comments.

1 General.
The government is to be congratulated on its initiative in commissioning the report. The main conclusion, that the usefulness of intellectual property rights to a country depends on its state of development, is convincing. However, we do feel that the report is rather too pessimistic in its assessment of what IP can do, and sometimes seems to recommend a more cautious approach than is justified by evidence. We comment more specifically on our own areas of interest, and in particular on the specific recommendations.

Chapter 3 – Agriculture and Genetic Resources

In our view, the discussion of plant varieties in this chapter is inadequate. It is based on academic research, which we find unbalanced and unfamiliar with the realities of life in the seed business. In particular, the conclusion that the importance of plant variety protection (PVP) is used as a strategy for product differentiation is surprising. Were this so, eight to ten years of breeding work could be replaced by a distinctive trademark and a marketing campaign. Farmers are good judges of value – they do not buy varieties unless they offer such value, and this means continuous real improvement.

The report makes several recommendations:

• Because of the restrictions patents may place on use of seed by farmers and researchers, developing countries should generally not provide patent protection for plants and animals, as is allowed under TRIPS. Rather they should consider different forms of sui generis systems for plant varieties.

We think this is good advice only for the poorest countries. There is no need for patent systems to impose unjustified restrictions on use of seed by either farmers or researchers. Researchers can be accommodated by appropriate provisions for research use, (even if these need to be rather clearer than those currently available in Europe). Farmers need controlled exceptions for farmer replanting, as provided by European legislation. Both types of exception can readily conform to Trips (Article 30). Generally, sui generis (UPOV-style) protection works well for plant varieties. UPOV allows protected varieties to be used freely for research, while farmers’ rights to replant must take into account the interests of breeders. The requirement in TRIPs for ‘effective’ protection for plant varieties will generally mean that a sui generis system should conform to UPOV.

• Because they are unlikely to benefit from the incentives to research offered by the patent system, but will have to bear the costs, developing countries with limited technological capacity should restrict the application of patenting in agricultural biotechnology, in ways that are consistent with TRIPS. For similar reasons they should adopt a restrictive definition of the term “microorganism”.

We think this is over-pessimistic. Poor farmers cannot afford to pay much for improved varieties, so the chances of varieties being specifically developed to suit their requirements are small. However, they may benefit from availability of improved varieties developed for similar conditions elsewhere. Such varieties require investment if local sales are to be developed. The variety owner is in the best position to make such investment, but will not do so where he has no rights and hence little prospect of obtaining a return on it. Competition from existing varieties will prevent prices rising unreasonably. Everyone benefits if the new variety is successful: this is not a zero-sum game, but can contribute positively to development.

• However, countries that have, or wish to develop biotechnology-related industries may wish to provide certain types of patent protection in this area. If they do so, specific exceptions to the exclusive rights, for plant breeding and research, should be established. The extent to which patent rights apply also to the harvested crop also needs to be carefully examined. It is important that a clear exception to the patent right is included in legislation to allow for farmers’ reuse of seed.

We agree that such specific exceptions, such as those found in European law, are appropriate. However, such exceptions should take account of the interests of breeders (as European law systems and UPOV do), rather than letting farmers use the work of breeders with no payment.

• The review of the relevant provisions in TRIPS which is currently taking place in the TRIPS Council, should preserve the right of countries not to grant patents for plants and animals, including genes and genetically modified plants and animals. It should also permit countries to develop sui generis regimes for the protection of plant varieties that suit their agricultural systems. Such regimes should permit access to the protected varieties for further research and breeding, and provide for the right of farmers to save and plant-back seed, including the possibility of informal sale and exchange.

We see no problem with this, provided always (as previously noted) that the rights of farmers to plant-back are not such as to deprive breeders of all incentive or opportunity for reward for their work.

• Because of the growing concentration in the seed industry, it is important that public sector research on agriculture, and its international component, should be strengthened and better funded. The objective should be to ensure that research is oriented to the needs of poor farmers, that public sector varieties are available to provide competition for private sector varieties, and that the world’s plant genetic resource heritage is maintained. In addition, this is an area in which nations should consider the use of competition law to respond to the high level of concentration in the private sector.

We agree that public sector research on agriculture be strengthened and better funded. We are not convinced that the over-use of competition law is necessary. As markets evolve concentration of resources tends to recur at all levels. Such concentration tends to reflect increasing prosperity. Would restrictive use of competition law prevent the moves towards future prosperity?

