TITLE: Opinion of the Office of the Ombudsperson of the Republic of Costa Rica regarding the "Budapest Treaty on the International Recognition of the Deposit of Microorganisms for the Purposes of Patent Procedure" AUTHOR: Office of the Ombudsperson of Costa Rica (Defensoría de los Habitantes) DATE: July 2008 (English summary and translation) URL: Available soon at http://www.dhr.go.cr. Advance copy posted online at http://www.bilaterals.org/article.php3?id_article=13205. COMMENT FROM GRAIN: In 2004, the United States concluded a free trade agreement with five countries of Central America (Costa Rica, El Salvador, Guatemala, Honduras, and Nicaragua) plus the Dominican Republic, commonly called CAFTA. Among other things, CAFTA imposed new rules to strengthen the patenting of biodiversity in the region for the benefit of US corporations. This included an obligation on all CAFTA members to join international treaties like the Union for the Protection of New Plant Varieties (UPOV) and the Budapest Treaty on the International Recognition of the Deposit of Microorganisms for the Purposes of Patenting Procedure. Costa Ricans debated these issues intensely in the run-up to a popular referendum last year on whether or not to accept the overall trade deal. In that process, the Office of the Costa Rican Ombudsperson, an official but independent human rights watchdog appointed by parliament, drew up an 80-page investigation into the implications of joining the Budapest Treaty. A 20-page summary of that report is now available in English. GRAIN would like to draw attention to this report for the following reasons: 1. There is very little independent analysis of the Budapest Treaty and its implications for small farmers, indigenous peoples and other local communities, not to mention to mention its wider impacts on agricultural development, biodiversity, public health, ethics, issues of sovereignty and peoples' rights. 2. Despite this gap, more and more developing countries are being obliged to join the Budapest Treaty under bilateral and regional free trade agreements or FTAs. This is mainly the case with US and European FTAs (both those of the European Union and those of the European Free Trade Association formed by Iceland, Lichtenstein, Switzerland and Norway) 3. The Budapest Treaty clearly overlaps with both the FAO International Treaty on Plant Genetic Resources for Food and Agriculture and the UN Convention on Biological Diversity, yet there is little understanding of how they interact. Budapest does not define "microorganism" and numerous participating genebanks, called International Depositary Authorities (IDAs), explicitly manage deposits of "seeds" (China, Japan, Korea, Spain, UK, USA) as well as other plant and animal genetic material for the purposes of patent protection under the Treaty. These genebanks, some of which are private, seem to follow "access and benefit sharing" rules that are different from those prescribed by the ITPGRFA and the CBD. For example, the American Type Culture Collection, one of the US IDAs under Budapest and a private entity, recently demanded that a Sri Lankan seeking samples of a microorganism that had been taken from Sri Lanka, patented in the US and now off patent and back in the so-called public domain, pay US$190 for a sample of the microbe and sign a legal document committing to share any benefits from his commercial use of the sample with the ATCC. The world upside down? 4. As Costa Rica's experience shows, countries joining Budapest because of free trade agreements end up cornered into changing their own biodiversity, bioprospecting and patenting laws -- eroding local communities' rights as originally promoted by CBD, while adding new layers of security for the commercial rights of foreign patent holders. Because more and more developing countries are joining Budapest under pressure from FTAs, and because there is so little awareness of how this affects their other international rights and obligations when it comes to patenting, accessing and sharing benefits from biodiversity, the work of the Office of the Ombudsperson of Costa Rica is a valuable contribution to a much needed public debate. [excerpts] OPINION OF THE OFFICE OF THE OMBUDSPERSON OF THE REPUBLIC OF COSTA RICA REGARDING THE "BUDAPEST TREATY ON THE INTERNATIONAL RECOGNITION OF THE DEPOSIT OF MICROORGANISMS FOR THE PURPOSES OF PATENT PROCEDURE", SUBMITTED TO THE LEGISLATIVE ASSEMBLY OF COSTA RICA, OCTOBER 2007. (Reviewed, summarized and translated to English in July 2008) This document regarding the "Budapest Treaty on the International Recognition of the Deposit of Microorganisms for the Purposes of Patent Procedure" (hereinafter the Budapest Treaty), was mainly written when Costa Rica was still deliberating its approval or disapproval, by referendum, of the "United States-Dominican Republic-Central America Free Trade Agreement" (hereinafter US-DR-CAFTA). The research was conducted by the Office of the Ombudsperson of the Republic of Costa Rica (hereinafter the Office) before the contested referendum held in October 7, 2007 by which the free trade agreement was finally approved. The summary of the research remains the same with just a few annotations added in light of the post-referendum situation. The Legislative Assembly did not solicit the Office's opinion on the Budapest Treaty. However, according to its competence stipulated in Article 1 of the Law, and Article 7 of the Regulations ruling its acts, the Office is allowed to study bills being considered by the congress and determine their possible implications on the lives of the citizens, as was the case with the Bill to Accede to the Budapest Treaty. Conclusions - Accession to the Budapest Treaty was one of the commitments that the Costa Rican State acquired once the US-DR-CAFTA was approved. - The Treaty does not grant patents. It rather facilitates the procedure in matter of patents allowing the deposit of microorganisms in one of the