The British Society Response to CIPR report.
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.
read the CIPR report, and the Government’s response to it, with
great interest. We would like to make some brief comments.
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.
3 – Agriculture and Genetic Resources
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.
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.
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.
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”.
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.
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.
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.
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.
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.
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.
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?
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
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.
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.
4: Traditional knowledge, access and benefit sharing, and geographical
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
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.
the Commission’s specific recommendations:
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
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.
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.
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.
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.
that globalisation requires knowledge from all countries to be treated
equally, and we hope the USA will change its now outdated law.
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.
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
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
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.
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.
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
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.
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.
no view on geographical indications – we do say that those asking
for new or extended rights of any kind have the burden of establishing
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