U.S. agriculture wary as Monsanto heads to Supreme Court

#Monsanto, #PatentsOnLife

(Reuters) – A 75-year-old Indiana grain farmer will take on global seed giant Monsanto Co at the U.S. Supreme Court next week in a patent battle that could have ramifications for the biotechnology industry and possibly the future of food production.

The highest court in the United States will hear arguments on Tuesday in the dispute, which started when soybean farmer Vernon Bowman bought and planted a mix of unmarked grain typically used for animal feed. The plants that grew turned out to contain the popular herbicide-resistant genetic trait known as Roundup Ready that Monsanto guards closely with patents.

The St. Louis, Mo.-based biotech giant accused Bowman of infringing its patents by growing plants that contained its genetics. But Bowman, who grows wheat and corn along with soybeans on about 300 acres inherited from his father, argued that he used second-generation grain and not the original seeds covered by Monsanto’s patents.

A central issue for the court is the extent that a patent holder, or the developer of a genetically modified seed, can control its use through multiple generations of seed.

The Supreme Court’s decision to hear the dispute has sparked broad concerns in the biotech industry as a range of companies fear it will result in limits placed on their own patents of self-replicating technologies.

At the same time, many farmer groups and biotech crop critics hope the Supreme Court might curb what they say is a patent system that gives too much power to biotech seed companies like Monsanto.

“I think the case has enormous implications,” said Dermot Hayes, an Iowa State University agribusiness and economics professor who believes Monsanto should prevail. “If Monsanto were to lose, many companies would have a reduced incentive for research in an area where we really need it right now. The world needs more food.”

The court battle has ballooned into a show-down that merges contentious matters of patent law with an ongoing national debate about the merits and pitfalls of genetically altered crops and efforts to increase food production.

More than 50 organizations – from environmental groups to intellectual property experts – as well as the U.S. government, have filed legal briefs hoping to sway the high court.

Companies developing patented cell lines and tools of molecular biotechnology could lose their ability to capture the ongoing value of these technologies if the Supreme Court sides with Bowman, said Hans Sauer, deputy general counsel for the Biotechnology Industry Organization.

The case also is important to regenerative medicine that relies on stem cell technologies. A stem cell by definition is a cell that can self-replicate, thus the case may answer the question of whether a patentee can control progeny of a patented stem cell, according to Antoinette Konski, a partner with Foley & Lardner’s intellectual property practice group.

Monsanto, a $13 billion behemoth in agricultural seed and chemical sales, also sees the case as much bigger than itself.

“This case really centers on the question of twenty-first century technology such as what we bring in agriculture and other companies bring for say stem cell research or nanotechnology…. and how they’re going to be handled under principles of intellectual property law,” said Monsanto general counsel Dave Snively.

SELF-REPLICATING

Because seeds self-replicate, creating progeny when planted, they are unlike more traditional patented products. Using a computer or smartphone does not create more computers or phones. But using a seed can make new seeds.

For generations all around the world, farmers have practiced the art of saving seed, holding onto some of the grain they harvest each season to plant in a subsequent season. The advent of patented biotech seeds has changed that as Monsanto and rival seed developers barred farmers from seed saving, arguing that if farmers do not buy new seed each year the companies cannot recoup the millions they spend to develop the specialty seeds.

Transgenic crops, which splices genes from other species into plant DNA, have given farmers crops that resist insects and tolerate treatments of herbicide, making killing weeds easier for farmers. The majority of U.S. corn and soybean acres are now planted with patented biotech seeds.

The case before the Supreme Court traces its roots to 1999, when Bowman decided to plant a “second crop” of soybeans after he harvested winter wheat from the farmstead he runs near Sandborn, Indiana.

While he used Monsanto’s Roundup Ready engineered seeds for his main, or “first” crop, Bowman said he decided to use inexpensive commodity grain that he could purchase from a local grain elevator for his “second” planting of soybeans in late June. Yields are generally lower for late-planted soybeans because conditions tend to be more optimal in April and May.

The mixture of grain Bowman bought, which he dubbed “junk,” carried no patent technology agreement and no directive prohibiting seed saving as do the bagged and branded soybean seeds sold by Monsanto and other seed companies.

