The frame- work of TRIPS, within which the demand for Intellectual Property Rights (IPRs) on biological materials has arisen, is the emergence of biotechnology as a key economic sector.

Armed with patents, this technology is controlled by the multinational corporate sector which are in a position to facilitate or deny the use of this technology to others. For developing societies like India, this has critical significance for vital sectors like food and health.

In agriculture, biotechnology has made possible that genes conferring advantageous traits can be brought into food and cash crops from any source. In conventional plant breeding, genes (traits) could only be transferred within related species..

This new technology has revolutionized production of those drugs that were originally obtained from animal and human tissues, like insulin. TRIPS will impact on this system as also on drugs like antibiotics, which are derived from microorganisms like fungus and bacteria, which have to be patented in TRIPS.

The tussle for institutional control over genetic resources is for a simple reason. The developed world has the technological tools needed to convert genes to products. It does not have the raw materials, which are concentrated in the tropical developed countries. In order to overcome this limitation, a harmonized IPR regime for genetic resources has been introduced into the WTO, with its threats of trade sanctions against countries that do not comply.

For India there are three major areas of concern pertaining to IPRs on biological/ genetic resources as contained in WTO/ TRIPS.
 

1.    Geographical Indication.
The protection based on Geographical Indication is to be found in Section 3 of TRIPS. Article 22 as also 23 and 24 deal with the protection of goods that are geographically indicated. So far the protection is offered only to wines and spirits. The efforts of India and developing countries to have the protection extended to other ( agricultural ) produce like Basmati rice and Darjeeling tea, have been opposed by the developed countries. So far they have managed to keep such agricultural products of interest to us, out of TRIPs protection.

The economic importance of 'Geographical Appelation'.
An American company Rice Tech has received a patent on Basmati rice. This is an infringement of India�s ( and Pakistan's ) geographically indicated rights. A special product like Basmati rice not only has a huge market in the UK, Europe, USA and West Asia, it also commands premium prices there. The current export of Basmati rice from India is to the tune of Rs. 1800 crores ( Rs.1.8 billion ). Pakistan exports somewhat more than that. The revenue from all the Basmati rice sold in the world market goes either to India or to Pakistan. That is the strong economic incentive to have a geographically protected name and not allow others to use it. As Rice Tech has attempted to do with Basmati.

There are other sought after products like Darjeeling tea , Alphonso mango and Shahi litchi. Apart from these agricultural products , there are herbal drugs and nutraceuticals which are attracting increasing attention ..and patents. India has now enacted legislation on Geographical Appellations that will claim protection for certain products that are clearly associated with the region.

Geographical Indication is a form of Intellectual Property Right (IPR) included along with other IPR forms like patents and copyrights, in the Trade Related Intellectual Property Rights (TRIPs) chapter of GATT/ WTO .This clause found in Articles 22, 23, 24 of Section 3 deals with the protection of goods that are geographically indicated. The Geographical Indicated protection has been specially conceived for well known speciality products which are associated with a particular region.

So it is that the word �Champagne� is claimed exclusively by the Champagne region of France which is the geographical region from which the wine derives its world famous name. No other wine , even if it is made from the same grape variety , by the same method, and is identical in taste, aroma and other qualities , can be called �Champagne�. The reason is that the glamour and mystique that makes Champagne an exorbitantly priced , up-market product is associated with the name and not necessarily with the quality of the wine. French Champagne producers are aggressive about protecting this name and derive every single ounce of trade advantage by claiming the Champagne market exclusively for themselves.

Another well known instance of a Geographically protected product is that of �Scotch� whisky. No other whisky in the world even if it were to be indistinguishable in taste and flavour from Scotch whisky can use the name. This name belongs exclusively to the whisky producers of the Scottish highlands who derive the trade advantage of selling their whisky for five times the price of ordinary whisky. Geographically Indicated rights are protected fiercely by countries like France and UK because this protection translates into monopolies in the market and high earnings.

