Patents on life patently undermine food security
Thousands gathered in London to demand trade justice for the developing world in a mass lobby of Parliament. They want trade rules that work for all, not just a few.
Lim Li Ching
argues why patents on life forms and living processes, as afforded under current trade rules, undermine food security.
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On 19 June 2002, twelve thousand people descended on Parliament to lobby their MPs, calling for a change in unfair trade rules. The mass lobby was organised by the Trade Justice Movement, an alliance of 43 UK NGOs, and the number is growing.
People came from all over the UK, as far as Northern Ireland and Scotland. They also came from Malaysia, Uganda, Barbados, India, Mali, Ghana and South Africa, all united in their demand for trade rules that work fairly for everyone.
Three hundred politicians met their constituents, including Deputy Prime Minister John Prescott and opposition leader Iain Duncan Smith. Inside Westminster, the first question raised during Prime Minister’s Questions was concerning the mass lobby. And at the rally held prior to the
lobby, it was announced that Tony Blair had met with organisers in the morning, and that the South African President Thabo Mbeki had called to express support.
TRIPS and patents
One of the major inequities imposed by the rich countries on the poor is the patents regime, currently fought over in the World Trade Organisation (WTO). The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) forces WTO members to protect intellectual property rights
(IPRs) through national legislation. But this effectively imposes developed country standards of IPRs on developing countries, irrespective of whether it is counter to their cultural values and their economic, technological, scientific and social development levels.
The strict IPRs regimes have overwhelmingly benefited developed countries and transnational corporations. For example, developed countries hold 97% of all patents (a type of IPRs) worldwide. Patents are valid for 20 years, allowing the patent holder to block competition and set the market
price. In contrast, the concept of IPRs is alien to many developing countries. Thus, TRIPS is a tool for developed countries to reap disproportionate, and often inappropriate, benefits. Vandana Shiva has characterised this as "monopolisation by the rich, while the poor pay".
Before TRIPS, most countries had excluded the patenting of life forms, biological resources and knowledge on their use. However, this changed with the advent of TRIPS in 1994.
Article 27.3(b) of TRIPS effectively mandates WTO members to allow patenting of micro-organisms as well as non-biological and microbiological processes. Plants and animals, and essentially biological processes for the production of plants and animals may be excluded from patentability, but
the choice of exclusion is left to each country.
An artificial distinction is thus made between plants and animals, and micro-organisms, for which there is no scientific basis. Furthermore, this ambiguity has allowed worldwide patenting of genes and micro-organisms, as well as genetically engineered organisms, including modified
plants and animals.
This is an abominable perversion of patent law, because it confers monopoly rights over life forms and life itself for commercial exploitation. Patents may be appropriate for protecting genuine inventions, but are inappropriate applied to life forms, living processes, genes and traits, which
are all discoveries at best.
Granting patents on life encourages biopiracy, the theft of genetic resources and traditional knowledge belonging to local communities.
Genetic resources and knowledge of their use are mainly located in developing countries. Yet, patents are overwhelmingly granted to companies based on knowledge accumulated over thousands of years and for resources stolen from farmers’ markets and rainforests. Patents have been filed on
genes or natural compounds from plants traditionally grown in developing countries, including genes in staple food crops originating from developing countries but now grown globally. Most of the patents did not involve prior informed consent i.e. communities were not notified of collector’s
intentions, and there was no benefit sharing from commercial exploitation.
These patents frequently end up being owned by corporations. This seriously erodes the rights of farmers, indigenous peoples and local communities, depriving communities access to resources they have nurtured and conserved over generations. Since most patents are registered in developed
countries, benefits shift from South to North as IPRs are applied to biological resources. Worse yet, the patented product may be sold at relatively high prices to developing countries, including those countries from which the product originated.
TRIPS has opened the floodgates to corporate patenting on life. In November 2000, according to research commissioned by The Guardian, patents were pending or granted on more than 500,000 genes and partial gene sequences in living organisms.
TRIPS has also facilitated patenting over plant varieties (varieties of plants developed by humans through traditional and non-traditional breeding), as Article 27.3(b) stipulates that plant varieties should be protected, either by patents, a sui generis (unique) system or a
combination of both.
