1991 will be the year of major decision-making in the world's two lead international bodies governing intellectual property rights (IPRs): the Union for the Protection of New Varieties of Plants (UPOV) and the World Intellectual Property Organisation (WIPO). UPOV is scheduled to revise its convention laying out the rules for the plant breeders ' rights (PBR) system in March, while WIPO hopes to adopt an International Patent Harmonisation Treaty in June. Both initiatives could result in stronger laws for IPR protection over plants worldwide, in the shadow of the GATT Uruguay Round's current difficulties.
The plant breeders ' rights system will celebrate its 30th anniversary with an extravagant gift for itself: a shimmering new treaty. Created in 1961 by a handful of European countries, the UPOV Convention lays down the rules for the granting of plant breeders ' rights for new varieties in its member states. To be eligible for protection, varieties must be novel, distinct and uniform. As an alternative to the rigid but powerful patent system, PBR provides breeders with limited monopoly rights over the production, marketing and sale of their varieties, currently for 15 years. It has two special limitations, however. To maintain the availability of genetic resources for crop improvement, the current UPOV system allows breeders to freely use each others protected varieties for further breeding. It also permits farmers to re-use seed from their harvests. To guarantee its good functioning as the specialised regime tailored to the needs of breeders and farmers, PBR was reserved as the only form of legal protection available for designated species in the member states. Patenting PBR crops was out of the question (except in the United States).
The so-called strengths of the system have turned into its own weaknesses - at least in the eyes of some of its beholders. Breeders were complaining that the criteria for PBR protection were being abused under the regime of free access to germplasm. Many seed companies were making slight modifications of high-performing crop types and getting new titles of protection over them. This was denounced as unfair "cosmetic breeding". At the same time, companies have lost their patience with farmers renewing their seed stock on the farm as an alternative to the market. Perhaps most important, though, is that PBR has increasingly become threatened by its own legal counterpart, the patent system. Larger companies engaged in crop biotechnology want to have full-fledged patent protection available for plants and genes, which would not only encroach on PBR territory but could jeopardise the existence of the "softer" system altogether. In the midst of its woes, membership of the Union has hardly advanced and currently stands at 19 industrialised countries.
Born Again Plant Breeders?
Under pressure to salvage something of the system, the UPOV member states decided in 1988 to roll up their sleeves and beef up the game. The result is a "basic proposal" for a whole new UPOV Convention to be debated and adopted during a Diplomatic Conference in March. The proposal aims to strengthen and extend the rights of plant breeders by dressing up PBR in patent law clothing:
• The new UPOV rules will govern the entire plant kingdom, not just selected species. Likewise, the term of protection will be lengthened from 15 to 20 years for crops.
• The draftsmen want to get rid of the farmer's privilege altogether at the international level and leave it up to the member states to decide on. Unless individual governments decide otherwise, replanting a seed could land you in court.
• They also want to introduce a system of genetic dependency between varieties that are found to be "essentially derived" from each other. The breeder of the source variety will then see his rights extended to all close cousins of his, although who knows what "close" will mean. This will place an ante on the breeders ' exemption and effectively restrict the principle of free access.
• Depending on the outcome of negotiations, PBR protection could also be extended from the seed to the harvested crop, and even international trade in products grown from PBR varieties. Thus, flowers or grain grown from protected seeds in countries outside the UPOV club (mostly developing countries) could be blocked from entering UPOV members ' markets.
So much for strengthening plant breeders ' rights... As a last minute abdication before the throne of the patent lobby lords, UPOV seems willing now to drop the ban on double protection that currently prevents the patenting of PBR eligible plant varieties. Despite the long standing fears of independent seed companies that they could not carry on in a world of exclusive property rights over genes, plants and crop characteristics, UPOV sees no other way out. But this way out could be the final goodbye. If the ban is removed, patents and breeders ' rights will accumulate and compete within the very same plants. And it is not hard to guess which type of right will override the other. The patent system undermines free availability of genetic resources and would not allow breeders to use each others materials freely for further improvement.
Thirty year birthdays can give anybody the blues, but UPOV is celebrating its own with an unusually morbid spirit. If the member states go ahead and drop the exclusivity of PBR as the sole means of protecting plant varieties, UPOV's 30th candle could be its last.
While WIPO harmonises what GATT garbled
In the same building where UPOV is building its deathbed, the WIPO people have been putting together an ambitious plan to raise patent law to mighty heights by smoothing out the differences between national systems. WIPO is a UN body that promotes intellectual property schemes such as the founding 1883 Paris Union for the protection of industrial property. While the Paris Convention lays down common principles for administering patent laws, these laws differ widely among its 100 member countries, due to national economic and social interests. For example, developing countries tend to limit the life span of their patents to shorter periods than their industrialised counterparts, and exclude certain fields of technology from patentability (agriculture, food, health).
