February 2010 – Bolivia has challenged, during the World Trade Organization (WTO) negotiations of the Council for Trade-Related Aspects of Intellectual Property Rights (TRIPS), the prevailing philosophy that life forms should be patentable and that they can be considered to be ‘intellectual property’.
Bolivia’s capital city La Paz – by Sepp
The purpose of the ongoing negotiations is a review of Article 27.3(b) of the TRIPS agreement, which reads:
“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.”
Patentability of life forms has brought serious problems, especially for farmers (see for example the case of Monsanto against Schmeiser for violation of its patent on genetically modified canola seeds which went all the way to the Canadian Supreme Court) and for the biological resources of whole countries who find that all of a sudden, their herbs and some of their traditionally used seed varieties may have been patented by a multinational corporation to exclusively exploit, leaving the country or culture of origin high and dry.
A case in point is Monsanto patenting the wheat used for making chapati – the flat bread staple of northern India. According to this article, “there is little hope of the Indian government intervening to prevent the chapati being patented by Monsanto. It simply cannot afford the legal fees, having spent hundreds of thousands of dollars fighting a US decision to grant a Texan company a patent on basmati rice in 1997.”
An apt expression that has been coined for this kind of theft is “biopiracy”. According to an article in Wikipedia, “Biopiracy is a term used to describe situations where corporations from the developed world claim ownership of, or otherwise take unfair advantage of, the genetic resources and traditional knowledge and technologies of developing countries.”
So one might applaud the Bolivians for taking up the issue of the patentability of life as part of the ongoing review of the TRIPS agreement. Here are some excerpts of the arguments in their lengthy submission:
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The question of patentability of plants and of biological organisms in general, has been festering for some years. Issues that were raised in previous discussions and that are still unresolved are:
“The amendments [to Article 27.3(b)] 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.”
Further, a proposal filed in October of 2001 by the Least-Developed Countries says 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.”
The Bolivian delegation, in it submission, makes reference to past submissions that raised the need “to prohibit the patenting of all life forms, the need to protect farmers’ rights, genetic resources, traditional knowledge and traditional practices in developing countries.”
Bolivia has adopted a new Constitution in 2009, which states that the negotiation, signature and ratification of treaties will be governed by respect for the rights of indigenous peoples and peasants as well as harmony with nature, protection of biodiversity and prohibition of the private appropriation of plants, animals, micro-organisms and any living matter for exclusive use and exploitation.
The United Nations has adopted a Declaration on the Rights of Indigenous Peoples in 2007, which recognizes, in Article 31, 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.”
Bolivia questions the rationale behind the TRIPS agreement’s Article 27.3(b) saying that 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. Since the TRIPS agreement was adopted, there has been a proliferation of patents and patent applications involving micro-organisms and other biological resources, which has serious social, economic and ethical implications, adversely affecting especially for developing countries.
Patent holders are generally in the developed countries. Those not having any patents, including indigenous people, are therefore prevented from utilizing their own resources, which have been patented elsewhere. Competition is skewed, affecting the economic situation and the livelihood of farmers in the developing countries. The patenting of life forms is also unethical as it is against the moral and cultural norms of many societies and indigenous peoples.
The TRIPS agreement requires that plants be patentable, or at least be considered intellectual property by some similar system. Since most of the patenting is done in the developed nations, there has been 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. Corporate control over agriculture is favored by the TRIPS system.
The new Bolivian constitution, making reference to the United Nations Declaration on the Rights of Indigenous Peoples, now makes it necessary for Bolivia to prevent the patenting of any form of life and the granting of private monopolistic intellectual property rights on any traditional-ancestral knowledge.
The proposal of Bolivia therefore is 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 their parts;
• 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
• prevent anti-competitive practices which threaten food sovereignty of people in developing countries; and
• to protect the rights of indigenous communities and prevent any private monopolistic intellectual property claims over their traditional knowledge.
The full text can be found here: Bolivia’s position about life forms patentability