By 2001, just six corporations – Aventis, Dow, Du Pont, Mitsui, Monsanto and Syngenta – controlled 98% of the global market for patented GM crops, 70% of the global pesticide market and 30% of the global seed market. The same six corporations owned 60.8% of patents granted on rice,
70.8% of patents granted on wheat, 71% of patents granted on maize, 76% of patents granted on soybean and 46.7% of patents granted on sorghum. These are all staples that supply most of the calories for the poor.
Many varieties of the world’s staple food crops were developed by farmers in developing countries. However, TRIPS and patents on life are facilitating the corporate ‘take-over’ of agriculture, both in the North and South. The impacts are however far worse in the South,
where the majority of the people are farmers.
An estimated 1.4 billion women and men rely on farm-saved seeds for their livelihoods. Farming communities of many countries have a tradition of free exchange of seeds and genetic materials to guarantee food security.
Patents on seeds will reduce farmers’ access to seed and genetic resources. Seeds would become more expensive, due to royalty fees charged by the patent owner. Once a patented variety of seed is planted, farmers could be forced by companies to purchase new seeds every year, and
penalised if they save seeds. Patented seeds are also often sold as a package with fertiliser, pesticides and herbicides, further increasing dependence on corporations.
Patents on food crops and seeds also reduce agricultural biodiversity, as companies control the market with a few patented varieties. This narrows farmers’ options, displacing diverse traditional varieties, and undermines the farmers’ ability to reduce the risk of crop failure.
Traditionally, farmers select a range of crops best suited to different environmental conditions, and that have varying tolerances to pests and diseases, thus spreading the risks of crop failure.
Genetic engineering has greatly increased the opportunities for patenting of living organisms. Some scientists argue that patents on transgenic processes should not be allowed, as the transgenic process hardly qualifies as a technology, much less an invention. It is unreliable,
uncontrollable, unpredictable and also inherently hazardous.
An important class of transgenic process patents are on Genetic Use Restriction Technologies (GURTS), the most infamous of which is ‘Terminator Technology’. Terminator Technology genetically engineers seed to grow plants that then produce sterile seed. This makes it impossible to
save seeds, forcing farmers to buy new seeds each year.
Some GURTS engineer seeds to be dependent on the application of a proprietary chemical for germination, or for expression of a desired transgenic trait, the chemicals being sold by the same companies, thereby locking farmers into further corporate dependence.
Following widespread protests by civil society, corporations such as Monsanto and AstraZeneca (now Syngenta) claimed they would not commercialise such technologies. However, companies have persisted in researching and applying for patents on GURTS. Syngenta was granted a GURTS patent on 8
May 2001, under the pretext of biosafety, to stop transgene escape.
Companies are also racing to map the genomes of the world’s staple food crops, and to patent their genes. Rough drafts of the rice genome were published in the 5 April 2002 issue of Science by the Beijing Genomics Institute on the subspecies indica, and by Syngenta on the
japonica subspecies.
Syngenta refused to deposit its rice sequence data in the public database GenBank, defying normal practice. Science published the Syngenta draft without full disclosure of the sequence, in a deal that denies public access to the rice genome data. While Syngenta made available the
sequence on its website and a CD-ROM, allowing researchers to use raw data, it limited how much data could be published at one time. Recently, it has agreed to a fuller release of the data. Nonetheless, intensification of the trend of private monopolisation of knowledge and genetic resources would
make it more difficult for researchers to make use of genetic material for research that benefits the poor.
The Africa Group in the WTO, in particular, has recognised the serious implications TRIPS would have on the rights of local communities to self-determination and food security. It had proposed in 1999 that the mandated review of Article 27.3(b) at the WTO should make clear that plants,
animals and micro-organisms and their parts (i.e. genes, gene sequences, genomes, cells, proteins, seeds, etc.) and all living processes, cannot be patented. This position is gaining increasing support among countries in the Third World.
The Africa Group also recommended that the review consider the obligation to protect plant varieties. It proposed that developing countries be allowed to institute a sui generis law that protects the knowledge and innovations of indigenous and local farming communities, and safeguards
traditional farming practices including the right to save, exchange and use seeds. | 
