Nicanor Perlas and Rene Salazar
The government of the Philippines is about to pass a new law making it possible to patent life forms. The Bill, which would allow for exclusive monopoly rights on asexually reproduced plants, is being pushed through without any public discussion whatsoever. On less than three sheets of paper, this amazing proposal sets no limits on the monopoly granted and penalises farmers who replant patented seeds with one to five years of prison. Nicanor Perlas and Rene Salazar, from CADI and SEARICE, two Filipino NGOs, spell out the concerns for their people.
In early May, a Bill was put forward to the Congress of the Philippines calling for the adoption of an "an act granting any person who invents or discovers and asexually reproduces any distinct and new variety of plant the right to obtain a patent." The patent -- defined as "the special privilege to exploit, produce and benefit from such a discovery and reproduction subject to the conditions and requirement of this Act" -- can be obtained for any plant, cultivated or wild. The only conditions that have to be met are a description of the plant and mention of how it was asexually reproduced. While in nature, only certain species will reproduce asexually, the simplest techniques of biotechnology like tissue culture make it possible to reproduce many sexually propagated crops by vegetative multiplication.
This is the very first time that the Philippine House of Representatives and the Senate have had to consider life patenting legislation, yet they have devoted almost no time to a discussion of its implications and they have not sought the ethical advice of our religious community nor the practical advice of our farm community not the economic advice of the larger industrial community.
The Bill about to become law has sweeping provisions that go far beyond those of any other country in the world and would place the Philippines far outside the mainstream of international intellectual property conventions.
If this Bill is passed, Congress will have no intellectual or legal basis for denying patents on animals, or even human genetic characteristics, as has already happened in other countries. In general, the Bill reads like a sloppy misinterpretation of the moribund US Plant Patent Act of 60 years ago, with all its faults and none of its subtlety.
This may be the only intellectual property Bill in the world that treats patent disputes as criminal violations rather than civil suits. The implication is that the legal cost of incredibly expensive patent litigation must be borne by the entire Philippine society and those who are charged. This allows foreign transnational corporations to lay costly criminal charges for patent law suits against poorer national enterprises or individuals at no cost to themselves. As a result, Filipinos will subsidise the companies from the North.
In allowing -- uniquely in the world -- for the patenting of "discoveries" in farmers ' fields, the Bill legalises plant piracy and then -- also uniquely -- allows pirates to lay criminal charges against the farmer is she/he continues to use her/his own breeding material.
At a time when the United Nations agencies, such the UN Food and Agriculture Organisation (FAO) and the UN Educational, Scientific and Cultural Organisation (UNESCO), and most Third World countries are struggling to develop "intellectual integrity protection for farmers and herbalists (Farmers ' Rights and Folklore Conventions)", the Philippine Bill proposes to systematise and validate the rights of foreigners to steal the genius of the poor.
Since it is scientifically impossible to distinguish between, for example, a mutation occurring in a cultivated environment and a mutation occurring in the forest, the "discovery" provision amounts to a "slash and burn" intellectual property law laying open the entire treasure trove of our biological diversity to corporate expropriation.
The Bill does not merely give individuals an opportunity to obtain royalties or provide a means of compensating for research investments -- provisions which could easily be met through well-organised inventors ' certificates or articles affirming automatic licensing -- the Bill gives patent holders exclusive monopoly control over their patents. This means that they can set the conditions for sale, arbitrarily denying some applicants access to a product while granting access to others under usurious or varying conditions. Amazingly, as well, there is not the standard provision for awarding compulsory licenses if the patent is not worked, the product is not made available in adequate quantity, or in the interest of national security.
The Bill does not offer the customary research exemption to other scientists allowing them to use the patented product as the basis for further innovative research and it denies the ten thousand year tradition of farmers being allowed to save their own propagating material for use in replanting. If this Bill is passed, farmers become mere renters of germplasm to patent monopolies.
Because this Bill regulates life, then it is important for the administrative process to be very transparent to every member of the community whose very existence depends on life processes. Once a Bill has been passed into law, the rules and regulations that administrators develop will be done outside the purview of the public.
Pure selection process of what is taken from farmers ' fields are many times released as improved varieties. So the Bill does not promote creativeness but craftiness. There is already a historical precedent for this concern: the US Plant Patent Act passed in 1930. Twenty years later, it was found that most of the patents were for accidental discoveries.
While we recognise that government breeders are underpaid, their additional reward should not come in the form of "double taxation" for the farmers. First, farmers are paying taxes (direct and indirect) to support government-funded breeding researchers. Then farmers have to pay "taxes" in the form of royalties they will now have to pay private corporations who have undertaken licensing arrangements with government breeders who have taken their "new" varieties from farmers ' fields in the first place.
For more information on the discussion in the Philippines, please contact Rene Salazar, SEARICE, P.O. Box EA-31, Ermita, Manila, The Philippines.