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TITLE: Observations on the Status of Plant Variety Patenting and Protection in Fiji in Relation to TRIPS Article 27.3(b) AUTHOR: Joeli N. Vakabua, MAFF PUBLICATION: Paper presented at the UPOV-WIPO-WTO Regional Workshop on "The Protection of Plant Varieties under Article 27.3(b) of the TRIPS Agreement", Bangkok, 18-19 March 1999 NOTE: The author's contact address is provided below. Further status reports presented at the same workshop by China, India, Indonesia, Korea, Philippines, Pakistan and Thailand may be requested by subscribers from grain(at)baylink.mozcom.com.

OBSERVATIONS ON THE STATUS OF PLANT VARIETY PATENTING AND PROTECTION IN FIJI IN RELATION TO TRIPS ARTICLE 27.3(b)

Joeli N. Vakabua (Acting Director Research, MAFF, Fiji)

SUMMARY

Fiji, in the true sense of the word, neither has an official "plant variety" that has been developed nor an officially recognized or registered "plant breeder".

However, plants have been domesticated by the indigenous peoples of Fiji and "bred" over time even before the discovery and colonization of the Fiji islands by the western civilization in the 1800s. The Fijian culture has developed very strong ties between the indigenous "custodian" and the various plants. These ties have now become documented and registered in the written annals of Fijian cultural and tribal ownership.

Then there are farmers in the modern term of the word who have over the years developed their own plant varieties. For example, the Indians who were brought to Fiji in the 1800s under the British Indentured labour System have developed several local varieties of rice which they still maintain on their farms to this day.

Most international conventions, treaties and acts developed in the 19th and 20th Century protects and empowers the modern day commercial and professional breeder which leaves farmers and indigenous people more or less in a very very exposed, exploitable and unprotected situation.

It is therefore important that a balanced protective mechanism be devised to look after the rights of the farmers as distinct from the rights of the indigenous owners/custodians of various plants and plant varieties of Fiji. Furthermore, the principle mechanisms of and for equitable and fair benefit sharing in the true sense of the word needs to be institutionalized from international companies and multinational corporations to the indigenous owners out there in the physical environment where they live. Finally, Prior Informed Consent needs to be institutionalized also in the international conventions, treaties and acts for the protection of these developing uninformed communities.

Article 27.3 (b) of TRIPS and the sui generis that is to be developed from it to account for the balance protective measures, equitable and fair benefit sharing and the prior informed consent of indigenous owners, really needs to be made the official mandate. This consensus could to be taken back from this meeting by all WTO members for further negotiations during the revision of the TRIPS Agreement.

1. INTRODUCTION

Like most developing countries of the Pacific Islands who are aware of bio-piracy activities, Fiji will use the kava plant (Piper methysticum) as the example to highlight the need for special consideration given to small developing economies by the WTO.

In the case of Fiji, it is requested that we be allowed that, when the need arises, to give even plants and all forms of their derivatives protection that may be unique to Fiji alone.

If Fiji and similarly disadvantaged countries could be accorded a more amenable, protective, specific and definitive clause in ART. 27.3 (b) of TRIPS than its present form, then the overall gain to WTO community in the form of trade will surely be forthcoming.

2. THE KAVA PLANT, ITS CULTURAL DEVELOPMENT AND USE.

The kava plant has been "developed" in eight (8) very specific geographical locations in the world confined within the ocean communities of the Pacific Island Countries (PICs). The specific countries are Fiji, Tonga, Samoa, Tahiti, Vanuatu, Wallis & Futuna, The Federated States of Micronesia, and Hawaii.

The kava plant cannot be sexually propagated. It is only because of the human intervention - three thousand years of vegetative propagation - that kava as we know it today has come into being (Peteru, 1997). 118 different varieties of kava have become a native flora of those PICs that developed them.

Research on the chemistry of kava was carried out from the late 1950s to the 1980s. The overseas scientists who did the research either worked in Fiji or worked outside of the country. This has lead to the patenting of the compound overseas (Table 1 ).

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Table 1. Some Kava Patents held outside of Fiji

EP 664143 Kava extract for oral admin. Comprises: a) kavapyrones bonded as a microdispersion and/or solid solution to a polyvinylpyrrolidone, cellulose and/or starch carrier which is solid at room temp.; and opt. b) adjuvants and/or additives. The kavapyrones are demethoxyangonin, dihydrokawain, yangonin, kawain, dihydromethysticin and methysticin. The extract is useful for the treating anxiety, tension and restlessness. The extract gives better liberation of the kavapyrones in the gastrointestinal tract than prior art formulations. Using a cross-linked cellulose carrier reduces the side effects caused by resorbed flavokawins since these are absorbed to the carrier in the gastric fluid.

