TCS Daily

Biopirates of the Caribbean

By Roger Bate - September 12, 2003 12:00 AM

CANCUN, Mexico -- 'Indian wheat must not be patentable,' said arch-protectionist and guru to the political left, Vandana Shiva, of the Indian Research Foundation for Science, Technology and Ecology. In fact she said that no living organisms should be patentable - including, presumably, herself. Well you won't have any arguments from me that we shouldn't patent or indeed clone, Dr Shiva. But her rhetorical style of decrying the world's corporations for biopiracy certainly appeals to the few acolytes and members of the media, who hang on her every word. And they were there in attendance, if not in force, when she kicked off the TRIPS and Biopiracy NGO meeting at the Hotel Sierra's NGO center.


The Trade Related Aspects of Intellectual Property Rights (TRIPS) has been newsworthy in the past week mainly for the deal on access to essential patented drugs, but there are several other parts of the TRIPS debate, notably the role of IP as it affects biodiversity.


But what of biopiracy? The Mexican Navy's presence here has removed all possible forms of traditional piracy, but Greenpeace defines biopiracy as when 'genetic or biological resources are patented and used without the consent of their country of origin or the local communities and indigenous people who have until then cultivated and used them'. And given that we are in Mexico where maize has been used for 5,000 years, they are focussing much of their concerns on the 'theft of maize by multinationals', and in particular DuPont's European patent EP 744888, which covers certain types of maze plants.


As can be expected, the green NGOs oppose all manner of patenting of living organisms, even though organisms have been altered by man for centuries. For example, Louis Pasteur modified a version of yeast in the 1870s. As is also expected, the NGOs provided scant support for their claims. They are dismayed that in 1980 a US court ruled that micro-organisms could be patented, as long as they were an invention and novel (a demand for all patents). Legislation in European countries and the United States has reinforced this decision internationally.


Greenpeace, Dr Shiva and numerous other NGOs, although notably not farmers from developing countries, oppose the 'filching of genetic material from the developing world'. They accuse DuPont, Monsanto, Bayer and Syngenta of being the largest culprits of biopiracy and give examples of successful patenting by these companies of genetically altered (and other alterations from plant breeding techniques) wheat, canola and other products. The NGOs claim that the companies 'systematically analyse crop plant genomes, and patent applications made accordingly cover several hundred genetic sequences of commercial interest. The patents are intended to control seeds, agricultural cultivation and the use made of harvests'.


It is true that these companies have made over 750 patent applications in Europe with nearly 100 granted, but the reality is that the patenting allows the possibility that these companies can recoup the costs of their research by turning them into products. It is of no surprise to policy experts and economists that companies are tempted to go beyond what is considered fair. Adam Smith recognised that it was not the benevolence of firms that kept them honest and the consumer well treated, but strict contract and trade rules, competition and an independent judiciary. It is this process that establishes what is fair and firms' lawyers (like children at home) learn how far they can push the rules.


Some of the patents sought have, correctly, been denied. For example, patenting a type of GM maize containing a specific elevated amount of oil is acceptable, whereas getting a blanket patent on all elevated oil levels should not be. The latter patent, if it existed, would be too broad and would harm other innovations by competitors. Indeed broad patents on oil content have been denied to several companies. But that doesn't mean these corporations are evil or malicious, they were just learning the boundaries of the system.


The knee-jerk reaction from the activists is expected. Whether it is the protection of native wheat varieties in India, or claims against multinational companies making money from their development of a drug made from a plant found in a Costa Rican jungle, the theme is the same -- we hate corporations and the patents that keep them in business. Like all patents, they do provide a temporary monopoly, but that is a small price to pay for sustainable research and development.


Article 27 of the TRIPS agreement encourages countries to patent micro-organisms. It's there to help innovation and it will do so, unless the NGOs have their way, fortunately they appear to be losing this particular battle.


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