For years, the North - led by the United States - has been trying to get the South to accept a strengthened and unified system of patent rules at the global level. They first tried this through WIPO itself, but this backfired. The developing countries, more interested in technology transfer and the obligations of patent holders, are the majority at WIPO and have used this UN forum to adapt intellectual property laws to their own socio-economic needs.
This brought the United States to force the issue onto the Uruguay Round agenda of GATT negotiations. Backed by Japan and the EEC, the Americans wanted to set forward harmonised principles of intellectual property protection under the GATT umbrella and use the trade policy forum for sanctions against developing countries that do not comply. No agreement on patents in GATT has materialised so far. The negotiations were suspended in December under the fiasco of agricultural disputes, only to be taken up again at the outbreak of the Gulf war...
In the interim, the ball has fallen back into WIPO's field. The UN body has been working on a new treaty for the harmonisation of patent law for years - with much difficulty indeed. North and South diverge on several basic points including what should be patentable and for how long. But unlike the bully dynamics of GATT, the developing countries play an active role within WIPO and can better defend their interests there.
Harmonisation in The Hague?
Despite these difficulties, a 2-kilo draft treaty is ready for negotiation and adoption at a diplomatic conference in June. The month-long meeting will be hosted by the Dutch government in The Hague and, if successful, could result in a set of harmonised standards of patent protection. This, then, would serve as a pre-packaged platform for any eventual GATT agreement on the matter. However, the road to The Hague is paved with many rough pebbles.
Several stumbling blocks will shape the fate of the treaty. The proposed text states that patent protection will be available for all fields of technology for a minimum period of 20 years from date of filing. Many countries, including most of Europe, currently exclude certain subject matter related to food, health, nuclear energy or chemicals from patent protection. Whoever signs the treaty will simply have to drop these exclusions. The same is true for lengthening the patent term. Eighteen to 20 years is the standard in the North, but is a far cry from reality in the South where monopoly rights are often limited to periods of five, seven or up fifteen years.
Another point that the North wants the South to accept through this treaty is that all countries provide for the automatic extension of patent rights on processes to their products. This is standard in industrialised countries, even if the product itself cannot meet patent criteria! To strengthen the power of the patent holder even further, the North proposes that all countries reverse the burden of proof of infringement in this case. Thus, if someone holds a patent on a process that - by the blessing of the State - covers the product as well, anyone else caught making the product by whatever means has to prove that he or she did not use the patented process. In other words, you are guilty until proven innocent. In most developing countries, this obligation lies with the patent holder, not society.
Harmonisation, in this sense, clearly breaches the position of most countries that see their patent laws as sovereign systems. Knowing that, WIPO offers a shady deal to get the South to give in. Developing countries with "weak" patent laws would be given a 15 year grace period to bring their legislation into shape - but only if they join before the year 2000. After that, the doors are closed to any reservations on the part of countries that want to sign. The grace period may seem attractive to developing countries, but signature between next June and the end of 1999 is a firm commitment to a "no exclusions, no exceptions" world system.
If that were not enough, only members of the Paris Convention will be allowed to sign the Harmonisation Treaty. The trick with this condition is to get Third World outsiders such as Thailand, India, Pakistan and several Latin American states to join the Paris Union and give harmonisation fuller meaning.
If the treaty is successfully adopted in June, the world will have one set of tough and unlimited patent laws by 2015, modeled on the industrialised countries ' system. This is exactly what the US wants to achieve in GATT, with the added possibility there of trade sanctions against detractors. But the "One World" patent system is of little interest to most developing countries with little bargaining power against the major corporations of the North. Given the more democratic procedure of a UN conference, the South would well advised to take heed during the June manoeuvre and refrain from signing any treaty that strengthens the rights of patent holders even more without talking about their obligations.
"Basic Proposal of a New Act of the International Convention for the Protection of New Varieties of Plants", UPOV document DC/91/3 dated 9 November 1990.
"Draft Treaty for the Harmonisation of Patent Laws", WIPO documents HL/CE/VIII/2-4, dated February 1990.
"World Intellectual Property Organisation", in Biotechnology and Development Monitor, University of Amsterdam, Nº 4, September 1990.
UPOV Sells Out", in Disclosures, GRAIN, Nº 2, December 1990.