To Sow or Not to Sow – Dilemmas at the Intersection of IP with Trade Srividhya Ragavan University of Oklahoma Law Center

Objective The international regime for protection of plant varieties when examined in the light of the failed agricultural subsidies negotiations threatens food security in developing nations.

What is the international regime for protecting plants Article 27.3 TRIPS Article 27.3 TRIPS …members shall provide for the protection of plant varieties either by patents or an effective sui generis system or by any combination thereof …members shall provide for the protection of plant varieties either by patents or an effective sui generis system or by any combination thereof –What is a sui generis system? –Systems engineered to the unique, regional needs of a particular country or nation Disagreement on whether the reference to an effective sui generis system is a reference to UPOV Disagreement on whether the reference to an effective sui generis system is a reference to UPOV

Issues with the international regime T he international regime for protection of plant varieties : –Over protects hybrid varieties Danger: Loss of genetic materials Danger: Loss of genetic materials

Over protects Hybrids United States as an example: United States as an example: Plant patent (Sexually reproduced plants) Plant patent (Sexually reproduced plants) Plant Variety Protection Act (Asexually reproduced plants) Plant Variety Protection Act (Asexually reproduced plants) Utility Patents Utility Patents Judicial level: Judicial level: –Diamond v. Chakrabarthy –JEM Agro

UPOV as an example of the international regime History as a tool of the breeder History as a tool of the breeder –Nothing wrong with that, except that its effectiveness is limited in countries, like India, that may want to protect farmers.

Effectiveness of UPOV limited because Diluted Eligibility Requirements Diluted Eligibility Requirements Exaggerated rights for breeders Exaggerated rights for breeders Limited public interest exceptions Limited public interest exceptions

Diluted Eligibility Requirements Diluted Eligibility Requirements Protection under UPOV for Protection under UPOV for –new (Novelty) –useful (Utility) –stable (Stability) –distinct varieties (nonobviousness)

Commercial Novelty Commercial Novelty The variety shall be deemed to be new if, at the date of filing of the application for a breeder's right, propagating or harvested material of the variety has not been sold or otherwise disposed of to others, by or with the consent of the breeder, for purposes of exploitation of the variety The variety shall be deemed to be new if, at the date of filing of the application for a breeder's right, propagating or harvested material of the variety has not been sold or otherwise disposed of to others, by or with the consent of the breeder, for purposes of exploitation of the variety ONLY Sale or disposal of the application material defeats novelty Cultivation, reference collection, publication etc., will not defeat novelty Breeder can potentially claim protection over genetic varieties that have been cultivated for centuries but never sold or disposed.

Distinctiveness Distinctiveness Article 7 of UPOV: The variety shall be deemed to be distinct if it is clearly distinguishable from any other variety whose existence is a matter of common knowledge at the time of filing the application. The variety shall be deemed to be distinct if it is clearly distinguishable from any other variety whose existence is a matter of common knowledge at the time of filing the application. Application materials that are a matter of common knowledge can pass the test of distinctiveness if it can be distinguished from another material that is a matter of common knowledge.

Art 14: Art 14: A variety is a matter of common knowledge A variety is a matter of common knowledge – if it has been subject of an application for the granting of a breeder's right or –has been entered in the official register of varieties, in any country

Distinctiveness standard - ability to distinguish from another variety entered in the official register or, for which an application has been made. Distinctiveness standard - ability to distinguish from another variety entered in the official register or, for which an application has been made. Thus, varieties already cultivated, being cultivated, well known, and indistinguishable from well known varieties will pass the novelty threshold if it has not been sold and the distinctiveness threshold so long as close cousins of the variety have not been subject to an application for breeders rights. Thus, varieties already cultivated, being cultivated, well known, and indistinguishable from well known varieties will pass the novelty threshold if it has not been sold and the distinctiveness threshold so long as close cousins of the variety have not been subject to an application for breeders rights. –The broad definition increases the scope for appropriation from the public domain – CBD Art. 1 + Art. 15= mandatory to share genetic resources –Under UPOV they may become eligible for protection

After embodying diluted Eligibility requirements, UPOV compounds the problems by: After embodying diluted Eligibility requirements, UPOV compounds the problems by: Exaggerated Scope of breeders rights Exaggerated Scope of breeders rights Limited public interest exceptions Limited public interest exceptions

Exaggerated Scope of protection Breeders right covers protected variety and varieties not clearly distinguishable from protected variety (art. 14 (5)(a)) andessentially derived variety Breeders right covers protected variety and varieties not clearly distinguishable from protected variety (art. 14 (5)(a)) andessentially derived variety

Art. 14 (5)(b) - Breeder can exercise rights over essentially derived varieties Art. 14 (5)(b) - Breeder can exercise rights over essentially derived varieties Essentially derived varieties are: Essentially derived varieties are: –predominantly derived from the protected variety –derived from a variety that is predominantly derived from the initial variety, and –it is clearly distinguishable from the initial variety In effect, breeders rights extends both clearly distinguishable and clearly indistinguishable derivative varieties. In effect, breeders rights extends both clearly distinguishable and clearly indistinguishable derivative varieties. –Provides scope for breeder to claim rights over farmers experimented variety.

