Info Service on Intellectual Property Issues (Nov17/09)
The International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA) has decided to begin serious work on the subject of sequence information of crop genetic resources. Meeting in Kigali, Rwanda from 30 October to 3 November, the ITPGRFA Governing Body adopted a decision on the issue. The ITPGRFA will solicit information from governments and others next year, which the Secretariat will prepare for discussion as a substantive agenda item at the Treaty’s next meeting in 2019.
Plant Treaty to Address Genetic Sequence Information
By Edward Hammond, Prickly Research
The International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA) has decided to begin serious work on the subject of sequence information of crop genetic resources. Meeting in Kigali, Rwanda from 30 October to 3 November, the ITPGRFA Governing Body adopted a decision that takes a parallel approach to that of the Commission on Genetic Resources for Food and Agriculture (CGRFA), also a UN Food and Agriculture Organization (FAO) body.
ITPGRFA will solicit information from governments and others next year, which the Secretariat will prepare for discussion as a substantive agenda item at the Treaty’s next meeting in 2019.
Proponents of fast action on sequence information, mainly developing countries, had hoped for a stronger decision that, for example, included an intersessional expert body to develop guidance on the subject. Another stronger idea was for Treaty Parties to have asked companies and others to voluntarily share benefits from use of sequence information as an “emergency measure” in the interim before the Treaty decides on its approach.
Such stronger measures were opposed by developed countries, particularly Europe and Japan who delegates say privately threatened to stop progress on other Treaty subjects, such as Farmers’ Rights, if they were pushed too far on sequences. The South, which was led by the G-77 and African negotiators, thus settled for the present decision in anticipation of deep discussion at the next Governing Body meeting.
The United States – a new Party to the Treaty – was more amenable than Europe to discussing sequence information. Like Europe, however, the US maintains that sequences are out of the Treaty’s scope.
But observers see pragmatism in the US position. The US is not a Party to the Convention on Biological Diversity (CBD), which is conducting its own work on sequences including studies and extensive technical consultations. As Washington has a relatively weak hand in shaping the outcome of CBD discussions on sequences, it is more open to discussing them in the Treaty, where it hopes to wield more influence over the outcomes.
Effect on the Working Group to Enhance the Multilateral System
Going into the Kigali meeting, the Co-Chairs of an ITPGRFA Working Group that has long been trying to reshape the Treaty’s Multilateral System (MLS) expressed optimism. At the meeting’s opening, the Dutch Co-Chair spoke of the possibility of his group delivering a “breakthrough” at the Kigali meeting.
But the Co-Chair’s rosy outlook was not shared by many of the Working Group participants, who found industry’s positions wanting and a Swiss proposal to amend the Treaty to widen the scope of the MLS to be both premature and insensitive to developing country positions. Exiting the Working Group’s discussions mid-week, a disappointed developing country negotiator declared, “we’ll never get benefit sharing”.
Prior to the Kigali meeting, the sequence information issue had been one of the major unresolved – and barely discussed – items on the MLS Working Group’s agenda.
With the Kigali decision that will open a separate and full agenda item on sequence information, and the lack of progress in other areas in the MLS Working Group’s discussions, momentum in the Treaty is shifting away from the long and frustrating MLS Working Group discussion toward sequence information and Farmers’ Rights, where progress was made on an intersessional process to discuss their implementation.
At the very least, it now seems quite unlikely that an agreement to revise the Treaty’s MLS can be reached until after the Governing Body has discussed and agreed upon an approach for sequences. This being due to the fact that companies and other researchers are increasingly able to access sequence data and use it in ways that replace the need to physically access seeds and other propagating material.
IRRI in the Crosshairs
A significant catalyst of the Treaty’s move to discuss sequences is a controversial series of patent applications on gene sequences, or “traits”, recently claimed by the International Rice Research Institute (IRRI) in Los Baños, Philippines.
First made public in March of this year, IRRI’s claims include the sequence of a gene from an Indonesian farmers’ variety. That claim and several others rely on farmers’ varieties of rice held by IRRI in-trust under the Treaty. The claims raise the spectre of IRRI and perhaps soon other Consultative Group on International Agricultural Research (CGIAR) centers mining their own genebanks for profitable sequences. This possibility touched off a storm of concern among NGOs, farmers’ organizations, and governments.
IRRI tried to respond to the controversy before the Governing Body meeting by quickly changing its intellectual property policy to say that any licenses that it concludes with seed companies for the patents will include an obligation for the licensee to pay into the Treaty’s Benefit Sharing Fund. Under the previous policy no such payment would have been required.
While CGIAR attorneys at the Treaty meeting touted IRRI’s move as a solution, their argument was roundly rejected by NGOs and farmers’ organizations, and the appearance of impropriety remained for several reasons.
Farmers in particular question IRRI’s right to lodge the patent claims at all – after all, the plants that are the source of the gene sequences came from farmers’ fields. Also, IRRI plans to collect royalties from its patents above and beyond what is paid into the MLS, meaning that it will also generate benefits for itself from its patents, and these may be substantially larger than what goes to the MLS. Some of the claims cover yield-increasing gene sequences, and potential financial gain from the patents could be substantial.
Further, observers worried that IRRI is becoming intent on transforming itself into a patent powerhouse, and that this will come to impair its mission to serve developing countries and farmers, turning IRRI into a closed shop intent on generating license income from seed multinationals rather than an institution focused on supporting public research systems. Finally, it was also widely rumored that other CGIAR centers are looking to copy IRRI’s approach, meaning the problem is poised to grow larger.
In sum, it was the sense of many in Kigali that the issues raised by IRRI’s sequence patents tie into the broader discussion on sequence information ongoing at the CBD and CGRFA and necessitate serious consideration by Treaty Parties. Thus, in the view of many at the Governing Body, IRRI’s attempt to make the sequence patent problem go away by wordsmithing its intellectual property policy, even if well-intentioned, has fallen well short of the level of consideration necessary to address the issues.
Coming Up in Sequence Information
Focus in the discussions on sequence information, or “digital sequence information” (DSI) as it is called by the CBD, will now shift to the upcoming meeting of the Biodiversity Convention’s Ad Hoc Technical Expert Group (AHTEG) in Montreal in February 2018, which will be followed by another discussion by the CBD’s Subsidiary Body on Science Technical and Technological Advice (SBSTTA) in July 2018.
See Hammond E 2017. IRRI Seeks Patents on Yield-Boosting Gene Taken from Indonesian Farmers’ Rice. Third World Network Info Service on Biodiversity and Traditional Knowledge, 10 March. URL: https://www.twn.my/title2/biotk/2017/btk170301.htm