Patenting mother nature provokes outrage

Mahatma Gandhi once said: "the world has enough for everyone's need, but not enough for everyone's greed."

What would a Thai feel if the delicious Thai durian was patented as the property of a transnational company?

What would you feel if you had to pay a fee to enjoy a plant or fruit, or flower, which has been developed over generations by your countrymen?

What would a Thai rice farmer feel if the Thai jasmine rice, developed and cultivated by Thai farmers for years, was found to be genetically altered by some multinational corporations and then patented as their property, either in the United States or Europe?

Apparently, patenting life-forms is as easy as picking out a life-form - any part of a plant or animal - and going to the US patent office. (See sidebar.)

Sore points: Because Thailand abides by World Trade guidelines, particularly the Trade-Related Aspects of Intellectual Property Rights (TRIPS), it has to issue and amend laws according to these agreements.

Apart from the Drug Patent Law - passed in 1992 - Thailand must also legislate a Plant Variety Protection Bill by the year 2000.

The Intellectual Property Department, a unit of the Ministry of Commerce, and the Ministry of Agriculture are tasked with drafting a Plant Variety Protection Bill.

Although the Ministry of Commerce and the Ministry of Agriculture drafted separate versions, the two drafts have similar contents and aims: to protect new plant strains or varieties developed by companies or commercial plant breeders.

The sore point is: the drafts do not include provisions for the protection of indigenous plants cultivated by local farmers and the rights of farmers.

"Farmers have been conserving and improving their plant varieties for generations," explained Charoen Khumphiraphap, Chulalongkorn University's law lecturer.

Apparently, the two draft bills were based on the structure of a bill crafted in 1978 by an inter-government institution, the Union for the Protection of New Varieties Plants (UPOV).

Because of this loophole, Thai NGO networks, academics and farmers' organisations asked the government in 1996 to develop a new Plant Variety Protection Law that includes the rights of farmers and indigenous plants in its provisions.

On February 28th last year, the Chavalit government issued an order for the appointment of a drafting committee to draft a new Plant Variety Protection Bill.

The committee - with 21 representatives from the Ministry of Agriculture and the Ministry of Commerce, academics, and from the Forum of the Poor - completed a draft on November 6th, 1997. The draft is on the parliamentary agenda for legislation.

"The new draft will benefit locals more than transnational companies," said Charoen.

Murky motives: Deputy Agriculture Minister Newin Chidchob of Chuan Leekpai's government - who was assigned to oversee the matter - did come up with a lot of ideas.

First, he wanted to merge the Plant Variety Protection Bill into the 1992 Patent Law. Then, he wanted to legislate the Plant Variety Protection Bill into a royal decree. When academics and farmers opposed this, he moved to incorporate the bill into the 1975 Plant Act. This again met opposition from those concerned with the rights of farmers.

Newin's apparent haste has raised questions of a hidden motives. Insiders link the alleged repeated visits of representatives of a transnational company at Newin's ministry to Newin's legislative hyperactivity. The transnational company has long been lobbying for state support of its bioengineered cotton variety.

Mr Newin could not articulate his enthusiasm enough to satisfy his doubters. He said he wanted to merge the bills because the Plant Variety Bill has 79 items.

"Parliamentary processes are time-consuming. Merging the bill into one with the 1992 Patent Law makes things easier: It can be passed by Parliament in a day, discussing about three to four items only, not the entire bill," Newin said.

"The rest of the draft of the Plant Variety Protection Bill can be legislated into a royal decree by cabinet's approval," he added.

Something fishy: Others, including Witoon Lianchamroon of Biothai, a non-government organisation, said "something fishy was going on.

"I wonder why Mr Newin has to hurry this up," said Witoon. "People around the world are calling off or amending patents for life forms.

"I doubt if he knows what he's doing: if his proposals became a law, transnational bioengineering companies would find it easy to pick up or do very little to modify local plant genes and varieties, and patent it as their own 'invention'. This is what a company did during the cotton scandal."

Witoon says that if the Plant Variety Protection Bill becomes a royal decree under the 1992 Patent Law, biopiracy will flourish.

"Many transnational companies will be able to claim for their own the plant and animal varieties which we have improved or developed. They can use a lot of money and sophisticated technology. They can tamper with genes and patent the life-form, and it then it becomes theirs by law.

"The Thai farmers who have been experimenting and developing the seedlings for generations will lose any rights over it. Then, locals will have no incentive to develop new varieties," said Witoon.

Law experts, NGOs and locals are against the idea of demoting the status of the bill to a royal decree.