• Developed and developing countries should accelerate the process of ratifying the FAO Treaty on Plant Genetic Resources for Food and Agriculture and should, in particular, implement the Treaty’s provisions relating to not granting IPR protection on genetic material in the form received from gene banks protected by the Treaty. They should also implement at national level, measures to promote Farmers’ Rights. These include the protection of traditional knowledge relevant to plant genetic resources; the right to participate in sharing equitably benefits arising from the utilisation of plant genetic resources for food and agriculture and the right to participate in making decisions, at the national level, on matters related to the conservation and sustainable use of plant genetic resources

We agree that all countries should ratify the FAO Treaty as soon as possible. This Treaty brings some sense and practicality to a difficult area. However, it is not necessary to deny IPR protection to genetic material in the form received from gene banks. Such protection could never be validly claimed by the recipient as he would neither have invented nor bred it.

As regards the implementation of Farmers’ Rights, we doubt the value of this, despite the Commission’s commendable effort to explain what they mean by this protean phrase. As to traditional knowledge, see the discussion in the following chapter. Equitable sharing of benefits is enjoined by the CBD: working out what it means is more difficult (do farmers have greater rights than others in this respect?). On conservation and sustainable use, farmers may have special knowledge and skills to contribute, but it is not clear how relevant this is to the protection of intellectual property rights. This recommendation seems inspired more by sentiment than by reason.

Chapter 4: Traditional knowledge, access and benefit sharing, and geographical indications

The protection of traditional knowledge is important to BSPB so far as it relates to the use of genetic resources. Breeders need the ability to use genetic resources for improving crops, for their own benefit and those of farmers and consumers. If there are to be restraints on the free use of such resources, or knowledge associated from them, they need to be fair, practical and above all clear. Lack of clarity will deter breeders from using genetic resources, without providing any compensating benefits.

The Commission puts its finger on the crucial point about protection of traditional knowledge: what is the objective? Those put forward include equity; conservation (of knowledge, biodiversity and traditional cultures); prevention of appropriation; and promotion of use. As the Commission points out, different, perhaps even incompatible, measures may be required for these different objectives. Until we decide which has priority, we cannot select an appropriate method of protection.

As to the Commission’s specific recommendations:

• At this early stage in the debate on traditional knowledge, there is much to gain by considering the issue in a number of fora, while ensuring coherent approaches are developed and that effort is not duplicated.

We tend to disagree. The topic is being discussed in a wide variety of fora, including the WTO, the CBD, and WIPO. This is more likely to lead to confusion than progress. WIPO is the appropriate forum, because of its understanding of intellectual property, a difficult technical subject in which expertise is not widely distributed. WIPO should continue its discussions in the Intergovernmental Committee, and other fora should as a minimum not take any premature decisions before such discussions are concluded.

• With such a wide range of material to protect and such diverse reasons for “protecting” it, it may be that a single all-encompassing sui generis system of protection for traditional knowledge may be too specific and not flexible enough to accommodate local needs.

We completely agree. This is not a case where one size fits all. The International Agreement on Plant Genetic Resources provides an example of a successful agreement limited to a particular sector.

• The digital libraries of traditional knowledge that are now being created, should, as soon as it is practical, be incorporated into the minimum search documentation lists of patent offices therefore ensuring that the data contained within them will be considered during the processing of patent applications. Holders of the traditional knowledge should play a crucial role in deciding whether such knowledge is included in any databases and should also benefit from any commercial exploitation of the information.

We fully support the setting up of databases, with the consent of the holders of the information. It is to be hoped that holders would not normally object to the inclusion of information already in the public domain. The question of whether and how holders might benefit from the commercial exploitation of such information needs further discussion.

• Countries that only include domestic use in their definition of prior art should give equal treatment to users of knowledge in other countries. Account should be taken of the unwritten nature of much traditional knowledge in any attempts to develop further the patent system internationally.

We agree that globalisation requires knowledge from all countries to be treated equally, and we hope the USA will change its now outdated law.

• The principle of equity dictates that a person should not be able to benefit from an IP right based on genetic resources or associated knowledge acquired in contravention of any legislation governing access to that material.

This is rather broadly stated. The principle of equity no doubt dictates that no-one should benefit from their illegal or immoral behaviour of whatever type – but it may not always be sensible or practical to sanction all such behaviour, particularly by using intellectual property law. By way of example, the old UK caselaw used to provide that the invention of an employee did not necessarily belong to the employer even if made in the employer’s time and with the employer’s materials, if it was not the employee’s duty to make inventions. The employer’s remedy for any misuse of time or materials would be limited to an action for breach of the contract of employment. Similar considerations may apply here.

