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Patenting Lives Conference
Agriculture Panel
GMO Patents: Rights and Responsibilities in Property and Tort
Jeremy de Beer
This paper looks at the rights and responsibilities of owners of patents for genetically modified organisms, through the lens of traditional property and tort doctrines. An analysis of two very recent Canadian cases demonstrates inconsistencies in respect of patentees' legal position. In Monsanto v. Schmeiser , Monsanto argued successfully that ownership of a patent for a molecularly engineered plant gene entitled it to full control over stray plants and progeny containing the gene, even though a plant itself is not patentable subject matter under Canadian law. In Hoffman v. Monsanto , however, a group of organic farmers argued unsuccessfully that patent ownership also entails responsibility for the contamination of organic crops by straying genetically modified organisms. In short, the patent entitled Monsanto to all of the rights of ownership under traditional property rules, but none of the responsibilities of ownership under traditional tort rules.
By considering the application of longstanding property and tort concepts to such contemporary patent issues, one can evaluate the conceptual and doctrinal integrity of the law in this area. After considering various justifications for the legal inconsistencies in Canadian jurisprudence, the paper concludes that there is no acceptable explanation and suggests ways to make the property and tort rules governing owners of ag-biotech patents more coherent.
Analysis of Farmers' Willingness to Pay for Agrobiodiversity Conservation in Nepal
Diwakar Poudel (co-author Fred Johnson)
This paper assesses farmers' willingness to pay (WTP) and analyses the main factors influencing the WTP for conservation of rice landraces in Kaski Nepal . The study employs the contingent valuation method (CVM) using questionnaire surveys in 107 randomly selected households. The WTP was assessed for three methods of conservation, three types of grain quality rice landraces, and for abundant and rare landraces. The study shows that 93 percent of farmers are willing to pay for rice landraces conservation and that the conservation methods have a greater influence on WTP. People are willing to pay significantly higher amounts for the conservation in community gene banks, than in household level (in situ) or ex situ (government gene bank). Significantly higher contribution was in favour of fine and medium grain quality landraces than coarse grain. However, several socio-economic factors such as landholding size, household size, education level, resource endowment status, sex of respondent, number of crop landraces grown, and knowledge on diversity influenced these WTP. The study indicates that farmers value crop genetic resources (such as rice landraces) for use, non-use, and existence options and there is considerable support for conservation. Farmers consider community gene banks as the best alternative method because the genetic resources are not only conserved but also utilized, and the community members have access and control over the community gene bank. This study contributes in designing the conservation strategies for agrobiodiversity. This study also suggests that the conservation strategy should be different for different genetic resources based on use values and threats to extinction.
Implementing Article 27.3(b): What Have We Learned From The Economists?
Dwijen Rangnekar
Among the many different provisions in the TRIPs Agreement, Article 27.3b occupies a particularly remarkable position. To begin with, unlike other areas of technology, Article 27.3b acknowledges and permits a multiplicity of instruments of intellectual property rights (e.g. patents and sui generis system) to deal with the same subject matter (plant varieties). It is also the case that the relevant international agreement in this area, the International Convention for the Protection of New Varieties of Plants (UPOV), is not mentioned. Probably most notable is that Article 27.3b has its own built-in agenda: "the provisions of this subparagraph shall be reviewed four years after the date of the entry into force of the WTO Agreement". This review, to have taken place in 1999, was seen by some commentators as an opportunity to eliminate the sui generis option; thus, obligating all WTO members to protect plant varieties via patents. While this did not occur, the implementation of this obligation by WTO member countries from the global south has been slow and delay - greatly challenged by the task at hand. In this regard, policy makers must take account of the rich and growing literature on 'how best to implement Article 27.3(b)', wherein differing legal interpretations have been advanced and a catalogue of TRIPS-compliant exceptions and models presented. The paper proposes to engage with this (policy-based) literature. In particular, it seeks to bring economic analyses of plant variety protection to bear on TRIPs-implementation with reference to Article 27.3b. Economic analyses of plant variety protection have largely focused on developed countries - with the exception of a substantial study focusing on select Latin American countries. However, there is a useful literature on the growth, dynamics and impact of privatisation in the seed industry in the global south. Critically reviewing this literature, the paper seeks to identify important insights and stylised facts that can guide and inform policy formulations with respect to implementing the obligation in Article 27.3b.
[The paper is based on research that is currently being conducted in the context of an EU-funded Sixth Framework Research Project, Impacts of the IPR rules on sustainable development (IPDEV).]
The Patenting of Life and the Legal Response in India
Sangeeta Udgaonkar
The movement towards globalization has resulted in the increasing harmonization of international trade regulations under the auspices of the World Trade Organization. In 1994, the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) extended this harmonization to the sphere of intellectual property. The main objective of TRIPS is to delineate international minimum standards of intellectual property protection. While this is a factor in facilitating international trade, the implementation of this Agreement has led to considerable debate, particularly in developing countries, involving as it does the alignment of local (country-specific) laws with the standards of protection prescribed therein. The debate in the developing nations has largely centred on the TRIPS provisions relating to patents, particularly on Article 27 thereof.
India has had to amend its intellectual property laws in order to comply with the TRIPS requirements. Most of these amendments have not been very controversial. The amendments to the patent law, however, have been so widely and hotly debated, and have thrown up so many controversial issues, that in the public mind in India today "intellectual property" has become synonymous with "patents". Two amendments, both promulgated in response to Article 27 of TRIPS, have been the focus of the patent debate in India . One involved the bringing of medicines, drugs and chemicals within the purview of product patents; the other and more widely debated was the extension of patent law to life forms.
The commitment to grant patents on life has had an unforeseen impact on aspects of Indian society and economy previously untouched by changes in intellectual property legislation. The debate has not been restricted to traditional patent or other intellectual property rights issues but has extended into areas of environmental, traditional knowledge, bio-piracy and farmers' rights issues as well. India has taken the further step of enacting its stand on these issues into law, with substantial public participation in the legislative process. The provisions of both the Biological Diversity Act, 2002 and the Protection of Plant Varieties and Farmers' Rights Act, 2001 reflect the public perception that the enactment of positive safeguards has now become necessary to protect the rights of the people. These Acts contain unique provisions, enacted in direct response to the change in patent law. For example, the Biological Diversity Act, 2002 has specific reference to intellectual property rights on biological resources. The Protection of Plant Varieties and Farmers' Rights Act, 2001 contains provisions pertaining to varieties in the public domain and also guarantees certain rights to the farmer and to the community. Even the Patents Act, 1970 has been amended to include provisions referring to such factors as traditional knowledge and the environment.
It is apparent from an analysis of the provisions of these laws and of the Rules enacted thereunder that in India, not only has permitting patents on life forms had a direct and substantial impact on many other previously unrelated areas, but unique legislations have been developed to address these issues. Other countries, primarily developing countries, are facing a similar situation, as indicated by the Doha Ministerial Declaration. India's legislation could perhaps provide a model for such countries.
