TWN Info Service on WTO and Trade Issues (Mar11/06)
9 March 2011
Third World Network

Bolivia submits detailed paper on TRIPS Article 27.3(b)
Published in  SUNS #7101dated  4 March 2011

Geneva, 3 Mar (Kanaga Raja) -- Bolivia has submitted a paper at a meeting of the WTO TRIPS Council this week detailing the trends and impacts of Article 27.3(b) of the TRIPS Agreement and why the article needs to be amended to prohibit the patenting of life forms and parts thereof.

This detailed paper follows an earlier submission that Bolivia made at the TRIPS Council last March calling for an urgent review of Article 27.3(b) in order, amongst others, to prohibit the patenting of all life forms, ensure the protection of innovations of indigenous and local farming communities and prevent anti-competitive practices that endanger food sovereignty in developing countries (see SUNS #6877 dated 5 March 2010).

(Article 27.3 of the TRIPS Agreement states that: Members may also exclude from patentability: (a) diagnostic, therapeutic and surgical methods for the treatment of humans or animals; (b) plants and animals other than micro-organisms, and essentially biological processes for the production of plants or animals other than non-biological and microbiological processes. However, Members shall provide for the protection of plant varieties either by patents or by an effective sui generis system or by any combination thereof. The provisions of this subparagraph shall be reviewed four years after the date of entry into force of the WTO Agreement.)

According to the Bolivian paper, submitted in the form of a room document, "in the 15 years since the adoption of Article 27.3(b), we have witnessed a rush towards patenting of life forms and parts thereof, a trend which is most concerning due to the ethical and moral implications as well as the adverse impacts in areas of great importance for developing countries and indigenous peoples, such as food and agriculture, climate change and health, among others."

Bolivia said that the aim of its submission is to highlight these trends and some of their impacts and resulting concerns, all of which support the call to amend Article 27.3(b) of the TRIPS Agreement to prohibit the patenting of life forms and parts thereof.

Highlighting some trends in the patenting of life forms, the Bolivian paper notes that prior to the adoption of Article 27.3(b), life forms and components of life forms (such as cells, genes, biochemical substances and proteins) were generally not considered to be patentable.

The adoption of Article 27.3(b) established that Members shall provide patents to micro-organisms, microbiological processes and non-biological processes. Article 27.3(b) also provided Members the possibility to provide patents on plants and animals as well as essentially biological process.

"Thus, the adoption of the Article promoted a new phase of extension of capitalism into nature never seen before, that is allowing the privatization of life itself," said Bolivia.

Bolivia is of the view that Article 27.3(b) triggered a process which led to the proliferation of policies and laws that permit life forms and parts thereof to be considered patentable subject matter. Article 27.3(b) also promoted the expansion of the scope of invention with the resulting effect of patents being granted to discoveries of the functions and characteristics of a living organism or parts thereof.

As a consequence, said the Bolivian paper, during those 15 years there has been a proliferation of patents and patent applications involving a wide range of life forms, including human life itself, and parts thereof such as proteins, genes, gene sequences, cells, cell lines or tissues.

Several reports and studies have documented this phenomenon, said Bolivia, pointing out that in 1999, for instance, 918 patents on staples such as rice, maize, wheat, soybean and sorghum had been granted mostly to six agrochemical corporations.

It also notes that in 2000 an investigation uncovered that, as of November 2000, patents were pending or have been granted on more than 500,000 genes and partial gene sequences in living organisms. Of these, there were over 9,000 patents pending or granted involving 161,195 whole or partial human genes, while the remainder related to plants, animals and other organisms.

Furthermore, Bolivia pointed out that a 2005 study revealed that nearly 20% of all human genes had been patented in the United States, in other words, 4,000 of the nearly 24,000 human genes.

The paper also finds that in 2008, a report revealed that about 532 patent documents had been filed by agrochemical corporations on "climate ready" genes in plants that will be able to withstand environmental stresses such as drought, heat, cold, floods etc.

According to the report, said Bolivia, the patent claims also cover substantially similar genetic sequence in virtually all engineered food crops. Between 2008 and 2010, there had been 1,663 additional patents granted on genes and plant characteristics tolerant to climate changes and extreme climate conditions.

Bolivia underscored that the patenting of life forms promoted by Article 27.3(b) raises serious ethical and moral concerns for many cultures and peoples around the world.