The soybean crop turned out so good that Bowman saved some of the seed generated by the plants and sowed them the following year for another late crop. He repeated the process year after year, sometimes supplementing his second planting with more commodity grain he used as seed. All the while he continued to buy first-generation seed each year for his main crop of beans. For those purchases, he signed required “technology agreements” pledging not to save the offspring of those seeds.

Monsanto began investigating Bowman’s planting activities in 2006 and asserted that even though he was not saving seed from the progeny of the first-generation seeds he bought, his use of commodity grain and the progeny was a patent violation.

Bowman argued that Monsanto’s rights to the seeds he purchased from the grain elevator were exhausted because they were not the first generation seeds other farmers had purchased and planted, but rather a mix of later generation progeny.

“It didn’t occur to my mind that this would be a problem,” said Bowman, who doesn’t have a computer at home so he goes to the library to read about his case on the Internet. “Farmers have always been allowed to go buy elevator grain and use for seed. You have no idea what kind of seed you’re buying at an elevator. They claim I’m making a new seed by planting it. But that’s far-fetched reasoning.”

Bowman said he just wanted cheaper seeds. His legal brief states the technology fees for Roundup Ready soybeans have risen to $17.50 per bag by 2009 from about $4.50 in 1996.

BIG STAKES FOR BOTH SIDES

A lower court ruled in favor of Monsanto, and in May 2010 it ordered Bowman to pay the company $84,456. The Federal Circuit Court of Appeals also sided with Monsanto in September 2011.

The Supreme Court’s decision to hear the case has raised the hopes of those backing Bowman.

In one of a dozen briefs filed in his support, farmer, environmental and food safety groups claim the courts have carved out an exception to existing patent law that gives biotech companies too much control. They want the Supreme Court to broaden farmers’ abilities to use seed, not restrict them.

“Through a patenting system that favors the rights of corporations over the rights of farmers and citizens, our food and farming system is being held hostage by a handful of companies,” said Andrew Kimbrell, executive director of the Center for Food Safety, one of the groups supporting Bowman. “Nothing less than the future of food is at stake.”

Bowman’s attorneys allege specifically that the appellate court created a “conditional sale” exception to a long-standing doctrine of patent exhaustion in a way that conflicts with existing law.

But Monsanto backers say without extended patent protection, technology companies will not be able to recoup their investment in research and development, and advantageous new technologies could be shelved.

“This case presents a matter of great importance to America’s farmers and the decision will have acute impacts on how agricultural producers will… meet the nutritional demands of a growing global population,” states one brief filed by 20 soybean, corn, wheat and sugar beet growers groups.

Back on his farm in Indiana, Bowman is looking forward to his trip to Washington and said he does not understand what all the fuss is about. He said few farmers make use of commodity grain for planting, and he doesn’t see how a few hundred acres of soybeans hurts Monsanto’s billions in annual revenues.

“I bought new seed every year for my first crop. If I had such a good scheme why did I do that,” said Bowman.

“If I done something wrong I should pay for it. If I didn’t then I shouldn’t. I don’t think I did,” he said.

(Reporting By Carey Gillam; Editing by Tiffany Wu and Leslie Gevirtz)

By Carey Gillam

http://finance.yahoo.com/news/u-agriculture-wary-monsanto-heads-061928893.html;

 

British firm’s bid to patent ginger foiled: After Neem and Turmeric its Ginger’s turn

http://epaper.timesofindia.com/Default/Scripting/ArticleWin.asp?From=Archive&Source=Page&Skin=TOINEW&BaseHref=CAP/2012/01/04&PageLabel=1&EntityId=Ar00105&ViewMode=HTML