currently 37 International Deposit Authorities. - The Treaty does not require the depositor to indicate the source or the origin of the material in custody. This means that it does not demand proof of either the prior informed consent of the supplier of the material nor the certificate of origin. - The Treaty prohibits the IDA from providing information about the deposited materials. That means that interested third parties, indigenous people, rural communities and other suppliers of biological resources will see limits on the exercise of their right of opposition if their natural resources, or even their own genes, are deposited for patenting purposes. - The Treaty will consequently contribute to the lack of protection for biodiversity and will prevent the eventual sharing of benefits mandated by law to the providers of deposited biological materials. - The Budapest Treaty neither facilitates a detailed description of the deposited material nor, as a consequence, contributes to the full disclosure of the invention. The incomplete information will be insufficient, under national legislation, to exercise the right of opposition to a patent application. - The arguments given in the affirmative verdict of the majority at the Legislative Assembly of Costa Rica on the bill for Accession to the Budapest Treaty to defend the notion that the Treaty promotes the description and disclosure of inventions are not supported. - The Budapest Treaty does not define its subject matter, i.e. the word "microorganism", for the purpose of allowing the deposit of biological materials in general and expanding their protection through proprietary rights. - Some of the deposited biological materials do not qualify as microorganisms. - The WTO Council for TRIPS and several branches of WIPO continue discussing to what extent life forms are patentable or not. That means that, worldwide, the discussion is open. Therefore, the obligations regarding intellectual property rights at those multilateral fora are still uncertain. Meanwhile, bilateral and regional free trade agreements are compelling developing countries to approve more intellectual property treaties, such as Budapest, and more rigid clauses not yet completely accepted at the multilateral level. - Costa Rica's national legislation does not allow the patenting of genetically unmodified microorganisms. Notwithstanding, because of the lack of definition of "microorganism" in the Budapest Treaty and the consequent lack of distinction between "not genetically modified" and "genetically modified" microorganisms, it can be understood that the Treaty includes all types of microorganisms. - In Costa Rica, private entities have never been involved in the registry procedure of industrial property. According to Rule 2.1 of the Regulations of the Budapest Treaty, private entities are allowed to have the custody of microorganisms; therefore, now that Costa Rica was compelled to adhere to the Treaty our national law must be changed. - There has been a worldwide debate related to the economic, environmental and ethical impacts of the patenting of life forms. That debate seems to have been ignored with the imposition of the Budapest Treaty. - No member can unilaterally modify the Budapest Treaty. Every modification must be done through the Assembly and agreed to by all signatory countries of the Treaty. Therefore, any unilateral declaration made, for instance, by Costa Rica in order to clarify or redefine the scope of the Treaty does not have any validity. International treaties do not allow reservations or interpretive clauses. - What is worse, now that the US-DR-CAFTA has been approved, any modification of the subordinate treaties, i.e. Budapest and the UPOV Convention (1991 Act) will be much more complex. - The Office of the Ombudsperson concludes that the Budapest Treaty is not in line with the norms and ethical principles of Costa Rica. Therefore, it considers that civil society, the scientific community and the different congregations should have had a more broad discussion on this Treaty including its ethical, environmental, social, economic and legal implications. Unfortunately, this did not happen and the decision to vote the US-DR-CAFTA, with its obligation for Costa Rica to accede to the Budapest Treaty, at referendum was not taken with a generalized prior informed consent. - Accession to the Budapest Treaty has implications in the economic, legal and cultural fields and contravenes the human right to life, the human right to information and participation, and the human right to legal security. The original study in Spanish (October 2007) is available online at http://www.dhr.go.cr/descargas/CrDHR02.doc. The new English summary (July 2008) is available online at http://www.bilaterals.org/IMG/pdf/Budapest-CR-ENG.pdf GOING FURTHER (compiled by GRAIN) The World Intellectual Property Organisation runs the Budapest Treaty: http://www.wipo.int/treaties/en/registration/budapest/ A tally of which FTAs oblige developing countries to join Budapest is available from GRAIN: http://www.grain.org/rights/tripsplus.cfm?id=68 Various reports on struggles and debates over the Budapest Treaty, as pushed through these FTAs, are posted at bilaterals.org: http://www.bilaterals.org/recherche.php3?recherche=budapest Jagath Gunawardana, "Bio-piracy: A case where Jaffna microbe becomes US property", Daily Mirror, Colombo, 4 April 2008. http://www.dailymirror.lk/DM_BLOG/Sections/frmNewsDetailVie w.aspx?ARTID=10971 Silvia Rodríguez Cervantes, "CAFTA and the Budapest Treaty - The debate in Costa Rica", Seedling, GRAIN, January 2008. http://www.grain.org/seedling/?id=535 Office of the Ombudsperson of Costa Rica (Defensoría de los Habitantes): http://www.dhr.go.cr The Defensoría's original opinions on the proposed implementation of CAFTA in Costa Rica as regards plant variety protection, accession to UPOV and accession to Budapest (in Spanish): http://www.bilaterals.org/article.php3?id_article=11843