Hybrid Protection over clearly indistinguishable varieties Protection over clearly distingusishable but essentially derived material

Limitations on Breeders Rights Breeders rights have few restrictions Breeders rights have few restrictions –Art 14(1)(b): Breeder may make his authorization subject to conditions and limitations –Art 17: No Contracting Party may restrict the free exercise of a breeder's right for reasons other than of public interest Public interest Public interest Similarity with the pharmaceutical patents argument Similarity with the pharmaceutical patents argument

Implications of UPOV Privatization Privatization Monopolization Monopolization –B and M report argues that in the case of rice 4 firms dominated the number of certificates –Profs Kesan & Janis study of Soya and Corn patents between 1970 and 2002 argue that half the issued certificates on Soy were owned by 3 companies; and by 4 companies in the case of corn.

Effect of privatization of breeding Increases pricing discretion of the monopoly holder Increases pricing discretion of the monopoly holder –B and M report suggests that seed prices increased by 176% between –Correlation between monopoly and pricing evidence in several other areas of IP Aggressive use of genetic diversity without corresponding returns (B and M) Aggressive use of genetic diversity without corresponding returns (B and M)

Effect of privatization of breeding Increased R & D as a possible advantage Increased R & D as a possible advantage –(Pre-1970): R & D increased proportionally with the increase in sale of seeds –(Post-1970): Companies spent less on R & D per sales-dollar earned

Effect of privatization of breeding Increased R & D as a possible advantage Increased R & D as a possible advantage –(Pre-1970): R & D increased proportionally with the increase in sale of seeds –(Post-1970): Companies spent less on R & D per sales-dollar earned R & D dependent on the market and sales R & D dependent on the market and sales –Supported by studies also from pharmaceutical industry

Concentration of R & D on commercially yielding varieties Concentration of R & D on commercially yielding varieties –B and M Report attributes impact of PVPA on Soy in the US on size of the market and expectation of yield Sales in developing nations bound to be lower Sales in developing nations bound to be lower –Analogy with pharmaceutical market Effect of privatization of breeding

Danger of reduced allocation of R and D for developing country crops Danger of reduced allocation of R and D for developing country crops –Parallel with the pharmaceutical debate Direct affect on investment Direct affect on investment –Also enhanced because of type of crops that are generally grown Developed nations prefer more open pollinated crops while hybrid crops are preferred in developing nations. Developed nations prefer more open pollinated crops while hybrid crops are preferred in developing nations. –Eg: US: Soybeans accounted for 1,022 applications (20 % of the total) and wheat for 472 (10%) of the applications. Only 12 % of the total applications were for corn varieties. –CHINA: 61% percent of the total applications was for maize, followed by rice (21%), wheat (4 %), and soy (3%). Effect of privatization of breeding

Effect of subsidies on PBR Assuming that PBR results in higher yield, newer varieties and better crop: Assuming that PBR results in higher yield, newer varieties and better crop: Economies will flourish if farmers can sell the produce Economies will flourish if farmers can sell the produce Farmers will not be able to sell because of the dumping of subsidized products in both local and international markets Farmers will not be able to sell because of the dumping of subsidized products in both local and international markets

Economic effect of PBR Current operation of PBR will also be subject to operations under Agricultural Agreement Current operation of PBR will also be subject to operations under Agricultural Agreement –Art 13 of AoA precluded challenges for noncompliance with Agricultural liberalization commitments –Exceptions to GATT, AoA and SCM permitted developed nations to maintain subsidies of totaling upto $ 150 billion Dumping caused from the agricultural subsidies of several developed nations Dumping caused from the agricultural subsidies of several developed nations –Resale in third markets at less than the cost of production in the exporting country; The export subsidies, direct payments and credits bridge the gap between high cost of production, high internal prices and lower world prices.

Effect of PBR on Farming Abundant availability of food becomes inconsequential if majority population (farmers) suffers from lack of trade and hence is unable to afford food Abundant availability of food becomes inconsequential if majority population (farmers) suffers from lack of trade and hence is unable to afford food Farmer cannot stock and reuse the seed because UPOV prohibits it (art 14) Farmer cannot stock and reuse the seed because UPOV prohibits it (art 14) Farmer cannot continue farming because he may not be able to afford the cost of seed for the next cultivation Farmer cannot continue farming because he may not be able to afford the cost of seed for the next cultivation –Throws farmers out of business –Creates more international trade barriers – atleast does not reduce the international trade barriers. Majority of population will be affected if the produce of the farmers cannot be so ld Majority of population will be affected if the produce of the farmers cannot be so ld

Objective based approach Public Benefit & Reduction of trade barriers Public Benefit & Reduction of trade barriers –US: Effect of the cost of foreign trade barriers on U.S. agricultural exports for 1997 was around $5.8 billion annually (includes barriers from agricultural subsidies in third world and due to lack of plant variety protection). –Developing nations loss from agricultural subsidies of developed nations: $ 24 billion. –Latin America and the Caribbean: US$8.3 billion in annual income from agriculture –Asia: US$6.6 billion; –Sub-Saharan Africa: US$2 billion. –Total agricultural exports displaced by trade distorting measures of developed nations alone from developing countries: US$40 billion per year Source: USDA's Economic Research Service and Foreign Agricultural Service

Suggestions Agricultural liberalization to precede PBR Agricultural liberalization to precede PBR Differential monopoly term Differential monopoly term –Reduction of monopoly term –Differential pricing Amendments in case of emergency Amendments in case of emergency –Definition of public interest –Introduction of compulsory licensing –Involvement of international organization –Exceptions to least developed nations