Plant Breeders' Wrongs righted in Australia?

PLANT BREEDERS' WRONGS RIGHTED IN AUSTRALIA?

News Release - November 11, 1998

from RAFI and HSCA

The Australian Plant Breeders' Rights Office has been under attack during all of 1998. It stands accused of abetting the bio-piracy of Farmers' Varieties from Africa, Asia, Latin America and of allowing Australian Aboriginal plant varieties to be similarly appropriated for private gain. Finally Canberra's PBR Office has now issued new 'instructions' intended to prevent such piratical plant patents. But will these reforms do the job? And what about past abuses? What will it mean for the renegotiation of the WTO's "TRIPS" (patent) chapter December 1-2?

According to the Government's Plant Variety Journal (Vol. 11, No. 3, 1998). breeders applying to the Australian Plant Breeders' Rights Office to claim exclusive ownership over a plant variety will now have to name the parent germplasm, how it was obtained, and explain how their 'invention variety differs from its parents.

This is a important concession. In their September report, RAFI and HSCA pointed out that 37% of the suspect Aussie claims offered no evidence of actual plant breeding. This lent weight to protests that Aussie breeders could be pirating Farmers' Varieties from overseas and falsely. pretending to have done real breeding.

The new regulations also 'strongly recommend' that applicants field trial varieties against parent varieties in order to prove that it is 'new' - real invention as required under the Australian PBR Act. If this is not complied with, applicants must give the reasons why this has not been done. Clearly this is a response to the criticism by HSCA and RAFI that 29% of all the dubious claims have not established that their 'new' variety is distinct from the source germplasm via a "grow-out" evaluation.

Another change being introduced is to put a 2 year time limit 'provisional protection'. Some applicants simply lodged applications for varieties and gained provisional protection but did not follow through by presenting the evidence needed to complete the process. This may have given significant commercial advantage to these PBR 'owners' without any real proof that the varieties were new at all. In their Plant Breeders Wrongs Report HSCA & RAFI noted that 16% of the 118 wrongful claims were abuses of this type.

While these three regulatory changes have the potential (if maintained and monitored) to address the major causes of Bio-piracy in Australia, they relate only to new applications. Bill Hankin, President of HSCA, confirms that "These rules are not retrospective. The many certified varieties that would not have been able to meet these standards - and that were probably claimed illegitimately - continue to be protected. In fact any applications which were lodged before the new instructions were published, will be treated under the old regime. The PBR office seems to be closing the barn door only after the horses have escaped."

Meanwhile another proposed legislative change could, in fact, protect pirates retrospectively. "The Government says it may extend from 6 years to 8 or more, the length of time a variety can be sold in the market before PBR is claimed or granted," Hankin says. "Ten percent of the possible abuses we identified appear to have violated the old time restriction. Rather than redress this problem, the government is moving the goal posts. " RAFI's Edward Hammond, who co-drafted Plant Breeders' Wrongs with Hankin, agrees, "In sum, these changes match what we've been hearing ever since our report. Breeders in Australia are embarrassed but they are not willing to admit their failings nor give back any money they made through mistaken claims. These new regulations go someway toward prevention but they also entrench the piracies of the past and present. The new instructions protect the pirates but do not defend the pirated." "If Australia wants to regain its good reputation among farmers and scientists around the world," Hankin concludes, "the government has to come clean. These changes are a backhanded acknowledgement of the problem but there's no reassessment of the PBR property titles wrongly issued over the past 10 years . The bio-pirates will keep on gaining a monopoly profit which they do not deserve." Hankin concludes that "there is still a real need for the Plant Breeders Rights Act and the operations of the PBR Office to be thoroughly examined. by a Senate Parliamentary committee. "

Meanwhile in the same issue of the Plant Variety Journal came news of another Australian PBR claim being abandoned. "Indus", ( Listed as no.33 in HSCA/RAFI's Plant Breeders Wrongs Report,) a barnyard millet collected in a Pakistani market in 1954, has been dropped by the Queensland St Lucia research station of CSIRO (Commonwealth Scientific and Industrial Research Organisation). This Farmers' Variety was granted a PBR certificate in Australia in 1995. This brings to six the number of exposed claims abandoned in Australia so far this year. RAFI and HSCA listed 118 dubious Australian claims in their September report. Meanwhile, a number of new claims - on rice varieties in Japan, forages and cereals in Italy, and other forages in Australia - have come to light. RAFI's Edward Hammond is flying to Rome for meetings this week with CGIAR and FAO authorities, at their invitation, to discuss mechanisms for monitoring crop gene flows on the internet. He is bringing along the list of possible new abuses. "

The Australian regulations come had on the heels of a new agreement adopted in Washington DC at the end of October. FAO and the Consultative Group on International Agricultural Research (CGIAR) have adopted a new and exhaustive procedure clarifying what each party will do if crop germplasm held in trust becomes the subject of intellectual property claims. The understanding guarantees that both the UN Agency and the scientific organisation will be pro-active in tracking down abuses and demanding that pirates withdraw their claims. Earlier this year, at RAFI's suggestion, FAO and CGIAR called for a moratorium on any claims related to "trust" germplasm. The new deal puts some teeth into the moratorium. As a member of both FAO and CGIAR, Australia's delegation welcomed the tough new procedures at the Washington meeting.

But at the international level fundamental problems remain. The World Trade Organisation ( WTO ) will be meeting in Geneva on December 1st and 2nd to discuss the review of its special chapter on Trade-Related aspects of Intellectual Property (TRIPS). Pat Mooney, RAFI's Executive Director, says "The TRIPS governing Council needs to heed the message. The prevailing Western models for intellectual property protection over plant varieties actually aid and abet bio-piracy. Either they change the systems or they must scrap the WTO requirement that every WTO member country adopt plant "patent" legislation. It is simply immoral to impose piratical systems on poor farmers and their countries." Mooney has been invited by the South Centre (a Third World intergovernmental think tank) to meet with ambassadors from developing countries to discuss the issue on November 30th, just prior to the WTO negotiations. "This is an opportunity for South governments to determine what mechanisms the World Trade Organisation should have in place to prevent and redress bio-piracy," Mooney suggests. "Ambassadors might also examine the role of the Union for the Protection of New Varieties of Plants UPOV - the Plant Breeders' Rights convention]. If Australia is now in the lead in regulating against plant piracy, what of the other UPOV country members? What is UPOV telling them?" asks Pat Mooney. During 1999, as the WTO undertakes its review of intellectual property rules for plant varieties, RAFI and HSCA will continue to monitor the WTO and UPOV closely.

For further information: Pat Roy Mooney Executive Director RAFI Tel: (1-204) 453-5259 Fax: (1-204) 925-8034 E-mail: rafi(at)rafi.org URL:
http://www.rafi.org

or

Bill Hankin President Heritage Seed Curators Australia Tel: (03) 5153 1034 E-mail: han.HSCA(at)b150.aone.net.au URL: www.ozemail.com.au/~hsca

HSCA is an Australian 'not-for-profit' Association based in Bairnsdale, Victoria. HSCA is dedicated to the conservation and sustainable use of plant genetic resources for food and agriculture around the world.

RAFI is a non-profit international civil society organisation headquartered in Canada. For more than twenty years, RAFI has worked on the social and economic impact of new technologies as they impact rural societies.