TITLE: Philippine Gov't Urged to Review Bio-patenting at WTO AUTHOR: Mga Magsasaka at Siyentipiko para sa Ikauunlad ng Agham Pang-agrikultura (MASIPAG), Inc. PUBLICATION: MASIPAG News Release DATE: Embargoed until 8 October 1999 NOTE: For further information please contact MASIPAG, details below MASIPAG News Release EMBARGOED until 8 October 1999 PHILIPPINE GOV'T URGED TO REVIEW BIO-PATENTING AT WTO Los Baños, 8 October -- The Philippine government should call on the World Trade Organization to review patenting of life forms under the Trade Related Aspects of the Intellectual Property Rights (TRIPs) which will lead to plunder of less developed country's genetic resources by the developed countries. In a multisectoral resolution, representatives of key government line agencies and civil society groups said Article 27.3(b) of the WTO agreement on TRIPs has "ambiguities and objectionable provisions and terms" which promotes biopiracy by allowing patent on life forms. "We believe that it is a matter of urgency that the Philippine Government formulate its position on the review of Article 27.3(b) so that it may be presented to the TRIPS Council meeting," said the resolution signed September 17 in a dialogue convened jointly by the Philippine Council for Agriculture Forestry and Natural Resources Research and Development (PCARRD) and the nongovernment Mga Magsasaka at Siyentipiko para sa Ikauunlad ng Agham Pang-agrikultura (MASIPAG). The TRIPs Council will meet on October 20-22 and WTO's Third Ministerial Conference will be held from November 30 to December 3 in Seattle. The Ministerial Conference is the highest decision-making body in the WTO. Developed countries are obliged to implement the agreement starting 1996, developing countries from January 2000 and least developed countries by 2006. The multisectoral group noted that "though TRIPs grants countries the option to exclude plants and animals from patentability, it requires patenting of microorganisms." "A mirco-organism is a life form. And depending on how it is defined by lawyers, a plant cell could be considered a micro-organism yet it can grow into an entire plant," noted Renee Vellve, Coordinator of the Los Baños office of Genetic Resources Action International (GRAIN). "Because life forms reproduce, biotechnology patents can be worded very broadly to cover even things that are excluded from your patent law, like what has been happening in Europe." The Intellectual Property Code of the Philippines (RA 8293) allows patents on microorganisms. But this runs counter to the Philippine Constitution, noted Atty. Marvic Leonen, law professor at the University of the Philippines and Executive Director of the Legal Rights and Resource Center. Under Article XII, Section 2, it is enshrined that the State is the owner of all "flora and fauna" and "with the exception of agricultural lands, all other natural resources shall not be alienated." "Which means that it cannot be the subject of ownership," said Atty. Leonen. "It cannot be the subject of patenting." African trade policy-makers have assessed that if developing countries prohibit patenting of life forms at home while such patenting continues unabated in developed countries, the problem of bio-piracy will not be resolved. Already, the Botanical Research Institute of Texas has collected over 100,000 specimens in the most interesting and endangered areas of the Philippines. From 1985 to 1992, Japanese pharmaceutical firms applied for patents on Philippine medicinal plants like banaba, sambong and lagundi. Even while TRIPs allows WTO member countries to exclude "plants" from patentability, it requires "plant varieties" to be either patented or subject to some effective sui generis system of intellectual property. Sui generis means special or unique. A sui generis system could be tailored to a country?s particular needs or interests. On this matter, the multisectoral group agreed that, "Clearly patent protection is not in our favour as a developing country and we are glad that the Philippine Government has opted to explore the possibility of enacting an 'effective sui generis' system." "This would be consistent with the Intellectual Property Code of the Philippines (R.A. 8293), the Indigenous Peoples' Rights Act (IPRA, RA 8371), the Traditional and Alternative Medicines Act (TAMA, RA 8423) and the draft Community Intellectual Rights Act (SB 1841)," it added. However, the group noted the following problems regarding the sui generis option: a) No WTO member knows what "effective" means for the purpose of trade relations. b) Developed countries have been arguing that developing countries need to adopt laws in harmony with the Union for the Protection of New Varieties of Plant (UPOV Convention). Yet UPOV is not mentioned in TRIPS and there is substantial controversy connected to the UPOV system. Through the initiative of Malaysia, the WTO will be submitting to members a presentation of non-UPOV options for sui generis compliance with TRIPS in October 1999. c) Developing countries are unanimously insisting that sui generis systems respect the rights and obligations acquired under the Convention on Biological Diversity (CBD) and the FAO International Undertaking related to the rights of farming and indigenous communities and their knowledge. The prestigious Third World Academy of Sciences, the Organization of African Unity, the group of Least Developed Countries, the African Group and the Like-Minded Group of developing countries preparing the WTO Ministerial negotiations argue that life forms are discoveries not inventions and they should therefore not be patentable. The United Nations Development Program has also called for the halt to the expansion of the patent system towards