1. Intellectual Property Rights (IPRs) are not 'natural' rights, but 'statutory rights' -- rights created by the state through law to serve some public purpose (thus rights given can be taken away). The history of intellectual property can be traced to 7th century BC, in Ancient Greece, where cooks got a monopoly for one year to exploit their recipes; it was repudiated by Emperor Zeno in Rome (480 AD), and reinstituted in patent law enacted by the City State of Venice in 15th century, on condition that the patent is worked in the city state (for references and citations until 1990, see Chakravarthi Raghavan, 1990, 'Recolonization: GATT, Uruguay Round and Third World, Third World Network Penang/Zed Books London, pp 114-139; for Uruguay Round outcome and WTO, see Third World Economics issues from 1993)

2. Incidentally, other ancient civilizations (China, India, Africa, Arabia, and indigenous tribes in Americas) viewed knowledge as something to be freely imparted by those who possessed it, subject to a pre-cautionary caveat or taboo that the teacher must be sure of the fitness of the pupil (both to understand the knowledge imparted and use it wisely for general good) before imparting knowledge.

3. Till the WTO, the entire history of the IPR debates in every country has been one of a balancing of two competing "interests": the 'interest' of the State to reward innovation and creation and spread of knowledge through grant of a monopoly patent right to exploit that invention and prevent others from doing so without authorization, but for a limited period, conditioned on full disclosure (to enable others to use it for more innovations); and the 'public interest' and advancing the public welfare, whereby the state reserved to itself the right to grant IPRs under stipulated conditions (exploitation within the territory of the state and even 'importation' to encourage bringing in of technology not otherwise available within its territory), and 'compulsory liecensing', with compensation under some conditions and none at all in others, and other known remedies to guard against abuse of the monopoly.

4. The WTO, though professing to be pursuing the theories of 'free market' and 'free trade', in fact is based on advancing the neo- mercantilist interests of the powerful nations - US, Europe, Japan and Canada - and their corporations. Free Trade ideologues, like Prof. Jagdish Bhagwati at Colombia, have now come to view the TRIPS agreement as a 'trade-restrictive' and not 'trade-liberalizing one', while Prof Srinivasan at Princeton has argued it has no place in WTO. Even World Bank (Stiglitz's Wider lecture in 1998, and WDR 1998) have raised some questions now..

5. And nothing illustrates better the neo-mercantilist character of the US policies in these inter-connected areas, than the report (International Herald Tribune) of the US Central Intelligence Agency being involved in tracking activities of foreign corporations and their trade strategies, and trade strategies of foreign country -- all to help US corporations and enable US negotiators, armed with this knowledge, to prevail over trading partners.

6. There are also reports to the EU Parliament showing the cooperation of US and UK spy agencies, in tracking through their monitoring of cyber signals, all email cyber traffic and fax messages across the world.

7. These can even be seen as violation of TRIPS and the requirement of states to ensure protection for (undisclosed) "trade secrets" of enterprises. But the US will probably cite 'national security' to justify it, if challenged at the WTO, just as it does over Helms- Burton Law.

8. IPRs in patent legislations of all nation-states, and in the TRIPS agreement of the WTO, makes grant of a patent mandatory for most areas or fields of technology: but for 'inventions' to claim patent, they must be "NEW, INVOLVE AN INVENTIVE STEP AND ARE CAPABLE OF INDUSTRIAL APPLICATION." (Art 27.1 of TRIPS Agreement, emphasis added.) And 27.3 makes clear that plant variety protection need not be by patents, but can be by a sui generis system (which need not even be WIPO's UPOV). And while 'micro-organisms' have to be given patent protection, there seems to be no acceptable, scientific-legal consensus or even overwhelming majority view for a legal definition of micro-organisms or ones that can be 'isolated' in a stable form and 'filed' in the patent office!

   Mere improvements on existing 'inventions' are not patentable.

9. The TRIPS provisions are the only international norms, and the minimum. Each state can provide higher levels of protection. This is what has been achieved in the US in terms of patenting of 'genes'. As explained further below, it is not by a democratic process of Congressional legislation, but by a 5-4 majority interpretation of the Supreme Court.

10. All three tests in 8 above are separate and important 'tests' that those (state authorities) who grant patents can apply (and where the laws provide for scrutiny require patent offices to apply, though not all of them do so).

11. Patenting and grant of patents is not a 'science' issue of molecular biology, that plant breeders and scientists could be left to argue about, but one of patent law, trade theory and trade law, political economy, and social implications for society. Each society in fact has to determine for itself, and even globally.

