by David Hathaway | 25 Oct 1993

David Hathaway

Brazil is one of the key developing countries under intense pressure from Northern governments to strengthen intellectual property protection over life forms. Transnational corporations are pushing strongly for Brazil to adopt a new patent bill that would make it possible for them to enjoy monopoly protection and huge profits over crop seeds, livestock, and drugs developed through biotechnology. The Western-led push to patent life in Brazil has spurred off intense debate over the impact on all layers of society and catalyzed new coalitions among the scientific, religious, farmer, environmentalist and NGO communities. David Hathaway, of AS-PTA, an NGO working to strengthen farmer control over local biodiversity, reports on the proposed bill and its likely impact on Brazilian society.


A new patent bill sent to the Brazilian Congress in April 1991, as voted by the lower-house Chamber of Deputies, bows to transnational pressures for patenting of pharmaceuticals, food, life forms and biotechnologies. Impeached President Fernando Collor had pledged these modifications to US government representatives even before his inauguration in January of 1990.

Up to now, food, pharmaceuticals, seeds and livestock had been unpatentable in Brazil, a situation allowed by international agreements such as the Paris Convention, of which Brazil is a founding member. However in the past few years the country has been subjected to charges of "piracy" and trade retaliations from pharmaceutical transnationals and the US government in particular, under the "Super-301" provisions of the US Trade Act. Industrial property is also the object of negotiations in the Uruguay Round of the GATT, where the Brazilian government has expressed no opposition to Arthur Dunkel's 1991 proposed "Final Agreement" on TRIPS (Trade-Related Aspects of Intellectual Property Rights). If adopted, Third World countries would be obliged to offer IPR protection for life forms, either through patents or Plant Breeder's Rights. This proposed agreement would effectively supersede the Paris Convention and create an international patent enforcement authority under a new Multilateral Trade Organization (MTO), to be run by the GATT.

Brazil ' s patent bill in its current form was approved by the Chamber of Deputies on June 2, 1993, and is now in a Senate Committee awaiting discussions. It is likely that a final vote may take place by the end of the year. While there is some indication that senators may decide to take more time for a closer look at the complex bill, international pressures are heavy and the government hopes for a quick conclusion.

After much debate and wheeling-and-dealing, the Chamber of Deputies gave in on most of what the foreign biochemical industry is demanding (backed up by new US trade threats against Brazilian exports). The bill allows for patents on pharmaceutical products and processes, biotech processes and "microorganisms"; it extends patent validity from 15 to 20 years; it inverts the burden of proof for accusations of patent violations; it establishes retroactive rights (a "pipeline") over inventions already in the public domain; and it brings the law into full force within one year after it is signed. However, it stops short of US (and some Dunkel) demands in that the approved text requires local use of the patent (manufacture in Brazil) and allows for imports from legal licensees in other countries and for compulsory licensing in the cases of dependent patent requests or of "public interest".

The Senate Committee that now has to look at the bill, can expect to be under pressure from many of the same forces active in the Chamber of Deputies. The Government will probably push for approval of the bill as it now stands, while transnational biochemical companies, through their Interfarma lobbying organization, will call for advancing on their unsatisfied demands for more extensive rights and fewer restrictions or obligations. Organizations from civil society - including unions, professional organizations, the Church, scientific societies and NGOs - will continue their campaign centred on no patents for life forms and biotechnologies, but also with strong concerns around pharmaceuticals, "pipeline", and compulsory licensing provisions, patent validity terms and a longer transition period before the law comes into effect. Over a thousand of these organizations have affiliated -and dozens are active- in an umbrella grouping coordinating these lobbying efforts with headquarters in Sao Paulo, called the Forum for the Freedom of Use of Knowledge (Forum pela Liberdade do Uso do Conhecimento).

A look at the bill's provisions

The predominant opinion amongst the Deputies who voted to approve the current language of the bill, was that the bill excludes "living beings" in general - or at least plants and animals - from patentability. They were also convinced that the nation's biodiversity will be protected from foreign usurpation, since natural biological processes and products would also remain unpatentable (as non-inventions). The confusion surrounding this language, however, gives weight to the feeling of many members of Congress that application of a law in these terms may not be exactly what the majority had in mind. If the text is maintained by the Senate as it stands, enforcement will be a matter of interpretation.

For example, article 10 of the bill makes "natural living beings and biological material found in nature" unpatentable as such. However, the degree of manipulation required for genetic material to qualify as an "invention" is not defined - - and in practice may be minimal. For example, any "naturally occurring gene" transferred along with a promoter to some other organism could be classified as "novel," and therefore as an invention potentially subject to a patent.

Article 18 says that "living beings" are not patentable, with the exception of microorganisms used for a particular process that generates a specific product. The presumed limitation on the patenting of microorganisms is questionable and open to confusion. One exemplary hypothesis is that a microorganism could be patented along with its "novel" genetic components to be used "in the process of obtaining transgenic plants". Once the genes of the microogamism are transferred to a plant, all uses of the supposedly unpatentable plant could thus be subject to the rights of the bacteria's patent holder. Also, the microorganisms made patentable by Article 18, may include not only microorganisms in the classic biological sense (bacteria, viruses, some or all funguses or algae, etc.) but also genetic material, plant and animal cells, tissue cultures and even seeds, given the lack of any clear definition for a microorganism.