EP 523591 The kava extract and its components have a neuroprotective effect and can be used in the treatment and prophylaxis of strokes (Apoplexia cerebri) and of brain dysfunction, including Alzheimer's cerebrovascular dementia and dementias caused by infection, brain trauma, chromosomal disorders, tumours, hydrocephalus, metabolic disorders, deficiency diseases and poisoning. Symptoms of such diseases are e.g. loss of memory, concentration, the ability to think and understand, orientation and emotion. The kava extracts are also effective against general disorders of the circulation of the blood in the brain

DE 4028945 A dry extract from the rhizomes of Piper methysticum Forst. contains at least 50 wt.% Kawa lactones and at the most 0.3 wt.% flavokawin. Powdered rhizome of Piper methysticum Forst. (Rhizome Kawa-Kawa) is extracted with a suitable solvent such as propanone, CHCl3, ethyl ethanoate, 1-4C alcohols or their at least 50 wt.% mixts. with water. The crude extracts are then conc. to dryness and redisolved. The flavokawin in content is reduced by cold pptn., by solvent partition or by selective adsorption on aluminium oxide. The solution is then evaporated to dryness to give pure extract. Cold pptn. is carried by mixing the crude extract solution with water or with an alkanol water mixt, cooling to 5-10ÂºC and leaving the mixture to stand for several hours. Partition in a solvent is carried by adding suitable solvents to give a two phase system consisting of an organic and an aqueous phase, sepg. the aq. phase and evaporating it to dryness. Selective absorption is carried by charging the crude extract soln. to a column filled with aluminium oxide and eluting with a suitable solvent such as CHCl3, ethyl ethanoate, dioxan, or a 1-4C alkanol.

DE 330398 Preparation for maintaining and increasing human mental and physical performance contg. an active substance combination of kava-kava and least one biologically active mineral. The combination of active substances is pref. dissolved in alcohol, water and/or a drink such as vitamin-contg. fruit juice and fruit nectar. Preferably, 40 ml of solvent contain ca 01-0.5g (esp. 0.15g) kavakava tinctures. Particularly preferred compositions contain ca 50-70 wt.% kavakava (as a tincture) and 5-15 wt.% each of iron phosphate, calcium phosphate, potassium phosphate and magnesium phosphate. Use- E.g. before examinations to stabilise the psyche, or for sportsmen before sporting events. Kavakava gives a rapid and long-lasting effect and, for use by sportsmen, does not contravene drug regulations.

US 558386 Topically applicable hair growth-/hair loss-affecting cosmetic/therapeutic compositions are disclosed for treating mammalian subjects with hair or scalp disorders comprising an effective amount of at least one alpha-pyrone compound as kavain, formulated into a physiologically topically acceptable carrier medium, whether organic or aqueous, or mixtures thereof.

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Furthermore, kava is now being grown it seems in one of the South American countries and Australia. We are not aware of any form of Prior Informed Consent (PIC) of such activities nor has there been any material transfer agreements or benefit sharing instruments.

While the dried plant is sold at $20 per kg (US$8 per kg) in Fiji the same is sold $170 per kg (US$70 per kg) overseas. Even so, Benefit Sharing in the form of royalties, licensing and so on is non-existent where the native Fijian is concerned.

The indigenous native of Fiji has a unique link with its native flora and fauna in that they are owners and custodians of these biological entities (Table 2). Owner ranges from specific agnate or family units, to clan custodianship, even up to levels. Not only is ownership related to plants but to animals also. For example, is a Melanesian tribe in Nadi, which is the custodian of the breadfruit plant ( whom the breadfruit "belongs", and there are the oranges of the Polynesian people Rotuma. The seaweed is known to belong to the natives of Gau islands in the Waters of Fiji, the bamboo of the Vunibitu clan, the chestnut of the people of etc.

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Table 2 : Some examples of customary Fijian plant "ownership"

PROVINCE/DISTRICT/ISLAND | VILLAGE | TRIBE | PLANT

Source: Native Land Commission, Fiji 1999.

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3. TRIPS AND OTHER CONVENTIONS

The objectives of TRIPS are outlined in Art.7 thus:

"The protection and enforcement of intellectual property rights should contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of the producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations."

While the language of the objectives is straightforward, Article 27 of TRIPS raises contentious issues centering on the use of patents as a device for securing ownership (Peteru, 1997).

In the case of the Pacific Islands including Fiji we don't even have a Patent Office. While we may have unique plants, TRIPS does not allow patents to be taken out on plants. Furthermore, while we have "plant varieties" their protection has been unsuccessful as per the kava example above.