life forms. The multisectoral resolution urges the Philippine government to call on WTO Members to extend the review of TRIPS Article 27.3(b) and move the deadline for implemention from the present schedule of January 2000 for developing countries to five years after the completion of a substantive review. Present during the dialogue were representatives from the Department of Trade and Industry/ Board of Investment (DTI/BOI), Office of Congressman Tañada, College of Agriculture, University of the Philippines Los Baños (CA-UPLB), Department of Agriculture (DA), National Economic Development Authority (NEDA), Pambansang Kilusan ng mga Samahang Magsasaka (PAKISAMA), South East Asia Regional Institute for Community Education (SEARICE), Sibol ng Agham at Teknolohiya (SIBAT), Tebtebba Foundation, Inc., GRAIN and the LRRC. For inquiries, contact: Dennis Maliwanag National Secretariat Farmer-Scientist Partnership for Development, Inc. (MASIPAG) 3346 Aguila St., Rhoda Subdivision, Anos, Los Baños, Laguna 4030, Philippines Tel.: (63-49) 536-5549 Fax: (63-49) 536-5526 E-mail: masipag(at)mozcom.com ______________________________________ MULTISECTORAL PROPOSAL FOR THE REVIEW OF WTO-TRIPS ARTICLE 27.3(b) To the attention of the Philippine Government: We, the undersigned representatives of farmers? organizations, non-government organizations, and government agencies met at the office of the Philippine Council for Agriculture Forestry and Natural Resources Research and Development (PCARRD) on 17 September l999 to discuss the implications of the review of Article 27.3(b) of the World Trade Organization (WTO) agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) and the possible role and position of the Philippine Government in this review. We examined TRIPS Article 27.3(b) word by word to fully understand the meaning and implications of said Article. We then explored the elements and avenues for a consolidated multistakeholder Philippine approach toward the review process. In this process, we analysed the various positions presented by governments and non-government organizations to date on TRIPS, such as the African Group communication to the WTO General Council (WT/GC/W/302, dated 6 August l999), the Joint NGO Statement of Support for the Africa Group Proposal, and the Indigenous Peoples? Statement on TRIPS. ISSUES AND CONCERNS On the patenting of life forms, we note that even though TRIPS grants countries the option to exclude plants and animals from patentability, it requires patenting of microorganisms. This provision is enshrined in the Intellectual Property Code of the Philippines (RA 8293) that allows patents on microorganisms. However, Article XII, Section 2 of our Constitution states that the State is the owner of all "flora and fauna" and "with the exception of agricultural lands, all other natural resources shall not be alienated." On this legal basis and given the widespread objections to patenting life forms, we believe that TRIPS should be amended to state that all life forms are not patentable. Patenting of life forms assumes more importance in the context of biopiracy. African trade policy-makers have assessed that if developing countries prohibit patenting of life forms at home while such patenting continues unabated in developed countries, the problem of biopiracy will continue. We therefore endorse their conclusion that such patenting should be disallowed worldwide. This is also the view of the prestigious Third World Academy of Sciences, the Organization for African Unity and the Least Developed Countries at the WTO. The United Nations Development Program has also called for a halt to the expansion of the patent system towards life forms. Regarding protection of plant varieties, clearly patent protection is not in our favour as a developing country and we are glad that the Philippine Government has opted to explore the possibility of enacting an 'effective sui generis' system. This would be consistent with the Intellectual Property Code of the Philippines (R.A. 8293), the Indigenous Peoples' Rights Act (IPRA, RA 8371), the Traditional and Alternative Medicines Act (TAMA, RA 8423) and the draft Community Intellectual Rights Act (SB 1841). However, we note many unresolved issues and problems in this area.. a) No WTO member knows what "effective" means for the purpose of trade relations. b) Developed countries have been arguing that we need to adopt a law in harmony with the Union for the Protection of New Varieties of Plant (UPOV Convention). Yet UPOV is not mentioned in TRIPS, there is substantial controversy connected to the UPOV system. Through the initiative of India, the WTO will be submitting to members a presentation of non-UPOV options for sui generis compliance with TRIPS on October 1999. c) Developing countries are unanimously insisting that sui generis systems respect the rights and obligations we have all acquired under the Convention on Biological Diversity (CBD) and the FAO International Undertaking related to the rights of farming and indigenous communities and their knowledge. In this context, we note that the Department of Agriculture has drafted a Philippine Plant Variety Protection Act of 1999 that largely amounts to the UPOV Convention of 1991 and was prepared on the basis of consultations with just a few individuals from the academe, particularly the Institute of Plant Breeding (IPB) and the National Institute of Biotechnology (Biotech). While such a law may benefit plant breeders, the farming community, and food security at the household level, will be far more greatly affected. We are not even sure that local communities such as the farmer-breeders engaged in the MASIPAG program will be able to participate in this new system of rights, assuming