There are several more articles that give rise to confusion and will extend patenting of life in Brazil far beyond the intentions of the legislators. For example, according to explanations given by the bill's rapporteur in the chamber of deputies, the bill is intended to allow farmers to save patented seeds from their harvest, in order to plant them back. But a closer look at the text (article 43, clause vi) reveals that this might not be all that clear as it prohibits the "commercial multiplication or propagation" of the patented material. Is replanting your own seed "commercial propagation"??

Apart from the confusion and uncertainties, the bill is not in line with the Biodiversity Convention which Brazil agreed to sign. This legally binding Convention obliges States to recognize intellectual property rights in this area, as long as the parties to the Convention take measures by which the "developing countries, which provide genetic resources are provided access to and the transfer of technology which makes use of those resources ... ." The bill as approved by the Chamber of Deputies makes no provisions to this end. It is understandable that industrialized countries are in no hurry to write this commitment into their national law, but it is incomprehensible that a county like Brazil, a major provider of genetic resources, does not use the opportunity to incorporate the access questions into its national IPR law. The result may well be that the genetic resources in Brazil's "unpatentable" biodiversity will end up being prospected and developed exclusively and without limitations by those who hold patents on biotechnological processes: the corporations of the North.

The state of the debate

The Brazilian movements and organizations active in fighting the government's proposals for patents on life and biotechnologies have participated in a good number of public debates and informal discussions on the issues and technicalities involved, and early on arrived at the conclusion that any alternative proposal in this area would have to face up to several real-world considerations. Most of the country's scientific community does feel that there is inventiveness to be rewarded in the field of biotechnologies, but the problem is that there is a need to clearly define the scope and timeliness of patent coverage.

The current balance of power in international relations - as evidenced in the Dunkel "Final Agreement" proposal for the Uruguay Round - sways towards the likelihood of establishing new global IPR rules and authority within a year or two. Under the humble assumption that it may not be possible to immediately turn this tidal wave back, and considering that a new patent law will in fact be approved soon, amendments on this issue must be forwarded so that the current Brazilian Congress will be prepared to deal with the issues. The other danger of no early definition is that the current patent law, written in 1971, is mute on the issue and is now being used by the government - in bad faith - to establish precedents in granting patents on life.

An all-or-nothing approach, advocating a total ban on life and biotech patents, would most likely be frustrated as impractical or utopian, at least in the short run. Negotiating the technicalities with the politicians to establish "acceptable" or "consensual" limits, on the other hand, runs into the concrete problems of a lack of comprehension on the part of the members of Congress, none of whom have taken the time to delve into this particular aspect of contemporary IPRs and also of a lack of clarity anywhere in the world on what all this language really means or implies in practical terms.

There exists in Brazil, if not a consensus, at least an overwhelming majority opinion amongst NGOs, the Church, the breeders ' and scientific communities that plants and animals should not be patented, and that patents should not be used to alienate control over Brazil's biodiversity. The right-wing rural oligarchy's representatives in Congress have also come to understand that patented seeds, cattle, horses, etc., are also a threat to local seed companies run by big farmers and cooperatives, and to ranchers who are also animal breeders.

The problem is how to write this into a succinct, politically expedient article that everyone can understand and be sure of what it will mean in practice. In the process of negotiations leading up to the June vote in the Chamber of Deputies, a majority was formed around this intention, but the language approved - as discussed above - does not really live up to their hopes.

The proposal put forth by NGOs, and supported by the other social forces critically involved in this effort, is that the entire issue be left to a separate law, since the implications of patents on life and biotechnologies are too momentous to be left to a hurried process of political negotiations. Arguments in favour of this proposal are basically that the matter is too complex for either scientists or politicians to grapple with and resolve immediately, that the patent system itself is poorly adapted to protecting both the inventor's and society's interests in the case of biotechnologies, that there are other issues to be resolved in tandem with biotech IPRs (access to genetic resources, intellectual property rights of indigenous peoples, etc.), that the granting of biotech IPRs should still be held as a bargaining chip by Brazilian negotiators in the unfolding negotiations around implementation of the Biodiversity Convention and, finally, that the Dunkel draft of the TRIPS chapter would allow developing countries like Brazil a period of ten years to extend patent coverage to areas currently exempted from patentability. If the European Parliament took four years to come up with a law to protect biotechnological inventions - and is still discussing it - why can 't Brazil?

The hope behind this proposal is not only to gain time to educate scientists, politicians and society at large about what this all means, but also that internationally new proposals may appear and gain legitimacy, that a new plateau be achieved for informed discussion and negotiations. The problem is that this proposal effectively means writing a (temporary) ban on patents of all life forms and all biotechnologies into the bill, and that simply sounds to radical to most politicians, accustomed as they are to always accommodating into some kind of a middle-ground solution. However, to many, a ban on biotech IPRs today is itself already a middle-ground solution, as it allows for writing a better law in the future. To convince a majority of Senators that this solution is in Brazil's best interest is the challenge now facing the small group of activists, supported by a myriad of social movements and organizations, currently engaged in this intense but important lobbying effort.

For further information contact: AS/PTA Rua da Candelaria, 9 - 6o andar, 20091-020, Rio de Janeiro, Brazil. Tel: (55-21) 253-8317; Fax: (55-21) 233-8363. Email: [email protected].

Author: David Hathaway