Kounteya Sinha TNN

New Delhi: India has foiled an attempt by a British pharmaceutical company to patent usage of ginger to treat cold. While Indians have been gulping down ‘adrak chai’ for generations as a home remedy, Nicholas John Larkins, London, filed a patent application (GB2436063) titled “Pharmaceutical composition for the treatment of excess mucous production” on March 16, 2006 at the British patent office. The firm claimed a “unique finding” in the use of ginger (Zingiber officinale) and kutki (Picrorhiza kurroa) for the treatment of cough and lung diseases.
“Within two weeks of India providing evidence (including 18th century texts), the attempt to pirate India’s traditional medicinal knowledge was struck down by the UK patent office in 2011,” a health ministry official said.
Remedy Rebound
British pharma firm files for patent in 2006, claiming it discovered use of ginger and kutki plant in treatment of cold India cited medicinal texts dating back to the 18th century on use of ginger to treat cough, asthma & lung diseases British patent office accepts Indian evidence, throws out application 5 years later Database helped thwart UK patent bid 
New Delhi: Countering the patent claims of British pharmaceutical company on using ginger for the treatment of cough and cold, the department of AYUSH and Council of Scientific and Industrial Research (CSIR) intervened and provided evidence from age-old ayurveda and unani books, dating back to the 18th century that talked about ginger and kutki being used alone or in combination with other ingredients to treat cough, bronchial asthma and lung diseases.
The books that were referred to as evidence by CSIR included Ilaaj-al-Amraaz (18th century), Bhaisajya Ratnavali and Bharata Bhaisajya Ratnakara (1000 BC), Bayaaz-e-Kabir (1938 AD), Muheet-e-Azam (19th century) and Khazaain-al-Advia from the 20th century.
“India through the Traditional Knowledge Digital Library (TKDL) submitted its prior art evidences on April 25, 2011. The examiner terminated the patent application before grant,” a health ministry official said. Till about 10 years ago, around 2,000 wrong patents concerning indigenous systems of medicine were being granted annually at the international level due to lack of evidence provided by India. The digital library has been a real boon for India. More than 2.26 lakh rare medical formulations which were part of the ancient Indian texts have been dug out, transcribed, documented and digitized into the path-breaking TKDL to protect them from biopirates.


Intellectual Property, Agriculture and Global Food Security

 

 

Read online http://www.iddri.org/Publications/Publications-scientifiques-et-autres/Intellectual-Property,Agriculture-and-Global-Food-Security

Description

‘This thoughtful book raises important issues about ownership of agricultural resources, the environment and food security. Claudio Chiarolla has written an important book that challenges traditional notions of plant genetic resources and agricultural research. The author’s detailed and thorough approach ensures that the book will make a valuable contribution to the debate about sustainable agricultural development and it is highly recommended to anyone interested in intellectual property rights and sustainable agriculture.’
– Duncan Matthews, Queen Mary, University of London, UK

 

‘The instability of the global food supply system requires our urgent attention. There are no easy solutions but the starting point must entail a critical analysis of the existing institutions governing the ownership and exchange of the plant genetic resources that underpin our long-term food security. Dr Chiarolla’s book makes a valuable contribution to the debate.’
– Graham Dutfield, University of Leeds, UK

‘This book captures some of the key issues underlying the ever-lasting food crises both at national and global levels. It demonstrates how global policies impact national and local actions while food insecurity seems to be a constant companion to many, in spite of decades of our work on securing food as a fundamental right for the poor.’
– Balakrishna Pisupati, United Nations Environment Programme, Kenya

Further information
This well-researched book focuses on international governance of crop diversity and agricultural innovation. It highlights the implications that the future control of food, including access to agricultural resources and technologies, might have for global food security. Claudio Chiarolla analyses developmental implications of global regulatory reforms that impact on access to agricultural knowledge, science and technology for sustainable development. Current global arrangements fall short of halving the proportion of people who suffer from hunger in accordance with the Millennium Development Goals’ framework. Therefore, the book proposes ways to achieve international equity in the way agricultural research is conducted, how its results are disseminated and the benefits shared. This definitive study will be a valuable resource for policymakers and practitioners, legislators, academic professionals, civil society activists and scholars in legal, environment and development studies.

