Geneva, 4 Oct (Chakravarthi Raghavan) -- In a paper (Doc IP/C/W/209) submitted to the recent meeting of the Council for TRIPS, the United States has suggested that patenting of life forms does not amount to ownership but only preventing others from taking certain actions.
A trade observer said this would be then a case of 'bonded labour' of the patented gene for 20 years (the normal life of a patent). "You don't own a bonded labour, just prevent him from doing things for himself or others."
The US paper also argues there is no need to define 'micro-organism', but the ordinary dictionary meaning could be used for interpretation!
[Art. 27.3 of TRIPS says: Members may exclude from patentability:
(a) ....
(b) plants and animals other than micro-organisms, and essentially biological processes for the production of plants or animals other than non-biological and micro-biological 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.]
The US paper says on micro-organisms:
"Some Members have asked about the meaning of the term 'micro-organisms', expressing uncertainty regarding what Art. 27.3(b) requires be patentable and what can be excluded from patentability.
The Budapest Treaty on the International Recognition of the Deposit of Microorganisms for the Purposes of Patent Procedure, done at Budapest on 28 April 1977, does not include a definition of the term micro-organism although it does define other, seemingly unambiguous terms such as 'patent procedure', 'intergovernmental industrial property organization' and 'industrial property office'. The Treaty regulations also do not define 'micro-organisms'.
[The simple explanation would appear to be that the entire scheme of WIPO treaties, while laying down rights of holders and duties of states to provide national treatment etc, in effect leaves acceding countries to make their own laws and define the patents. The problems have arisen because the WTO/TRIPS has gone beyond and has sought to lay down uniform minimum standards of protection]
The US paper continues:
"The WIPO Committee of Experts on Biotechnological Inventions and Industrial Property, which met between 1984 and 1988, also did not define the term 'micro-organism', although the term was used frequently in the discussions, as is reflected in the reports of the meetings of that Committee. The reason for the lack of definition is reflected in the Comparative Study of Patent Practices in the Field of Biotechnology Related Mainly to Micro-biological Inventions, dated 20 January 1988, prepared jointly by the European patent Office, the Japanese Patent Office, and the US Patent and Trademark Office. Page 3 of that document contains the following under the heading 'Definition of Microorganisms, If Any'.
None of the laws administered by any of the offices contains a formal definition of the term 'micro-organism.' Where definitions are used in either classification definitions or administrative guidelines, the term is defined as a non-exclusive list of organisms which are included within the scope of that term. As noted by the EPO, it does not seem expedient to introduce such a definition as the rapid evolution in the field of microbiology would necessitate its frequent updating."
"The principles of international law regarding the interpretation of treaties and international agreements should be used to determining what is meant by the term micro-organism in Article 27.3(b) of the TRIPS Agreement. Articles 31 and 32 of the Vienna convention on the Law of Treaties require, inter alia, that treaties be interpreted 'in good faith in accordance with the ordinary meaning to be given to the terms of treaty in their context and the light of its object and purpose.' The Concise Oxford Dictionary of Current English defines 'micro-organism' as 'an organism not visible to the naked eye, e.g.bacteriums or virus.' That definition should be sufficient to distinguish plants and animals generally from micro-organisms for purposes of the discussion in the TRIPs Council.
"To be patentable a micro-organism cannot be as it exists in nature. The patent granted by the US Patent and Trade Mark Office, to which India refers in its paper (IP/C/W/161, page 3, paragraph 8), claims a biologically pure culture of streptomyces violaceus which is capable of producing the antibiotic BU-3839T in a recoverable quantity upon cultivation in a culture medium containing assimilable sources of carbon and nitrogen under submerged aerobic conditions. The claim and specification, when compared to available prior art, makes it clear that the invention is new, involves an inventive step, and is capable of industrial application, as required under TRIPS Art.27.1. What is claimed does not exist naturally. The patent, therefore, is granted for an invention, and not merely a discovery. The key to what should be patentable as a micro-organism is not what name is given the biological material which the invention is based, but the subject claimed; is that a subject matter new, does it involve an inventible step,and is it capable of industrial application. If the subject matters meets these criteria, Art.27.3(b) requires that it be patentable." .....
On issues about ethical considerations against life patents, says the US paper:
"Several Members have referred to ethical concerns regarding the extent to which private ownership should apply to life forms. Many of thee concerns result from a misunderstanding regarding the nature of the rights provided by a patent. As we have noted previously and Article 28 makes clear, a patent claiming a plant or animal does not represent private ownership of life forms. A patent gives its owner, for a limited period of time, the right to prevent others from taking certain actions in relation to a protected invention. The patent does not give its owner the right to take those actions itself.
"In light of some of the interventions made during previous meetings of the TRIPS Council, a point we stressed in our previous paper bears repeating. Holding a patent on an isolated, identified and modified gene does not amount to ownership of the gene itself. A patent claiming an isolated, identified and modified gene taken from a human being certainly would not provide any property rights with regard to the source from which the original gene was obtained.
"Excluding particular subject matter from patentability will not prevent research in particular fields. Research will go forward in any area in which individual scientists and institutions have an interest. The patent system plays a significant, often critical role in determining whether the broad results of research that promise benefits to mankind are developed into products and processes that will realise those benefits. It is no accident that countries with strong patent systems, where exclusions from patentability are few, are also countries with strong private industries covering the broad range of technology, providing jobs and contributing to the creation of capital that can be invested further. Similar kinds of encouragement can be observed in relation to the development of industries related to other forms of intellectual property as well."