It has been said that the UPOV Act of 1978 did have some protection of Farmers' Rights but this has been completely removed at the insistence of professional breeders by the UPOV Act of 1991. The new UPOV stance of 1991 seems to provide exclusive protection of commercial plant breeders and multinational companies, with the total exclusion of farmers, indigenous custodians and all others.

While the Convention on Biological Diversity did have some mechanism for the maintenance of biological diversity TRIPS supersedes this which once again leaves farmers, native custodians at the mercy of commercial and professional breeders.

4. MORALITY

This is an interesting term in TRIPS. If the simple layman understanding of morality is used in the problems Fiji is facing in the exploitation of its heritage in the form of kava, I perceive no morality on the part of the international community.

If the 1995 patenting of the white blood cells of the Hagahai people of my neighbours and friends in Papua New Guinea such that you do not own your own blood cell is morality, the implications are sinister.

Therefore, the right to the ownership of all plants and all forms of derivatives thereof as a protection is sought for the present and those who may follow.

Following is a proposed format of a sui generis which it is hoped provides a laymen protection of ownership of his plant, establishes mechanisms for his "prior informed consent" and possibly develop a benefit sharing system for both the professional commercial breeders and the lay farmers.

5. PRINCIPLES TO BE CONSIDERED FOR THE DEVELOPMENT OF A "SUI GENERIS" SYSTEM FOR FIJI

5.1 Fiji has the sovereign right over its own natural flora and derivatives thereof both locally and in third countries.

5.2 Fiji's Farmers' Rights arising from the past, present and future contributions of farmers in conserving, improving and making plants and plant genetic resources available are recognized internationally. This recognition is needed in order to allow farmers, their communities and countries in all regions of the world to participate fully in the benefits derived at present and in the future, from the improved use of plants and plant genetic resources, through plant breeding or other scientific methods.

5.3 Fiji's Indigenous or Custodians' Rights arising from the past, present and future contributions of the custodians in conserving, improving and making plants and plant genetic resources available also needs to be recognized internationally. Once again this is in order to allow custodians, their communities and countries in all regions of the world to participate fully in the benefits derived at present and in the future, from the improved use of plants and plant genetic resources, through plant breeding or other scientific methods.

5.4 Fiji's biological diversity, including genetic diversity, shall be conserved, enhanced and used in a sustainable manner. Patents and other IPR shall be supportive of and not run counter to this objective.

5.5 Access to Fiji plants and genetic resources by a third country or party in a third country shall be subject to Prior Informed Consent (PIC). Where granted, access shall be on mutually agreed terms.

5.6 Benefits arising from the commercial and other utilization of Fiji plants and genetic resources both locally or in a third country shall be shared in a fair and equitable way upon mutually agreed terms, multilaterally or on a bilateral basis.

5.7 The results of research and development arising from the utilization of Fiji plants and genetic resources, as well as the technology using such resources, shall be shared with Fiji in a fair and equitable way on terms mutually agreed upon. Transfer of technologies relevant to the conservation of biological diversity, and access to the sustainable of its components, and to technologies that make use of these plants and genetic resources shall be provided and/or facilitated to Fiji under fair and most favorable conditions.

5.8 Fiji's custodian, indigenous and farming communities' knowledge, innovation and practices related to plants and plant genetic resources shall be protected and encouraged. Special measures shall be taken to ensure this, including mechanisms of free and informed consent.

5.9 The utilization of Fiji's plants and plant genetic resources whether locally or in a third country shall be in a manner that is sustainable to the environment.

6. ACKNOWLEDGEMENT

I would like to thank UPOV, WIPO, WTO and the New Zealand Government for the organization and my sponsorship to partake in this very important workshop on the IPR of plants and plant varieties and particularly on TRIPS Article 27.3(b).

I would like to thank the Permanent Secretary for Agriculture, Fisheries and Forests for recommending my participation, and the Ministry of Foreign Affairs and External Trade for facilitating it.

Authors of papers which I have used as reference to this documents are acknowledged graciously. The Commissioner of the Native Lands and Fisheries Commission is thanked for his assistance on plants that are listed to the various Yavusa (Tribes) of the native aborigines of Fiji.

7. REFERENCES

Clark Peteru (1997) "Case Study-Indigenous Innovations and Practices" A South Pacific Perspective

Leskien D. and Flitner M. (1997) " Intellectual Property Rights and Plant Genetic Resources: Options for a Sui Generis System" IPGRI, Issues in Genetic Resources No. 6, June 1997

For further information please contact:

J. N. Vakabua Acting Director Research MAFF P.O. Box 77, Koronivia, Nausori, Fiji Is. Tel: (679) 477044 Fax: (679) 400262 E-mail: vakabuajn(at)is.com.fj

Fijian perspectives on TRIPS 27.3(b)