Industry paid for IP seminars to train judges

Author(s): Latha Jishnu
Issue: Sep 14, 2011

Microsoft and Indian Music Industry funded FICCI to hold roundtable for Maharashtra judiciary; judges handling piracy cases special invitees

Leaked documents of correspondence between lobby group FICCI and industry have revealed an unsavoury nexus between the two in funding a roundtable on intellectual property (IP) matters for judges in Maharashtra, many of whom were specially invited because they were hearing cases of IP crimes such as piracy.

According to the emails leaked by an organisation calling itself the Indian IP Leaks Team, FICCI was in regular correspondence with Microsoft Corporation India Ltd and Indian Music Industry (IMI), both litigants in IP cases in courts here, on funding for a judicial roundtable organised by the Maharashtra State Judicial Academy. The event, called the Judges’ Round Table on IP Property Rights Adjudication was eventually held in July 2010 after letters went to and from these organisations between September 2009 and March 2010.

Microsoft ultimately agreed to pick up a tab for Rs. 8 lakh against the Rs. 18 lakh demanded by FICCI. This funding was for travel and accommodation for the participating judicial officers. The funds were apparently routed through their law firm Amarchand Mangaldas. From the mail dated October 26, 2009, it also appears that Amarchand Mangaldas had a role in deciding the agenda for the roundtable. The mails were exchanged between FICCI officials and Ankhi Das, director, public policy—legal and corporate affairs of Microsoft India.

A second set of leaked emails relates to the correspondence between FICCI and IMI for funding the same roundtable, with the latter agreeing to pay Rs. 1.75 lakh on several conditions. An email dated 28 October 2009, the music industry group asks for the following:

“…insure that as many as possible Additional Chief Metropolitan Magistrates who are empowered to handle copyright cases are invited…
A list of speakers who would be addressing the Judges.
Human Resources Minister Kapil Sibal to inaugurate this function…
A representative from IMI to speak on copyright cases…”
Very discreetly, FICCI said no logos and branding would be used “…keeping in view sensitivity of the programme”.

Das could not be reached for comment despite calls to his mobile number, while a FICCI spokesperson said he would respond to these revelations but did not do so.

Indian IP Leaks Team says in a covering note that such funding “raised concerns about the ability of corporate interests like the pharmaceutical and IT industry, to easily access and influence judges’ rulings in IP cases in which they have an interest.” It also sought an investigation into the “questionable role that Indian industry bodies like Confederation of Indian Industry (CII), FICCI and law firms play in facilitating such roundtables, conferences or seminars involving the judiciary”.

According to this hitherto unknown group, “the facts revealed by the emails has highlighted the importance of preventing certain corporate interests from having unequal, extra‐judicial access to judges outside of the courtroom.”

The controversial issue of sensitising judges to IP issues has been highlighted several times in the Patently Absurd column that appears in Down To Earth.

How many gene traits can a seed have?

http://www.indianexpress.com/news/how-many-gene-traits-can-a-seed-have/843826/0

Sukhdeep Kaur Tags : genetically modified maize, SmartStax, Farm Progress Show, agri biotech company Posted: Fri Sep 09 2011, 01:26 hrs Decatur, Illinois:

At Springfields in the state of Illinois of the United States, the corn fields this year seem to be staring at a possible drought. In nearby Monmouth, field trials are on for drought-resistant corn. It will be the ninth trait after SmartStax, the genetically modified (GM) maize that has eight GM traits ‘stacked’ together — six for insect resistance and two for herbicide tolerance.
As food demand soars with the growing world population, the debate at the Farm Progress Show at Decatur in the US last week hinged on how many gene traits can a seed possibly possess in the times to come. Interestingly, amid the big machines that crop and harvest 1,000 to 10,000-acre US farms, the corporates were betting big on smallest amongst all that goes into farming — the seed.

As per the forecast of world’s biggest agri-biotech company, Monsanto, which has invested USD 1.2 billion last year on research in GM crops in 29 countries across the globe, by 2030 its GM corn may have more than 20 gene traits.

“In addition to the existing eight traits for insect resistance and herbicide tolerance, there may be a dozen other gene traits for improving yield, nitrogen use, nutritional value and next generation insect control,” said the chief technology officer of Monsanto, Dr Robb Fraley at the show.
Also in the pipeline are new gene traits in other major crop, soyabean. The new products promise weed control, zero-transfats and fungal resistance besides ensuring more beans per plant and more beans per pod. The other thrust areas for the corporates are cotton and vegetables.