(The US paper also deals with sui generis systems, indigenous knowledge, and the compatibility of the CBD and the TRIPS. These will be reproduced in subsequent issues)
Environment: Arctic Pollution linked to Sites in North America
Washington, Oct 3 (IPS/Danielle Knight) - Toxic pollution that has mysteriously entered Canada's pristine Arctic region has now been linked to air emission s from specific municipal waste incinerators, cement kilns and industrial plants in the United States, Canada and Mexico, according to a new study released Tuesday.
Although there are few pollution sources in Nunavut, the region of Arctic Canada studied, it is on the receiving end of toxic pollutants known as dioxin that have been transported over long distances by the prevailing air currents, says the report by the Center for Biology of Natural Systems of Queens College in New York.
"Decision makers now have the ability to determine where dioxin is coming from and where it is going," says Greg Block with the North American Commission for Environmental Co-operation, a Montreal-based inter-governmental organisation set up under the North American Free Trade Agreement (NAFTA).
"This will be very helpful in prioritising cost-effective efforts to reduce exposure," he says.
Block's organisation commissioned the report.
Dioxin are one of a dozen types of chemicals known as Persistent Organic Pollutants or POPs, which accumulate in the fat of animals.
Dioxin, proven to cause cancer, immune deficiency and harmful reproductive and developmental effects, are unintentionally produced as by-products of incineration and industrial processes.
According to scientists, POPs are capable of being transported long distances through the environment and end up settling in colder regions because of weather patterns.
The study released Tuesday was a response to numerous scientific reports that revealed high amounts of dioxin in the food chain in the polar regions and blood supply of indigenous people living in the Arctic, known as the Inuit.
In Nunavut, for example, even thought there are no significant sources of dioxin within 500 kilometres, dioxin concentrations in Inuit mothers breast milk are twice the levels observed in southern Quebec.
Now for the first time, this study reveals where exactly the dioxin originated.
The authors of the study hope this will aid international and regional efforts to reduce dioxin at the source so that it never ends up in the food chain.
"The only possible way of dealing with the issue is going to the source and preventing or reducing the amount of dioxin that comes out of that source," says Barry Commoner, a scientist at Queens College who headed the research study.
Using mathematical and meteorological models, the study analyses 1996 -1997 data obtained by Canadian, Mexican and US environmental regulatory agencies. The model estimated the amount of dioxin emitted by each source in the three countries at its geographical location. Using weather and climate data, the model then predicted which dioxin would reach various locations in Nunavut.
Overall the greatest contribution, about 70 to 82 percent, of dioxin in Nunavut is coming from US sources.
About two-thirds of the total dioxin emission is caused by municipal waste incinerators, medical waste incinerators, cement kilns burning hazardous waste and backyard trash burning. Iron sintering, and copper and aluminum s melting, are other major sources of dioxin, according to the report.
While the contamination problem can seem overwhelming, the realistic possibility of adequately stopping the pollution at specific sources is strengthened by the study's finding that most of the airborne dioxin deposited in Nunavut originates from an extremely small number of individual sources.
Six of the total North American sources identified as emitting the most dioxin, for example, are located in the industrialised eastern half of the United States. These include three municipal waste incinerators, two iron sintering plants and one copper smelter.
Canadian sources contribute between 11 and 25 percent of dioxin reaching Nunavut, while Mexican sources contribute about five to 11 percent. The largest amount of dioxin emitted by a single Canadian source was a municipal waste incinerator in Quebec.
No single Mexican source is ranked in the top 35 percent of sites listed. Since the model used in the study relies on data from 1996 and 1997, the current amount of dioxin coming from the reported sources are likely to be much different because of recent pollution regulations, says Block.
"The snapshot could look different today since 1997 air quality regulations have come into place," he says.
Michael McCally, an expert on dioxin who teaches at New York's Mount Sinai School of Medicine called the report "tremendously significant". "We have known for a long time that native communities living in the Arctic circle thousands of miles from industry had high levels of dioxin in their blood and tissue samples and now we have specified where the dioxin is actually coming from," he told IPS in a phone interview.
Indigenous leaders are praising the researchers for finally pinpointing the exact location of pollution sources that they said have contaminated their communities for decades.
"For us, this particular study is very important," says Sheila Watt Cloutier, an Inuit leader in Canada.
Tens of thousands of Inuit people living in Nunavut territory depend on Caribou for food. Past studies have found that Caribou herds in the region are contaminated by dioxin.
"Human exposure to dioxin is almost entirely (98 percent) through animal foods, especially those that are rich in fat," according to the report released today.
In Washington on Tuesday afternoon, indigenous leaders throughout North America held a press conference in front of the US State Department. They called for lawmakers to take tougher national and international action on eliminating Persistent Organic Pollutants at the source.
"From the Great Lake tribes to the Native villages of Alaska, dioxin, DDT, PCB and other chemicals are in the bodies of our traditional food web - from the fish we eat - to the bodies of our people," says Tom Goldtooth, director of the Indigenous Environmental Network, an advocacy group based in the state of Minnesota.
In December in Johannesburg, South Africa, nations will begin the final negotiating session of an international treaty that seeks to eliminate POPs.
Environmentalists and indigenous groups alike have accused the United States of trying to weaken the treaty.
Shawn Larson, who works with Alaska Community Action on Toxics, a Native American advocacy group, says her village is very concerned about the health effects - like cancer, diabetes and learning disabilities that she says POPs are causing.
"I have come here on behalf of my people to ask that the United States government owns up to its responsibility to protect us as a people," she told reporters on Tuesday.:
