Bolivia’s position about life forms patentability

Recently Bolivia have published it’s cmmunication to WTO’s TRIPS Council on the Review of Article 27.3(b). This article allows patenting of life forms and requires provision to be made for the protection of plant varieties

Article 27.3(b) says the following:

“Members may also exclude from patentability:
plants and animals other than micro-organisms, and essentially biological processes for the production of plants or animals other than non-biological and microbiological processes. However, Members shall provide for the protection of plant varieties either by patents or by an effective sui generis system or by any combination thereof. The provisions of this subparagraph shall be reviewed four years after the date of entry into force of the WTO Agreement.”

Here you can read the full review. Really interesting reading.

———————————————————————
WORLD TRADE ORGANIZATION
IP/C/W/545

26 February 2010
(10-1102)

Council for Trade-Related Aspects of Intellectual Property Rights

Original: English

REVIEW OF ARTICLE 27.3(B) OF TRIPS AGREEMENT

Communication from Bolivia

The following communication, dated 24 February 2010, is being circulated at
the request of the delegation of Bolivia.

_______________

I. INTRODUCTION

1. The purpose of this submission is to contribute to the work programme of
the TRIPS Council under the review of Article 27.3(b).

2. Article 27.3(b) allows Members to exclude from patentability plants and
animals, but not micro-organisms, and allows Members to exclude from
patentability essentially biological processes for the production of plants
and animals, but not non-biological or microbiological processes.
Furthermore, it also requires a legal form of protection for plant
varieties, by requiring members to provide plant variety protection either
by patents or by an effective sui generis system of protection or by any
combination thereof. It also requires that Article 27.3(b) be reviewed four
years after the entry into force of the WTO agreement.

3. The review of Article 27.3(b) is an issue within the mandate of the Doha
Work Programme under paragraph 19 of the 2001 Doha Ministerial Declaration
(WT/MIN(01)/DEC/1).

4. The review is also an issue within the mandate of the Doha Work Programme
under Implementation-Related Issues and Concerns (paragraph 12 of the Doha
Ministerial Declaration). Paragraph 12 mentions the adoption of the Decision
on Implementation-Related Issues and Concerns (WT/MIN(01)/17) to address a
number of implementation problems faced by Members. It also clearly states
that the “negotiations on outstanding implementation issues shall be an
integral part of the Work Programme”.

5. The “Compilation of Outstanding Implementation Issues Raised by Members”
(JOB(01)152/Rev.1) has several items relating to the review of Article
27.3(b). The relevant tirets and paragraphs are as follows:

“Tiret 91: The period given for implementation of the provisions of Article
27.3(b) shall be five years from the date the review is completed.”

“Tiret 95: …[Article 27.3(b) to be amended (…) The amendments should
clarify and satisfactorily resolve the analytical distinctions between
biological and microbiological organisms and (…) processes that produce
living organisms should not be patentable. The amendments should ensure the
protection of innovations of indigenous and local farming communities; the
continuation of traditional farming processes including the right to use,
exchange and save seeds, and promote food security.]”

“Proposal by Least-Developed Countries 22 October 2001: The General Council
agrees that the review process should clarify that all living organisms,
including plants, animals and parts of plants and animals, including gene
sequences, and biological and other natural processes for the production of
plants, animals and their parts, shall not be granted patents.”

II. PRESENT SIGNIFICANCE OF REVIEW OF ARTICLE 27.3(B)

6. Over the years, various submissions and proposals have been made on the
review of Article 27.3(b). Some important concerns raised by the submissions
and proposals are the need to amend or clarify Article 27.3(b) to prohibit
the patenting of all life forms, the need to protect farmers’ rights,
genetic resources, traditional knowledge and traditional practices in
developing countries.

7. Meanwhile various developments have taken place at different national,
regional and international levels that highlight the need to conduct
concrete and expedited discussions on the Review of Article 27.3(b). In
brief some of these developments are explained.

8. First, and for us most importantly, in January 2009 the people of Bolivia
adopted a new Constitution, which states:

Article 255 paragraph II: Negotiation, signature and ratification of
treaties will be governed by the following principles:

* Respect for the rights of indigenous peoples and peasants.

* Harmony with nature, protection of biodiversity and prohibition of private
appropriation of plants, animals, micro-organisms and any living matter for
exclusive use and exploitation.

9. Another important development is the adoption of the United Nations
Declaration on the Rights of Indigenous Peoples in 2007. Article 11.1 of the
Declaration recognizes the right of indigenous peoples “to practise and
revitalize their cultural traditions and customs. This includes the right to
maintain, protect and develop the past, present and future manifestations of
their cultures, such as archaeological and historical sites, artefacts,
designs, ceremonies, technologies and visual and performing arts and
literature”. Article 11.2 of the Declaration requires states to “provide
redress through effective mechanisms, which may include restitution,
developed in conjunction with indigenous peoples, with respect to their
cultural, intellectual, religious and spiritual property taken without their
free, prior and informed consent or in violation of their laws, traditions
and customs”.

10. Further Article 31 of the Declaration recognises that “indigenous
peoples have the right to maintain, control, protect and develop their
cultural heritage, traditional knowledge and traditional cultural
expressions, as well as the manifestations of their sciences, technologies
and cultures, including human and genetic resources, seeds, medicines,
knowledge of the properties of fauna and flora, oral traditions,
literatures, designs, sports and traditional games and visual and performing
arts” and the “right to maintain, control, protect and develop their
intellectual property over such cultural heritage, traditional knowledge,
and traditional cultural expressions.” Thus States have the duty to “take
effective measures to recognize and protect the exercise of these rights”.

11. Furthermore extensive patenting of life forms, misappropriation of
biological resources originating from developing countries, increasing
concentrated corporate control over the agriculture industry due to various
acquisitions, undermining of the rights of indigenous peoples, local
community and farmers including farmers being prosecuted for alleged patent
violations, proliferation of trade agreements and initiatives focused on
enforcement of intellectual property, pressures to adopt a particular model
for plant variety protection, in our view makes a strong case for an
in-depth and accelerated review of Article 27.3(b).

III. ISSUES FOR CONSIDERATION

12. This communication is a brief introduction to some of the issues that
need to be addressed under the review of Article 27.3(b).

A. PATENTING OF LIFE FORMS

13. The rationale behind Article 27.3(b) is not clear. This relates to the
artificial distinction made between plants and animals (which may be
excluded) and micro-organisms (which may not be excluded); and also between
“essentially biological” processes for making plants and animals (which may
be excluded) and non-biological and microbiological processes (which may not
be excluded).

14. There is no reason why “micro-organisms”, “micro-biological processes”
and “non-biological” processes for the production of plants and animals
should be singled out for patentability, whereas members are given the
discretion to prohibit patents on plants and animals, and on essentially
biological processes.

15. Moreover, by giving Members the option whether or not to exclude the
patentability of plants and animals, Article 27.3(b) allows life forms to be
patented.

16. Consequently, since the adoption of the TRIPS Agreement, there has been
a proliferation of patents and patent applications involving micro-organisms
and other biological resources. This phenomenon has serious social, economic
and ethical implications, which are adverse especially for developing
countries.

17. Firstly, most of the patent holders and applicants are from developed
countries. Secondly, the granting of patents prevents those not having the
patents from making use of the patented materials, and this is also made up
of persons and institutions in developing countries, including indigenous
peoples. Thirdly, many of the biological resources originate in developing
countries and are obtained without their knowledge and in violation of their
laws, thus resulting in “misappropriation” and biopiracy. Fourthly, genetic
material may be inserted via vectors such as bacteria into plants and
animals, and all these living things (the genetic material, the
genetically-modified bacteria, and the genetically-modified plants and
animals) may then be patented.

18. The resulting effect is concentration of ownership of patents in a few
entities (largely based in developed countries) with detrimental effects on
competition and on social and economic situation (including food sovereignty
and livelihood of farmers) that most affects the vulnerable and poor,
including indigenous peoples in developing countries.

19. Patenting of life forms promotes an imbalance in the current
intellectual property system. The TRIPS Agreement while granting monopoly
rights to private parties does not explicitly recognise the collective
rights of indigenous peoples and local communities over their biological
resources and traditional knowledge, farmers’ rights or the sovereign rights
of States.

20. There is also an ethical dimension to the issue. The patenting of life
forms is unethical as it is against the moral and cultural norms of many
societies and indigenous peoples, of members in the WTO including that of
Bolivia.

B. PROTECTION OF PLANT VARIETIES

21. The issue of protection of plant varieties is also of concern to the
delegation of Bolivia. Prior to the TRIPS Agreement, countries had
flexibility to deal with the issue of plant varieties protection in the
manner they chose. However, TRIPS Article 27.3(b) requires protection of
plant varieties by either a patent, a sui generis system or a combination of
both. In this regard there are a number of concerns.

22. Firstly, in several developed countries, patenting of plants is already
taking place, and in the process, there is misappropriation of biological
resources, as plants and seeds originating in developing countries are being
patented, usually without the knowledge or consent of the countries of
origin. Secondly, the 21st century has seen significant corporate control
over the agriculture industry due to various mergers and acquisitions.
Thirdly, in some countries where there are patents on plants, farmers are
being prosecuted for alleged patent violations.