What's the difference?: Local pundits are debating the patent system. It seems that there are two ways to establish one's rights: the Patent Law and the Plant Variety Protection Bill.

The former protects an invention which uses intervention to control existing things in nature for particular benefits, while the latter protects the products directly.

Dr Jakkrit Kuanpoj of Sukhothai Thammathirat Open University, a member of the Plant Variety Protection Bill drafting committee said Thailand should not protect its plant varieties by the patents system.

He believes the bill system is better: "The patents system is not suitable for the protection of our plant varieties because a patent protects rights to industrial inventions, not life-forms. Plant varieties are life forms, and cannot be lumped together with industrial products.

Another difference is that the Patent Law gives exclusive rights to patent recipients and prevents others to access the patented products without permission, while the Plant Variety Protection Bill acknowledges the rights of farmers and allows them to select and keep seedlings for their next planting.

"Secondly, a patent grants total rights to the patent recipients. They can monopolise agricultural products. This prevents non-recipients from accessing the plant's genetic structure, which is how farmers generally improve plant varieties," Dr Jakkrit said.

"The intention of the bill is to diminish the level of monopoly and grant the public rights to access plant varieties," he added.

Aside from a difference in the intention, the Plant Variety Protection Bill and the Patent System also differ in terms of protection management. Dr Jakkrit feels it is impossible to merge these two laws together.

"Patents laws may work in developed countries but not in developing countries where farming is more prevalent.

"Farmers will be directly hit: they will be the ones to have to pay the patent fees and they will not even be able to keep their seedlings," said the lecturer.

Dr Jakkrit was concerned that improved seedlings using modern processes of bioengineering will cost more than traditional improvement.

"In addition, the new seedlings are designed to depend on agricultural chemical products such as fertilisers and insecticides. Consequently, farmers will have to spend more.

"Therefore, the monopoly granted by the Patent Law will drastically affect people in developing countries where farming is a major livelihood."

Good or bad?: Some officials said it was good that transnational companies came to develop our plants, vegetables and herbs because it gives us a larger market.

However, Vud Thammavej of the Medical Herbs Association disagrees. "Do they know the consequences? How long will they buy our raw materials?" he said.

"This is not to reject development and technological advancement. However, we question: who benefits from the Patent System?" Vud asked.

His concern was also shared by Chula lecturer Charoen.

"Before allowing research, we must first protect ourselves. At present there are no mechanisms to protect local communities who are highly vulnerable to unrestrained bioprospecting.

"These communities will remain unprotected until our Plant Variety Protection Bill is legalised.

"But if the patent of life forms is permitted, what will happen to the wisdom and collective rights of the locals?" the lecturer questioned.

Dr Jakkrit said that although some ministers tried to bring two different issues together, the original intent of the Convention on Biology Diversity (CBD) is for the conservation and sustainable use of biodiversity for the whole humanity.

"But the CBD should not become a mechanism for transnational corporations to trade in biodiversity in the name of 'access' and 'benefit-sharing'," he added.

Dr Jakkrit believes that the rights of the locals are under tremendous threat once the bio patents law is passed.

"In the long term, patent recipients will develop products substitute from what they are importing from us.

"The patent system benefits industrial groups but ignores the rights of the rest," he said.

Patenting protocols: The General Patent Law stipulates a three-point criteria to qualify anything for the patent system:

1. Novelty : the product must never have been revealed to the public before.

2. Inventiveness : The process of invention uses newer and better technology, or, is being developed into a better form or strain than existing forms or strains.

3. Industrial applicability : The invention can be used for industrial purposes.

The Plant Protection Bill, on the other hand, protects its plants using the following four-point criteria:

1. Novelty: The plant must be a new strain or variety.

2. Originality: the strain or variety must have traits different from other plant varieties in physical, appearance or other quality over seasons of production.

3. Distinguishability : the strain or variety is obviously different from other strains or varieties.

4. Stability: the strain or variety retains its plant characteristics over normal breeding procedure.

"Our concern is how to identify the plant variety being claimed by those who want to patent a plant," said Dr Jakkrit.

"Another problem is how to identify genetic traits or describe that the plant is a new breed," he added.

Mr Charoen feels that Newin's proposal to blend the Plant Variety Protection bill into the 1975 Plant Act runs a high risk to lower the status of the bill into a mere organic law of the 1975 Plant Act.

"The Plant Act only stipulates seedling standards and advertising of seedlings. That's why I can't really understand why he wants to do this.

Mr Charoen expressed his concern that "A royal decree can be changed overnight by a cabinet approval. It is easy for them to distort the decree to serve their interests, not people."