The case for GM was once again argued on the basis of food security challenge.

“By 2011, there will be 7 billion people on the planet. But only 20 per cent of the world’s land is used to grow crops. The world’s population is growing by one per cent each year and food demand by 1.8 per cent. How do we grow all that food? The answer lies at the intersection of multiple technologies such as plant breeding, biotechnology and better agronomic practices,” Dr Farley said.

The Indian scene

India is among the top five countries in terms of GM crop acreage along with the US, Brazil, Argentina, Canada and China. India’s first and only commercialised GM crop so far is Bt cotton. Monsanto is currently holding field trials for its second crop in India, GM corn, in Gujarat. The other state that allowed field trials was Haryana but sowing in the 2011 kharif season could not take place as approval came late. After trials, commercial approval will be sought.

Other than Monsanto, agriculture genetics MNCs in the regulatory process are Dow Agrosciences for insect-resistant cotton and insect-resistant corn, Bayer for insect-resistant rice, Pioneer (DuPont) and Syngenta for insect-resistant and herbicide tolerant corn. Biotech research is also underway in many crops, both in private and public sector laboratories in India.

The Indian Regulator, Genetic Engineering Appraisal Committee (GEAC), had in June this year cleared applications and had since directed the companies to first get a no objection certificate from respective state governments for field trials before they get a final approval.

While states like Andhra Pradesh, Gujarat and Haryana have already granted approval for field trials of many of these seeds, Karnataka, Tamil Nadu, Maharashtra, Punjab, Chhattisgarh, Madhya Pradesh, Uttar Pradesh, Rajasthan and Bihar have either denied or deferred decision on GM crops.

But the state approvals will not be required after the Biotech Regulatory Authority of India, a five-member body, comes into place. The BRAI bill, likely to be tabled in Parliament next session, is being awaited by the Association of Biotech Led Enterprises-Agriculture Group, a consortium of biotech companies as it will provide them a single window clearance. Currently, biotech companies have to get approvals from agriculture, environment and science and technology ministries.

‘Not in public interest’

Several agriculture groups say GM crops are not in national and public interest. “Currently, over 93 per cent of Bt cotton seed is controlled by Monsanto in India. We need to first address the issue whether Bt crops are needed, when non-pesticide management is already giving us good yields as witnessed in Andhra Pradesh. The argument that it cuts pesticide use has been disproved in a study conducted in Gujarat that found pesticide use going up in Bt cotton. We have to look at long-term solutions to depletion of productive resources besides addressing concerns of biodiversity and biosafety. We tried to present our views on the BRAI bill to the government in 2008 but the subsequent versions are getting worse. It is clearly aimed at making things easier for biotech companies by bulldozing resistance,” says Kavitha Kuruganti, national convenor, Alliance for Sustainable and Holistic Agriculture, a network of 400 farmers and consumer groups.

Karuganti argues that even at biotech hubs in US such as Illinois, farmers are facing herbicide resistance in the form of “superweed”. “It would be foolish for India not to learn lessons, “ she adds.

(The writer was on a Monsanto-sponsored tour to the Farm Progress Show at Decatur, Illinois)

‘PESTICIDES’ IN DRUGS

Author(s): Latha Jishnu

Issue: Aug 31, 2011
Sharad Pawar’s provision for protecting test data in the Pesticides Bill could spill over into trade agreements and hit the drugs industry, too

imageIllustration: Karno GuhathakurtaWhy is the pharmaceutical industry taking such a keen interest in the Pesticides Management Bill, 2008, or PMB, which would appear to be as far removed from drugs as chalk from cheese? The Bill, pending in Parliament since 2008, is all set to be debated in the current session with agriculture minister Sharad Pawar having indicated an urgency to get it passed. The proposed regulation is intended to improve the quality of pesticides available to Indian farmers and introduce new, safe and efficacious pesticides.