"The extension of patents to life forms and parts thereof as human inventions, promotes the concept of commodification of life and reduces the value of life and nature to the merely economic. Such a vision is alien (and in some cases considered intrinsically wrong) to the culture, beliefs and values of many societies, including indigenous peoples in developing countries, for which life is sacred and special, cannot be considered an invention of human beings and should not be treated as any other commodity."

A system that treats human beings and the features that make life essential as a commodity reduces the value of life to an economic value and consigns humanity to a lower level of moral development. Humanity and human progress should not be measured only or mainly in economic and commercial terms, but rather in terms of human values and dignity, said Bolivia.

Moreover, says the paper, Article 27.3(b) fosters biopiracy, as it facilitates appropriation of life forms and parts thereof that originate or that are sourced from developing countries and that have been sustained, conserved, discovered and even developed for centuries by indigenous peoples and local communities for various purposes.

Noting that according to the 1999 UN Human Development Report, the current patent system is leading to the "silent theft of centuries of knowledge" from developing to developed countries, the Bolivian paper says that allowing patenting of life forms is tantamount to condoning "theft" of knowledge developed collectively and used for millennia in developing countries.

On the negative impacts and consequences, the paper says that a general worrying trend is that a few transnational corporations now exercise monopolistic control over some of the most important sectors such as food, agriculture and health, a trend facilitated by the patent system.

In 2008, a report revealed how the top-10 transnational corporations in each sector controlled major segments of their respective markets -- for example, 55% of the pharmaceutical market, 89% of the agrochemical market, 66% of the biotechnology market and 26% of the food and beverage market.

"A serious consequence of Article 27.3(b) has also been the concentration of the control of life forms, in the private sector, in particular in the hands of a few transnational corporations based in developed countries."

For example, says the paper, 67% of the proprietary seed market is being controlled by ten transnational corporations, with one particular corporation controlling nearly one quarter of this market. In the agrochemical sector, two companies control nearly 40% of the market.

"The control a few developed countries' transnational corporations have on life forms, and parts thereof should be a cause of concern as important decisions affecting people all around the world in areas such as health, food, agriculture, climate change and environment, are being taken on the basis of profits and not the common good of humanity."

The paper also notes that patents on life forms have negative effects in terms of access because they enable the private right holders to increase the costs of access and eventually to deny it, with serious consequences in terms of health, food security and food sovereignty.

A real concern to many developing countries is the very real possibility that patents on life forms could be used to restrict the use of organisms and parts thereof by developing countries and their indigenous peoples.

Indeed, if uses or applications of plants used by indigenous peoples in medicine or agriculture, for example, get patented, they could see themselves firstly, forbidden from using their own resources and continuing with their own practices so important for their livelihood and survival, and secondly, marginalised in various ways from accessing the resources as a result of commercial exploitation, it says.

Patents on life forms and parts thereof can also adversely affect the exports and commercial activities of developing countries, says the paper further.

Various cases of such impacts have been documented, it adds, pointing, for example, to the patent on the yellow bean Enola which was used to prevent exports from developing countries' farmers to the United States or the patent of Monsanto that was used to block exports of soya meal from Latin America to Europe.

"These cases indicate that a global solution is required to address concerns pertaining to the patenting of life forms and parts thereof. As patents on life forms and their parts proliferate and the pressure to enforce IPRs intensify, cross-border trade in food and agriculture as well as other products is likely to be very much affected with serious effects particularly for developing countries."

The granting of patents on life forms and parts thereof, Bolivia further said, is often justified on the basis that it is a necessary incentive to facilitate innovation and to stimulate research and development. However, there is increasing evidence that this premise is fundamentally flawed and that this dominant model of innovation also frustrates innovation, stifles research and development and hinders science from fully benefiting the public.

It cited some of the problems posed by this dominant model of innovation that include: (i) restrictions on access to information at different stages of innovation, thus obstructing the free flow of scientific information and impeding scientific progress; (ii) reduced or delayed information-sharing among the scientific community as a result of patent requirements (e. g. that information must not be in the public domain at time of filing); and (iii) licensing practices (e. g. narrow or exclusive license terms) that have restrictive effects on innovation.