• In such cases the burden should generally lie with the custodian of the knowledge to prove that the IP holder has acted improperly. But this requires that the custodian is aware of what has been done.

True.

• For this reason, all countries should provide in their legislation for the obligatory disclosure of information in the patent application of the geographical source of genetic resources from which the invention is derived. This requirement should be subject to reasonable exceptions as, for example, where it is genuinely impossible to identify the geographical source of material. Sanctions should be applied only where it can be shown that the patentee has failed to disclose the known source or where he has sought to deliberately mislead about the source. The Council for TRIPS should consider this in the light of the review of this issue recommended in the WTO Ministerial Declaration at Doha.

This recommendation has not been thought through. It underestimates both the theoretical and practical difficulties, although some of these were pointed out to it. The objective of the legislation would be to encourage inventors to adhere to the provisions of the CBD, including access to genetic materials only with prior informed consent. The Commission thinks that the inventor will normally know, or be interested to know, the geographical origin of the material used in the invention. In our view, this typically only applies to those who acquire interesting material by ‘bioprospecting’. However, many, probably most, inventions with biological materials are not made by ‘bioprospectors’. Many are made with material that has been in circulation for years, centuries or millenia. When the Commission says (p85, lines 34-36): “Under the terms of the CBD any benefits are to be shared with the country providing the resource irrespective of whether the resource actually originated in that country.”, it misreads the Convention. It refers to the definition of ‘country providing resources’ in article 2 of the CBD, but overlooks Article 15. Article 15 deals specifically with access. It states “For the purpose of this Convention, the genetic resources being provided by a Contracting Party, as referred to in this Article and Articles 16 and 19, are only those that are provided by Contracting Parties that are countries of origin of such resources or by the Parties that have acquired the genetic resources in accordance with this Convention.” (CBD, Art 15.3). Thus it is not enough to know the country that provided the genetic resources: it is also necessary to know whether that country possesses them in in situ conditions (see Article 2) or acquired them ‘in accordance with the Convention’ (whatever that means). It is much more difficult to identify the ‘geographical origin’ of a particular genetic resource than the Commission is prepared to admit.

These are not the only difficulties. One question to which the Commission gives no answer is what kind of relationship between the invention and the biological resource requires disclosure of origin. As is typical in these discussions, in most of the cases referred to the biological resource is unique and essential to the generation or operation of the invention (neem, basmati, hoodia). However, many inventions use biological resources in different ways: for example, generically. For example, an invention of genetically modified wheat would be generally applicable to wheat. Leaving aside the origin of the modifying gene, what (if anything) is to be disclosed about the wheat? Is the applicant to disclose (is it in fact known with certainty) where the wheat species first originated? Or is he to disclose (what is in principle irrelevant) the origin of the actual samples of wheat used in his specific examples? These may be quite different from that used in any subsequent commercial application. Other questions of this kind are discussed in the paper recently issued by WIPO (WIPO/GRTKF/IC/5/10) for the Intergovernmental Meeting in July 2003. Before any sensible system of disclosure can be put in place, satisfactory answers to all these questions are required.

If any suitable basis for disclosures of source or origin can be worked out, we agree with the Commission that incorrect disclosures should not be sanctioned unless deliberately misleading.

• Consideration should also be given to establishing a system whereby patent offices examining patent applications which identify the geographical source of genetic resources or traditional knowledge pass on that information either to the country concerned, or to WIPO. WIPO may act as a depository for patent related information of this nature. Through these measures it will be possible to monitor more closely the use and misuse of genetic resources

If a satisfactory system of disclosures can be worked out, information obtained should be available to ‘countries of origin’, and it may be that WIPO could act as a clearing-house.

• In respect of geographical indications, further research should be undertaken by a competent body, possibly UNCTAD, to assess the benefits and costs to developing countries of the existing provisions under TRIPS, what role they might play in development, and the costs and benefits of various proposals to extend geographical indications and establish a multilateral register.

We have no view on geographical indications – we do say that those asking for new or extended rights of any kind have the burden of establishing their case.

****************

WOOLPACK CHAMBERS ·MARKET STREET · ELY · CAMBRIDGE CB7 4ND
TELEPHONE: (01353) 653200 · FAX: (01353) 661156
E.Mail: enquiries@bspb.co.uk
http://www.bspb.co.uk