So what do drug manufacturers have to do with such a law? Embedded in it is a critical section that provides three years of data exclusivity or protection for test data furnished by the original registrant of any new pesticide molecule that is being marketed in the country. Data exclusivity is a form of intellectual property right (IPR), usually related to medicines, and this is how it works. When a medicine is being marketed for the first time in any country, the pharmaceutical company has to obtain marketing approval from the drug regulatory authority. This approval is based on the test data related to efficacy and safety of the drug that is generated in clinical trials. Later, when the generic version of the drug comes up for marketing approval, the regulator relies on the test data submitted by the original registrant. In the normal course, that is. However, to keep generic competition out, originator companies are demanding data exclusivity that will prevent the drug regulators from relying on test data already in their possession for subsequent approval of generic versions of the medicine—or in this case, pesticides. In recent free trade agreements (FTAs) that have been signed with different countries, the US and the European Union (EU) have insisted on data exclusivity for varying periods on the ground that it is a World Trade Organization (WTO) requirement. But trade analysts have pointed out that this is a developed country interpretation; Article 39.3 of the international agreement on trade related aspects of IPR (TRIPS) merely refers to the need for data protection and does not mention exclusivity at all.

India came face to face with this question when it began negotiating the EU FTA. It would have acceded to the demand for data exclusivity had not patient rights groups and health activists across the globe begun a campaign against it, pointing out that data exclusivity would have put a clamp on the production of generic medicines for a variety of life-threatening diseases. After prevaricating for close to two years, the EU finally gave a public assurance that it would not be insisting on data exclusivity in its FTA. But here comes the rub.

The inclusion of such a provision in the Pesticides Bill signals a huge worry. Health campaigners point out that even if the EU negotiations have dropped the contentious data exclusivity, the fact that such a provision exists in an Indian law would have a ripple effect. The EU could then legitimately argue that there was no reason to keep out data exclusivity from its FTA or, indeed, from any of the other agreements that are in the making, including the one with the US. In other words, Sharad Pawar would be creating an Open Sesame to data exclusivity. This is a danger that the generics industry in India is acutely aware of. In recent months it has stepped up its lobbying, its latest attempt being a critique of a government report that in 2007 had argued for data exclusivity for agrochemicals.

The Indian Pharma ceutical Alliance, association of the country’s big generic companies, retraced the genesis of the Pesticides Bill to the Satwant Reddy report and exposed its flawed reasoning—yet again after the heat and dust it had kicked up four years ago.

The IPA-commissioned report has questioned the thrust of the Satwant Reddy report which justified the need for differential treatment for agrochemicals as compared to pharmaceuticals primarily on account of the higher costs and effort involved in generating test data. It says: “No data whatsoever is furnished estimating these costs and what period of data exclusivity would be justified in relation to these costs, except to assert that registration-related studies for agricultural chemicals are huge.”

In seeking to preempt data exclusivity for the agrochemicals sector, IPA has joined forces with the Pesticides Manufacturers and Formulators Association of India, just one of the many alliances opposing the Pesticides Bill. On the political front, the BJP and the Left are in concert, the former in particular taking an aggressive public stance on the proposed law. Its Kisan Morcha raises a pertinent point: why is the ministry of agriculture in charge of pesticides management when the world over it is the task of the environment ministry? The bigger question, though, is whether pesticides will spill over into pharmaceuticals.

New varieties, old foundations: Small farmers in IPR regime

By Shalini Bhutani

The Indian Council of Agricultural Research (ICAR), which was founded
after Independence in 1947, was preceded by the Imperial Council of
Agricultural Research set up in 1929.

Ironically ICAR celebrated its 83rd foundation day last weekend on July
16, rather than its 64th! The European legacy continues. Our country may
have got independence, but our agriculture and our farmers are still
struggling for that.

Another foundation of a European idea was literally laid this month. On
July 8 the foundation stone of the new office buildings of India’s
Protection of Plant Varieties and Farmers’ Rights Authority (PPV&FRA)
was laid in the Pusa Campus of ICAR. More than the buildings, it is
intellectual property rights (IPR) that have been institutionalised in
agriculture in the country. This in itself manifests the big change in
the national agricultural research landscape since the ICAR was first
set up.

The history of agriculture in India is believed to go back to 9,000 BC.
In fact this is also the history of free exchange of crop varieties
amongst farmers. This made possible the many crop innovations on the
field. Sharing not only gave free access to diverse planting materials
but also allowed for the exchange of know-how, giving the farmers enough
to select from for the production of plants with desirable traits.

Such informal breeding of new crop varieties is the foundation on which
formal research has been built. And in fact national and global gene
banks would not have been filled with traditional varieties for free, if
farmers had refused to share the crops they have developed.

Yet small farmers have never asked for IPR for their innovation. But
formal breeders in developed countries did! In Europe, in the ’60s they
asked for IPR in the form of plant breeder rights. This was to be an
exclusive right to sell and produce the new plant variety. The
foundation for limiting free sharing was cemented then.

The first laws on plant variety protection (PVP) were passed in European
countries—The Netherlands, Germany, etc. in the early ’60s. The PVP laws
granted breeders control over the planting material. It also gave them
the right to make money from the use of ‘their’ variety for a certain
number of years. The first legal instrument for international
recognition of ‘rights’ of breeders was also a Europe-led UPOV – The
International Union for the Protection of New Varieties of Plants dated
1961. Its 1991 version as it stands today allows breeders to even claim
royalties for the produce harvested from PVP-‘protected’ varieties,
while restricting farmers’ rights and researcher access.

Transplanted concept
This European concept was transplanted into India after the World Trade
Organisation (WTO). The Indian law—Protection of Plant Varieties and
Farmers Rights Act was issued in 2001 and the Authority set up in 2005.
While the officialdom takes pains to explain that the Indian version is
a unique variety of PVP law in itself. Yet the fact of the matter is, it
plants IPR on crops nonetheless. Today professional plant breeders be it
in the government research institutions or in private seed corporations
are the ones going after PVP-type IPR ‘protection.’

The name of the law misleads the lay person and unsuspecting farmers
into believing that this law is both about conservation, farmer welfare
and benefit sharing. On the occasion of the foundation day of ICAR, the
first of the Plant Genome Saviour Awards (2009-2010) were given out to
two local communities. One from Odisha for conserving rice and the other
from Karnataka for medicinal plants.

The awards have been instituted by the PPVFRA. While, it is the first
official attempt to acknowledge the outstanding contribution of
individual farmers and farming communities in conserving
agro-biodiversity, it does so in an IPR frame. The law says to these
seed keepers: you save and give us, but we ‘develop’ and sell ‘new’
varieties (back to you).

For the farmers’ rights provision in the same law comes with a proviso.
It allows them to sell only to the extent that their seed is not branded
seed of a variety which has the PVP certificate under the law. The
message to farmers is clear, keep out of the formal research and seed
markets. And it’s important to recall that when the Government of India
through its ministry of agriculture first mooted this Act in the 90s, it
did not have any chapter or provisions on Farmers Rights.

That the law allows for ‘farmers varieties’ to be registered is a step
to woo them into the IPR system. No amount of award money from the
National Gene Fund or citations and shawls will make good for the loss
of farmer freedoms when they have to buy PVP-protected seeds to continue
to be…farmers.

Awardee communities such as these are the only islands of hope and
diversity in a sea of disasters. But the wave of IPR could break into
the very foundations of their small farm agriculture.

(The writer works on issues of trade, agriculture and biological diversity)

http://www.deccanherald.com/content/179296/varieties-old-foundations-small-farmers.html

India’s IPR policy: Being egalitarian or foolhardy?

DECCAN HERALD
13th October 2009

India’s IPR policy: Being egalitarian or foolhardy?
Kanchi Kohli and Shalini Bhutani
The world is full of contradictions and so its governance also reflects that.
If one takes this reality as a given, especially in the Indian context, then the dilemmas of govern-‘mentality’ might not come as a surprise anymore. Here is a closer look at the much controversial Intellectual Property Rights (IPRs), and some recent official articulations on it.