Similar to the exclusivity of Champagne and Scotch is that of Basmati rice. This very special long grain, aromatic rice is specifically associated with India and Pakistan. This is their geographically protected name which no one else can use. The focus of India�s challenge to the Basmati patent will have to centre around America�s violation of India and Pakistans� geographically Indicated rights by using the name Basmati.

India�s Geographically Indicated Rights over Basmati are accepted and implemented by the market place. Trading nations including Saudi Arabia and the UK. The Grain and Feed Trade Association in the United Kingdom, one of the largest importers of Basmati rice in the world, have stringent standards for using the term �Basmati�. Its traders can use this name only for the long grain, aromatic rice grown in India and Pakistan. Similarly, Saudi Arabia , the largest Basmati importer in the world and one of the largest consumers of Basmati, has labelling regulations that permits Basmati from only India and Pakistan to be labelled as such. American and Thai aromatic, long grain rices are denied the use of this name.
 

2.    Patents on Micro Organisms
There was never any choice offered on this. The GATT negotiation ended with all member states accepting that they would provide patent protection for micro-organisms.

Patents on microrganisms like bacteria, algae, fungus and virus will have far reaching consequences for developing societies. Self -reliant , sustainable agriculture will be adversely affected if our ability to develop biofertilisers and biopesticides, both based on micro organisms, will be hindered by foreign patents.

Bacterial strains like those which act on soil phosphates can make a tremendous difference to our agriculture. These bacteria break down inert soil phosphates to a form that plants can use as nutrients. Such bacterial use could potentially slash our phosphate fertilizer imports dramatically. We need to keep our avenues of research open.

Similarly strains of nitrogen fixing bacteria could significantly improve nitrogen uptake of plants and improve the protein content of our foods. This can be of immense significance in enhancing the quality of nutrition for poorer sections of society. The role of micro organisms in other areas like pharmaceuticals, bio-mining, energy etc. is well known. Self reliance in these sectors will also be affected by patents.

India could have tried to get out of the patent on micro organisms by invoking the clauses of odre public and offence to prevailing norms of morality. Unfortunately it did not. . Patents on microorganisms have been introduced in the draft Patent Amendment Act which is awaiting approval by Parliament.

Gene Campaign has made some recommendations to the Indian government to reduce the negative impact of microorganism patents. Primarily, the strategy is to keep the definition of microorganisms conservative and not agree to the inclusion of unconventional categories like genes and cells. The details are as follows.

1.Microorganisms for the purpose of this ( Indian) Act include:

Bacteria

Virus

Viroid

Protozoa

Algae

Lichen

Actinomyces

Fungii except edible fungii

2. Microorganisms do not include:

Variant forms

DNA

plasmids

prions

hybridomas

cells

cell lines

3. Naturally occurring microorganisms are not patentable.

4. Patentable microorganisms are those which have been produced by adequate human intervention and fulfil the criterion of novelty, non-obviousness and industrial utility. Mere discovery and isolation will not be considered sufficient human intervention.

5. Patents will not be granted on materials obtained from national and international collections and depositories.

6. When material is taken from a country, Article 15 of the Convention on Biological Diversity will have to be respected. No patents will be granted without prior informed consent and material transfer agreements.

7. When a patent is granted, the patent holder will be obliged to share the economic benefits with the communities of the country from where the material was obtained.

8. In view of the critical nature of the subject matter, the patented micro organism will remain free for scientific research and experimentation.

9. Patents will not be granted on a broad basis ( overarching patents with a very wide scope ).

Patents will be granted for the organism only with respect to that particular function / property that constitutes the invention. The organism will remain free for others to create other inventions.

10. A Compulsory licensing provision will be made available to safeguard Food , Health ,Defence & Environmental security.
 

3. Sui Generis System for Plant Varieties
The WTO / TRIPs requires every member country to provide either a patent or an effective sui generis system to protect newly developed plant varieties.

India and most developing countries have chosen the sui generis system. Developed countries are pushing for a narrowing of the sui generis option to the model provided by the Union for the Protection of Plant Varieties or UPOV. This is unfair and uncalled for. UPOV is not mentioned in the TRIPS Agreement . Developing countries must ensure that there is no strengthening of the TRIPS Agreement, as some developed countries are pushing for in the upcoming reviews.
 