Other problems include: (i) multiple licenses may be required to access single technology or research tool, thus making access complicated, time-consuming and costly; (ii) uncertainty over the ability to obtain necessary licenses on fair terms and also conditions that discourage investment in research and development; (iii) tendency to reward creative efforts that may lead to commercial gains and as a result hindering innovation of products that have vast societal benefit but a limited market; and (iv) patent specifications, which are meant to disclose the invention, are drafted by patent attorneys in a species of "legalese" reducing the quality of the patents.

The Bolivian paper also highlights specific consequences in some sectors such as food and agriculture, climate change and health.

In the food and agriculture sector, the paper says that the detrimental impact of allowing patenting of life forms and parts thereof is particularly felt in the area of food and agriculture.

"The combination of market concentration with the ability to patent has paved the way for a comprehensive takeover of genetic resources, seeds, and even derived products by a few corporations leading to concentrated corporate power, high costs, an increase of food prices, and inhibition of agricultural innovation as well as undermining of farmers' rights."

For instance, said Bolivia, a 2005 report documents how a particular American company filed 90 lawsuits against American farmers over supposed infringement of seed patents and technology agreements, involving 147 farmers and 39 small businesses or farm companies. The report notes that the result has been nothing less than an assault on the foundations of farming practices and traditions that have endured for centuries in this country and millennia around the world, including one of the oldest, the right to save and replant crop seed.

On climate change, the paper says that profiting from the threat that climate change represents for humankind, and in particular for developing countries, various transnational corporations from developed countries have engaged in a rush to patent plants and parts of plants that could in the future represent strategic resources for the very future of humanity.

A 2008 study revealed, during the climate change negotiations, that approximately 532 patent documents have been filed by agrochemical corporations on "climate ready" genes in plants that will be able to withstand environmental stresses such as drought, heat, cold, floods etc. Between 2008 and 2010, 1,663 patent documents were revealed with regard to genes and plant characteristics tolerant to climate changes and extreme climate conditions.

Noting this trend, the Bolivian paper said that the problems generated for humankind by climate change would be compounded by the fact that transnational corporations hold 91% of the patent families pertaining to traits tolerant to climate change. Only six of those transnational corporations control 77% of these patent families, while three of the companies control 66%.

Concentration of strategic resources in the hands of a few transnational corporations in developed countries can have serious implications for developing countries and indigenous peoples.

"Although the historical responsibility of climate change lies with developed countries, it can be anticipated that developing countries will be asked to pay for access to resources that are critical to combat climate change and that in certain cases they themselves developed," said Bolivia.

The public health consequences of allowing patenting of life forms and parts thereof can be rather severe. Such patenting can have a negative impact on innovation in the health sector, create obstacles in accessing relevant technologies as well as may hamper access to medicines, vaccines and to essential treatment, the paper stresses.

This has been amply demonstrated by patents on BRCA1 and BRCA 2 genes which are responsible for most cases of hereditary breast and ovarian cancers. The patents granted to Myriad gave the company the exclusive right to perform diagnostic tests on the genes and to prevent any researcher from even looking at the genes without first getting permission from Myriad. Myriad's monopoly made it impossible for women to access alternate tests or to get a comprehensive second opinion about their results and enabled Myriad to charge a high rate for their tests, it adds.

Recently, the paper notes, the New York Federal court, recognizing the far-reaching impact of the case on medical research and public health, declared the patents invalid. This was so despite arguments by Myriad that such patents were actually inventions.

"The issue of patenting of life forms and parts thereof is also being discussed in the context of the Pandemic Influenza Preparedness: Sharing of influenza viruses and access to vaccines and other benefits negotiations in the World Health Organization. In this regard, significant concern has emerged that appropriation by developed countries' entities of influenza biological material shared on a voluntary basis will hamper relevant scientific research and access to technologies and vaccines."

Concern has also been raised that allowing appropriation of biological material contributed for pandemic preparedness is unethical and thus, cannot be condoned, said Bolivia.

"Allowing the patenting of life forms and parts thereof is simply unacceptable," concludes Bolivia, adding that such patenting is considered unethical and immoral by many cultures and traditions. It also legitimises biopiracy.

Allowing patenting of life forms and parts thereof thus represents a danger for humankind and in particular for developing countries. The costs greatly exceed the benefits. It is a problem that the international community is facing as whole and thus it requires an international solution.

For all these reasons, Bolivia proposed to amend Article 27.3(b) to prohibit all forms of patenting of life and parts thereof as an essential part of the mandate in the Doha Development Round and as an important contribution of the WTO to the development objectives. +