the law reflected their interests. For these and other reasons, we favour the approach adopted by the developing countries at WTO which is to ascertain that sui generis systems have to respect the obligations we have towards our communities, the CBD and the FAO Undertaking. Finally, regarding procedure, while TRIPS Article 27.3(b) has been understood as something we must comply with by 1 January 2000, we note two things. First, the built-in review of this Article scheduled for 1999 means that we can amend the treaty before implementing it. There is no deadline by which the built-in review must be finished. Secondly, the Philippines can argue that it is obliged to commence the process of implementation by 1 January 2000 but not to have legislated by then. In any case, we feel that great care should be taken to conduct broad multisectoral consultations on this matter before legislating. We can join our voice now with the African Group's and appeal for an extension of the review process and, consequently, a suspension of any commitment to implement before January. OUR PROPOSALS We believe that it is a matter of urgency that the Philippine Government formulate its position on the review of Article 27.3(b) so that it may be presented to the TRIPS Council meeting on 20-21 October and to the WTO's Third Ministerial Conference in Seattle (30 November - 3 December). In this regard, we have agreed to forward the following proposals: A) Nature of the review 1. The Philippine Government should engage in the review of TRIPS Article 27.3(b) as a review towards amendment, without prejudice to the TRIPS Council's role of monitoring the process of implementation by its members. 2. The Philippine Government should engage in the review as having the effect of suspending the obligation of developing (and least-developed) country members to implement the requirement of providing either patents, an effective sui generis system of protection or a combination of both for plant varieties. The Philippine government interprets TRIPS Article 65(b) as a mandate to initiate the process to provide for protection of plant varieties -- not as an obligation to legislate on or before 1 January 2000. B) Endorsement of the African Group Position 3. The Philippine Government should explicitly endorse the position taken by the African Group at WTO on both aspects of the review of Article 27.3b of TRIPS: i.e. disallowing the patenting of life forms and biological processes, and sui generis systems for protection of plant varieties. 4. Additionally, the Philippine Government should call on all other members of the WTO to support the proposals of the Africa Group on the review of Article 27.3(b). C) Philippine Position for the TRIPS Council 5. The Philippine Government should call on the WTO Members in the TRIPS Council to amend the Agreement as soon as possible to remove its present ambiguities and objectionable provisions and terms which presently oblige Members to change their national laws to enable intellectual property rights on life forms, as this will promote biopiracy and the private appropriation of traditional knowledge and community resources. This should be a priority objective for the TRIPS Council meeting on 20-21 October, as well as for the Seattle Ministerial Conference. 6. For this, it is necessary to call on WTO Members to extend the deadline for implementing Article 27.3(b) of TRIPS from the present date of January 2000 for developing countries to five years after the completion of a substantive review of this Article (as has been proposed by the African Group). 7. The Philippine Government will not see itself as obligated to incorporate or comply with the concepts or provisions of the 1991 Convention of the Union for the Protection of New Varieties of Plants (UPOV) through legislation. The Philippine Government should maintain its position of holding its options open so that it will have every opportunity to validate its own version of effective sui generis protection consistent with the mandate of its Constitution. D) Philippine Position for the Ministerial Conference (through the General Council) 8. The Philippine Government should call on the WTO Members to formulate a Section in the Ministerial Declaration of the forthcoming Seattle Conference which faithfully reflects the proposals of the African Group as regards the review of Article 27.3(b) and which states that appropriate revisions will be made to the TRIPS Agreement in concordance with those proposals. Done in Los Baños on 17 September 1999 On behalf of the participants, Convenors [signed] DR. BEATRIZ P. DEL ROSARIO Deputy Director for Research and Development Philippine Council for Agriculture Forestry and Natural Resources Research and Development (PCARRD) [signed] MR. EMMANUEL A. YAP Executive Director Mga Magsasaka at Siyentipiko para sa Ikauunlad ng Agham Pang-agrikultura (MASIPAG), Inc. PARTICIPATING ORGANIZATIONS Rafaelito H. Taruc, Director Department of Trade and Industry/Board of Investment (DTI/BOI) Noli Mirafuente, Staff Office of Congressman Tañada Oscar Zamora, Professor College of Agriculture, University of the Philippines Los Banos Danilo Cardenas PCARRD Marga Domingo Department of Agriculture (DA) P.B. Sobrevinas National Economic Development Authority (NEDA) Rainier Almazan, Executive Director Pambansang Kilusan ng mga Samahang Magsasaka (PAKISAMA) Neth Dano, Executive Director South East Asia Regional Institute for Community Education (SEARICE) Shen Masunte, Deputy Executive Director Sibol ng Agham at Teknolohiya (SIBAT) Vicky Tauli-Corpuz, Executive Director Tebtebba Foundation, Inc. Jose Villamor Legal Rights and Resources Center (LRRC) Marvic Leonen, Professor UP College of Law and LRRC Executive Director