NO TO UPOV
The UPOV system promotes commercially bred varieties geared for industrial agricultural systems in which farmers have to pay royalties on such seed and the seed sector becomes an investment opportunity for chemical and biotech concerns. These breed plants to grow successfully with their proprietary chemical inputs or with their patented genes it the expense of more sustainable biodiverse systems.

Since PBRs are only given for a variety that is genetically uniform they automatically limit both what kind of seeds can be marketed and who can market them and so UPOV automatically discourages genetically diverse and locally adapted seeds from the market and from the field, say its critics.

Even in industrial nations there are grave problems associated with intellectual property protection of plant varieties, particularly the UPOV Convention. Three significant influences are listed below.

Impact on producers :

UPOV introduces legal and economic restrictions on farmers� livelihood practices. Farmers� rights are reduced by law to a "privilege", or derogation, which is subject to the vagaries of national law under the 19991 treaty. As a general principle, access to genetic resources declines through their privatisation and becomes subject to restrictive terms, whether for production or breeding purposes. Although farmers are responsible for 80-90% of the seed supply in the South, this will massively shift to private control under plant variety rights regimes. Contrary to what many people assume, corporate breeders do take farmers to court for alleged piracy of proprietary seed and they are actively pursuing more powerful means to prevent the reuse of seed on the farm (such as contract law governing purchase agreements, " terminator" type technologies and hybridisation).

Genetic erosion :

UPOV is biased towards the needs of industrial agriculture, especially through its DUS ( Distinction -Uniformity - Stability) criteria; the uniformity criterion alone has been singled out as favouring, for example, pure lines as opposed to varietal mixtures on the market. By allowing companies to collect royalties on seed sales, UPOV stimulates the corporate take-over of plant breeding which means fewer actors supplying the market. Corporations are not in the business of genetic conservation (they rely on genebanks) and tend to work with highly stabilised elite material with wide adaptation. These highly marketed varieties tend to replace more diverse traditional materials, and consequently the diversity being used by farmers declines.

Adverse impacts on R&D :

Impact studies conducted in one UPOV member state, the USA, report a decline in the flow of germplasm among breeders, a decline in the sharing of scientific information and a decline in the rate of progress in plant breeding. It is noteworthy however, that UPOV was obliged to revise its treaty in 1991 in order to address an important dysfunction in its own system. Instead of providing an incentive for innovation (breeding truly novel varieties), UPOV was providing an incentive for plagiarism (making slight changes on existing varieties and calling them "new" and worthy of protection).
 

Why we oppose UPOV
The UPOV model is not in India's interest for several reasons.

i.  There are no Farmers Rights in the UPOV system, only Breeders Rights.

ii.  UPOV conditions are for industrial, not agricultural economies where only 2 to 5% of the population practices agriculture and there are no small and marginal farmers.

iii.    UPOV laws are for countries where subsidy to agriculture is very high and farmers get paid for leaving their fields fallow.

iv.    In Europe agriculture is a purely commercial activity. For the majority of farmers in Asia however, it is a livelihood.

v.    In UPOV countries agricultural research is conducted by seed companies with private capital, so they maximise profits by market monopolies. In India and other developing nations, agricultural research is done in public institutions with the taxpayers money and it belongs to the people.

vi.    The UPOV system is very expensive. The cost of a Breeders Right certificate could range from a few thousand to a few hundred thousand rupees. This will exclude small companies, farmers co-operatives and farmer-breeders from participating.

vii.    If developing countries join UPOV ,they shall be forced to accept the patenting of Plant Varieties which is not in their interest. After the 1991 amendment, both patents and Breeders Rights are used in UPOV.
 

