Utility Patents: Taking control over seed
By Devinder Sharma

The writing was clearly on the wall. The United States Supreme Court’s crucial ruling that upholds "utility patents" over plant varieties has merely affirmed it. And in the bargain, the American farmers have for all practical purposes lost the right to save seed.

The US Supreme Court’s judgement in December comes at a time when at the other end of the spectrum, India recognises the right of the farmer to save seed under a newly formulated Plant Variety Protection and Farmers’ Rights Act, 2001. For India, farmers’ right to not only save seed but also to share and sell is politically correct considering that a majority of the estimated 110 million farming families comprises small and marginal landholders. For America, agriculture is an industrial activity and therefore the world must conform to the "protective shield" laid down by the US government and its legal system for its seed and agri-business multinationals.

It is only a matter of time before the two diverse and diametrically opposite systems clash. The conflict that arises will surely have a profound impact on the farming communities in not only India but in the entire Third World where seed saving has been a practice ever since man began to farm. With the biotechnology industry throwing its weight behind any and every move that strengthens monopoly through a patent control over plant varieties and its genes and cell lines, it may not be long before the trade-related intellectual property rights (TRIPs) under the World Trade Organisation are re-interpreted.

Equally worrisome is the manner in which the US Supreme Court brushed aside two other laws -- the Plant Patent Act and the Plant Variety Protection Act, which many thought were the only route for seeking patent protection for plants and plant varieties. The court rejected the argument that patents for plants reproduced from seeds were not authorized under section 101 of the federal patent law. By a convincing 6-2 margin, the US apex court finally concluded that the patent law authorizes patents for sexually reproduced plants. Such a patent protection would be available for 20 years.

It is not that the "utility patents" were not in vogue earlier. Already hundreds of utility patents had been granted to seed multinationals like Monsanto and Pioneer Hi-Bred International Inc. Although the US Justice Department had earlier warned that limiting the scope of the federal law to exclude sexually reproduced plants would reduce incentives for research and development in agricultural and horticultural areas, the fact remains that such ëutility patentsí have been the greatest hurdle to crop improvement.

There is this classical case of a "utility patent" over a hybrid maize variety. At the time when the International Center for Maize and Wheat Improvement (CIMMYT) in Mexico made available the semi-dwarf improved varieties of wheat to the developing countries, literally sowing the seeds of green revolution, a single-cross hybrid variety of corn was denied to India. This variety, which was responsible for the growth of the corn sector in America, was covered under a "utility patent" in America, and therefore was never made available to India. With the result that despite India being the seat of the green revolution, maize production never really picked up.

The "utility patent" malady meanwhile has got into the TRIPs agreement. And it is here that even the civil society groups have failed, and failed miserably, to foresee the threat that loomed large. Article 27.3 (b) of the controversial TRIPs agreement, which incidentally is presently under review, categorically states that member countries should either have a patent or an effective sui generis system or a combination of both. While the research institutes and the NGOs vehemently and vigorously argued on whether or not the developing countries should accept the intellectual proprietary, they ignored to study the effectiveness and implications of how a combination of both the systems - a patent and a plant variety protection - would hamper whatever little that would be protected under a sui generis system of plant protection.

For instance, the international NGOs, including the Geneva-based think tanks, refrained from analysing the negative implications of having a two-tier system of plant protection in America. At every international forum, I had pleaded before the NGOs to examine the ramification of the term "a combination of both". How will the "utility patents" fare in comparison to the sui generis system being framed by the developing countries? How will the ëutility patentsí feature with respect to research and development? Whether the "utility patents" would override and render the plant protection laws infructuous? And finally, why shouldn’t TRIPs be only about a patent or an effective sui generis system? Why the term "a combination of both" should not be dropped?

It is true that in many industrialised countries, seed saving is no longer being practiced on a large scale. It is also true that the UPOV, which is globally being accepted as the only sui generis model, is keen on more stringent patent protection on plants than what is presently available. Exemptions for farmers to save seed were available in the UPOV 1978 convention. But in the UPOV 1991 Convention, which has come into force, farmers’ exemptions have been taken away. Farmers’ right to save seed is no longer granted. It has been made optional subject to the consent of the plant breeder, which in all plausible terms means "not granted". UPOV will, therefore, use the US Supreme Court’s decision to ensure that the "utility patents" become the global rule rather than an exception.

Developing countries, therefore, have little options left. Adopting and following the principles of farmers’ rights as enshrined in the Indian Plant Variety Protection and Farmers’ Right Act, 2001 may perhaps be the only viable and effective instrument to ward off the seed industry’s threat. Simultaneously, seeking suitable amendments in the TRIPs agreement, which is under review, will help in protecting the right of millions of small and marginal landholders. In the absence of such drastic measures, developing countries will only be aiding and abetting the process of seed colonisation. #

(Devinder Sharma is a New Delhi-based food and trade policy analyst)
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