IPRs like patents, trademarks or copyrights, supposedly protect  new and innovative products giving the inventor private rights over their sale, import, export and distribution. Any commercial use of the product cannot be without due permissions and royalties to the ‘original’ inventor.

This is what large seed corporations and agriculture research giants are trying to cash in on. IPRs today are a mainstay of profit generation of many corporate and research bodies, be it agriculture, software, art, or medicine. Envisioning a world as it indeed was before — without IPRs, is considered to be a foolhardy dream. Ironically, many of the real innovators in traditional systems of medicine and small farm agriculture continue to situate themselves within a non-IPR world.

So, is Government of India indecisive or confused about which world it wants to belong to and protect? On the side of private profit or on encouraging common heritage and growth of shared knowledge and collective systems?

In August 2009, after a long hiatus the ministry of environment and forests (MoEF) released its latest state of environment report (SOE) 2009 for India. It has reference and makes use of text from page 25 of a 2002 briefing put out by two NGOs, Grain and Kalpavriksh titled ‘Traditional Knowledge of Biodiversity in Asia-Pacific — Problems of Piracy & Protection.’ The SOE deeply questions the role of IPRs and states that IPRs as prescribed through international treaties are being used by commercial interests to gain ownership and control over traditional knowledge. The increased support of the government in facilitating this exercise is also acknowledged and also the fact that communities are struggling to sustain traditional practices in adverse conditions.

On the same page of the SOE is a set of recommendations on traditional knowledge protection. Therein is a very refreshing mention, that one of the ways forward is actually examining and highlighting alternatives to IPRs to be able to protect traditional knowledge. It also states that there is a need to strengthen a unified demand to amend and review the World Trade Organisation’s TRIPs agreement, of which India is a signatory. Since the report is signed and endorsed by Jairam Ramesh, Union minister of state (environment and forests) and Vijay Sharma, the current secretary, MoEF, one has good reason to believe that the MoEF truly agrees to this non-IPR position.

But actions and other statements from the same ministry stand in contrast. The MoEF, its biodiversity regulations, the National Biodiversity Authority under it, all convey that documentation of traditional knowledge (TK) into digital libraries and databases is the first step in the protection of TK. The next step is to grant access of these databases to international patent offices so that they can check any existence of ‘prior art’ before granting of patent rights to the applicant!

This can certainly not be classified as a ‘non-IPR approach.’ A memorandum of understanding (MoU) has already been signed with the European Patent Office in February 2009 granting the EPO access to our Traditional Knowledge Digital Library (TKDL) and another like MoU is due to be signed with the US Patent Office anytime now. This has been reported by the minister, MoEF in the press coverage of what he said during the inauguration of the new office of the National Biodiversity Authority (NBA) in Chennai.

But are the European (EPO) and US (USPTO) patent offices interested in the TKDL for verification of any infrignments? Or would the access to this centralised database be to delve deeper to create new ‘innovations’ based on the knowledge contained therein? The TKDL currently contains transcriptions of over 2 lakh medicinal formulations from 148 books and 230 volumes of Unani, Ayurveda, Siddha besides 500 postures of Yoga.

Quite interestingly, the ministry of human resource development (MHRD) as early as 2006 had written to the prime minister that access to International Patent Offices should not be granted before a national access policy is finalised, and if access is granted then it will be a violation of India’s commitment to theConvention on Biological Diversity (CBD). The CBD mandates the principles of prior informed consent and disclosure of origin of the access before an IPR can be sought. The CSIR and the ministry of commerce’s department of industrial policy believed that since the knowledge in the TKDL is all public domain knowledge, the CBD policies don’t apply to it.

These arguments were ‘duly’ considered before access was granted to the EPO. It may be noted that India’s sui generis system for protection of traditional knowledge to be elaborated under the Biological Diversity Act, 2002 (as a follow up to CBD) is still to be worked out.

Yet, we continue to be keen to create new databases and grant access to international IPR offices as GoI ironically sees it as a means of protection of traditional knowledge. How about seeking real alternatives to the IPR system as stated in the new SOE report by the MoEF?

Source: http://www.deccanherald.com/content/30221/indias-ipr-policy-being-egalitarian.html