ALTERNATIVE TO UPOV
Gene Campaign and CEAD have drafted an alternative treaty to UPOV to provide a forum for developing countries to implement their Farmers and Breeders Rights. This treaty called the Convention of Farmers andBreeders, CoFaB for short, has an agenda appropriate for developing countries. It reflects their strengths and their vulnerabilities. It seeks to secure their interests in agriculture and fulfil the food and nutritional security goals of their people.

CoFaB seeks to fulfil the following goals :

* Maintain genetic diversity in the field

* Provide for breeders of new varieties to have protection for their varieties in the market, without prejudice to public interest .

* Acknowledge the enormous contribution of farmers to the identification, maintenance and refinement of germplasm

* Acknowledge the role of farmers as creators of land races and traditional varieties which form the foundation of agriculture and modern plant breeding,

* Emphasise that the countries of the tropics are germplasm owning countries and the primary source of agricultural varieties

* Develop a system wherein farmers and breeders have recognition and rights accruing from their respective contribution to the creation of new varieties

The salient features of COFAB are as follows

1. Farmers rights : Each contracting state will recognise the rights of farmers by arranging for the collection of a Farmers Rights fee from the breeders of new varieties. The Farmers Rights fee will be levied for the privilege of using land races or traditional varieties either directly or through the use of other varieties that have used land races and traditional varieties, in their breeding program.

Farmers Rights will be granted to farming communities and where applicable, to individual farmers. Revenue collected from Farmers Rights fees will flow into a National Gene Fund (NGF) the use of which will be decided by a multi-stakeholder body set up for the purpose. .

The Rights granted to the farming community under Farmers Rights entitles them to charge a fee from breeders every time a land race or traditional variety is used for the purpose of breeding or improving a new variety .

Rights granted to the farmer and farming community under Farmers Rights are granted for an unlimited period.

2. Breeders rights : Each member state will recognise the right of the breeder of a new variety by the grant of a special title called the Plant Breeders Right .

The Plant Breeders Right granted to the breeder of a new plant variety is that prior authorisation shall be required for the production, for purposes of commercial and branded marketing of the reproductive or vegetative propagating material, as such, of the new variety, and for the offering for sale or marketing of such material. Vegetative propagating material shall be deemed to include whole plants.

The breeder�s right shall extend to ornamental plants or parts of these normally marketed for purposes other than propagation when they are used commercially as propagating material in the production of ornamental plants or cut flowers.

Authorisation by the breeder shall not be required either for the utilisation of the new variety as an initial source of variation for the purpose of creating other new varieties or for the marketing of such varieties. Such authorisation shall be required, however, when the repeated use of the new variety is necessary for the commercial production of another variety. At the time of application for a Plant Breeders Rights, the breeder of the new variety must declare the name and source of all varieties used in the breeding of the new variety. Where a land race or farmer variety has been used, this must be specially mentioned.

In order to promote a more sustainable kind of agriculture and without any prejudice to the quality and reliability of the new variety, CoFaB enjoins breeders of new varieties to try to base the new variety on a broader rather than a narrower genetic base, in order to maintain greater genetic variability in the field. Further, a variety for which rights are claimed must have been entered in field trials for at least two cropping seasons and evaluated by an independent institutional arrangement. The breeder at the time of getting rights will have to provide the genealogy of the variety along with DNA finger printing and other molecular, morphological and physiological characteristics. The right conferred on the breeder of a new plant variety shall he granted for a limited period, depending on the variety.

In the event of a variety becoming susceptible to pest attack, the normal period of protection may be curtailed to prevent the spread of disease. In order to monitor this, periodic evaluations will be undertaken. The breeder or his successor shall forfeit his right when he is no longer in a position to provide the competent authority with reproductive or propagating material capable of producing the new variety with its morphological and physiological characteristics as defined when the right was granted. The breeder will also forfeit his right if the "Productivity Potential" as claimed in the application is no longer valid.

To give primacy to the goals of food security , it has been provided in CoFaB that the right of the breeder will be forfeited if he is not able to meet the demand of farmers, leading to scarcity of planting material, increased market price and monopolies. If the breeder fails to disclose information about the new variety or does not provide the competent authority with the reproductive or propagating material, his right will be declared null and void.