23. Fourthly, pressures are often placed on countries to accept a certain
definition or model for implementation of Plant Variety Protection although
there is no such requirement in Article 27.3(b). In this regard it is
important to ensure that innovations of indigenous and local farming
communities; the continuation of traditional farming practices including the
right to use, exchange, save seeds and sell their harvest is recognised and
protected. It is also equally important to recognise the right to take
measures to prevent anti-competitive and other practices, which threaten
food sovereignty in developing countries.

24. In this sense, the new Constitution of Bolivia is a step towards
providing protection to its farmers and peasants against actions and
practices, which threaten food sovereignty. Article 16.II establishes that
“the State must guarantee food security through a healthy, adequate and
sufficient alimentation for the entire population”. Consistent with this
provision, the new Constitution also states in its Article 255.I.8 that
“negotiation, signature and ratification of treaties will be governed by the
following principles: security and food sovereignty for all the people;
prohibition of importation, exportation production and marketing of
genetically modified organisms and toxic elements, which damages the health
and environment”.

C. TRADITIONAL KNOWLEDGE AND THE RIGHTS OF INDIGENOUS COMMUNITIES

25. The process of review of Article 27.3(b) should take into account the
United Nations Declaration on the Rights of Indigenous Peoples as noted in
Part II above and the protection of traditional knowledge and folklore.

26. One of the cornerstones of Bolivia’s new Constitution is full respect
for the culture and rights of indigenous peoples. For example Article 100 of
the Constitution recognizes “the cosmovision1, myths, oral history, dances
and cultural practices, traditional knowledge and technologies of indigenous
peoples and peasants as their heritage [and that] this heritage is part of
the expression and identity of the State”. Article 382 states that it “is
the competence and duty of the State to defend, recover and protect
biological material coming from natural resources, ancestral knowledge and
anything else that originate in the territory”

27. The indigenous peoples’ cosmovision has been a structural element in the
design of the National Plan of Development. This philosophy is reflected in
the indigenous concept of “Suma Qamana” (that can be translated as “living
well”) which supports the idea that humans should live in harmony and
equilibrium with nature. The strong connection that Bolivian indigenous
culture has with nature is the heritage of humanity and represents an
alternative to the capitalist model of development, that is in crisis and in
which development is linked to the depredation of natural resources for
short-term profit.

28. In addition, the United Nations Declaration on the Rights of Indigenous
Peoples was incorporated into the national legislation of Bolivia in
November 2007 through Law 3760, which requires all Bolivians to comply with
the Declaration.

29. Therefore, the Plurinational State of Bolivia shall prevent the
patenting of any form of life and the granting of private monopolistic
intellectual property rights on any traditional-ancestral knowledge.

IV. CONCLUSION

30. Following the above, we conclude on the need to urgently review Article
27.3(b) to:

(a) prohibit the patenting of all life forms, including plants and animals
and parts thereof, gene sequences, micro-organisms as well as all processes
including biological, microbiological and non-biological processes for the
production of life forms and parts thereof;

(b) ensure the protection of the innovations of indigenous and local farming
communities and the continuation of the traditional farming practices
including the right to save, exchange and save seeds, and sell their
harvest;

(c) prevent anti-competitive practices which threaten food sovereignty of
people in developing countries; and

(d) to protect the rights of indigenous communities and prevent any private
monopolistic intellectual property claims over their traditional knowledge.

31. The above-mentioned issues are long outstanding and thus the delegation
of Bolivia hopes that the issues will receive immediate attention. The
delegation of Bolivia will also further elaborate on the issues highlighted
above.

__________

1 “Cosmovision” denotes a set of concepts and beliefs related to the
universe, nature and life. The concept of “Cosmovision” is similar to the
German concept of “Weltanschauung” which is a framework for generating
various dimensions of human perception and experience like knowledge,
politics, economics, religion, culture, science, ethics and the relationship
between nature and human beings. The closest translation of this word may be
the English concept of “worldview” or “comprehensive world view”.

3 Comments Bolivia’s position about life forms patentability

  1. Sepp Hasslberger

    Excellent proposal by the Bolivian delegation to the World Trade Organization’s Council for Trade-Related Aspects of Intellectual Property Rights.

    It is time someone stood up against the gawdawful practice of patenting something which can in no case be considered to be a human invention – plant, animal or any other life forms.

    The Bolivians are quite right and should be supported in their demand to

    “prohibit the patenting of all life forms, including plants and animals and parts thereof, gene sequences, micro-organisms as well as all processes including biological, microbiological and non-biological processes for the production of life forms and parts thereof…”

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