12. The very nature of a 'statutory claim to right' requires that those who claim any such 'right' must prove every one of these steps mentioned in para 8. Patent law literature is quite clear that mere improvement of an existing state of knowledge, or something that any one versed in the state of art could do or could have done, would not warrant a "patent right", and such patents can be challenged, and in fact are. [See, Report of an Expert Group on Implementing TRIPS, Third World Network, 1998; Carlos Correa (forthcoming) "Intellectual Property Rights, the WTO and Developing Countries: The TRIPS Agreement and Policy Options"]

13. As mentioned in 9 above, the first patent in the field of genetic-engineering came by a decision of the US Supreme Court (not by a considered law of the US Congress setting out public policy), over-ruling the US patent office in the first instance and the US Appeals Court thereafter, both of which denied the patent application by US corporation General Electric, whose employee an Indian microbiologist, Ananda Mohan Chakrabarthy, had developed in 1971 a bacterium that could digest oil (I am not sure whether the particular bacterium has ever been put to use, to stand the test of capable of industrial application).

14. The US patent office rejected the patent application after several reviews, and its view was upheld by the Appeals Court; but the issue wended its way on to the U.S. Supreme Court which handed down a ruling in 1980, by 5-4 majority, that the patent was to be granted (Diamond v Chakrabarthi).

15. By the margin of one vote, the US Supreme Court handed over the US public commons to private corporations [For a legal discussion of the case and its implications, see Andrew Kimbrell (1993), 'The Human BodyShop', Harper, San Fransisco].

16. Thereafter, came the 1985 ruling of the US patent office that genetically engineered or altered plants are patentable, the 1987 grant of patents to all genetically engineered plants or animals -- and then to microbes, plants, animals, human cells, cell lines, and genes -- not only of plants and animals, but of cell lines of indigenous peoples around the world, often without their 'informed consent' (Kimbrell).

17. After the Supreme Court ruling, Chakrabarthy himself is quoted as having expressed surprise (cited by Kimbrell), confessing he had not 'invented' anything, but had merely "shuffled" genes from one organism into another!

18. As far as can be found, by search of patent claims and literature, no rpt no gene has been 'invented', only taken from the DNA or plasmid of one variety or species of plant, animals or humans, and "shuffled" into that of another.

19. And with the US Supreme court ruling in the Chakrabarthy case, and subsequent patent office decisions, came the bio-piracy by the TNCs -- expropriation of natural substances found in a Third World country, or of knowledge known in the community by oral tradition over centuries, isolating from the bio-resource some genetic material and patenting them in the US, Europe or Japan as "inventions". These are nothing more than 'discoveries' and 'improvements' on the state of art and knowledge already in public domain of the Third World country or community. But the US law has enabled these oral traditions, and indigenous knowledge of other nations and systems, to be "appropriated" and patented by its corporations by its patent law -- that recognizes only material published in 'scientific' journals or known to oral tradition in the United States, but not elsewhere. This is really a US statutory 'theft' of property of other nations.

20. The US Constitution prohibits slavery, and this has been interpreted as not allowing for patenting of humans (and human cloning), but a California ruling, upheld by the US Supreme Court, enables that material taken out of a human body (in a hospital for e.g.) and genes and cell-lines etc isolated from it, could be patented, without the consent of the person concerned or any rights to him!

21. As a result of the Chakrabarthi ruling and subsequent decisions of the US Patent Office, the Merck pharmaceutical company patented microbial samples from nine countries - including soil bacteria from a heather forest on Mount Kilimanjaro, a Mexican soil fungus useful in the manufacturing of male hormones, a fungus found in Namibian soil of potential use in treating manic depression, a soil bacterium in India that serves as an anti-fungal agent, and a Venezuelan soil bacterium patented for use in the production of antibiotics.

22. Merck is not alone. Pfizer and Bristol-Myers Squibb both have more bacteria and fungi holdings than Merck.... several Northern corporations, including WR Grace, have been granted more than 30 US patents on the neem tree of India - and not only on the tree, but also on the indigenous knowledge about its many uses.

23. The latest twist to the story is the US patent, granted to (Cromak Research Inc, and two Indian-born assignees resident in US) for karela and brinjal (Indian vegetable plants) and the jamun (a native tree berry-fruit) in respect of the anti-diabetic quality. The use of the juices of these are known to Indian Ayurveda (ancient medicine) and published in the Compendium of Indian Medicinal Plants and Treatise on Indian Medicinal Plants".

24. The campaign by NGOs and many governments of the South against such 'gene-patenting' and GEd or GMOd product trade, or concerns about public health, consumer benefit and welfare etc are issues of politics and political economy; and scientists can't claim any monopoly of wisdom or knowledge to decide these by claims to pursue pure 'science' and 'scientific knowledge' or 'scientific expertise' or claims that any technological advance is beneficial to human society and well-being.

25. There have been many legal writings challenging the validity of the US Supreme Court reasoning (in the Chakrabarthy case) for the grant of the patent in the field of genetic-engineering. But with the US as the dominant power (willing to use or threaten to use military might in defiance of international law to assert itself), and given the political fact of corporations (whose only duty, under the philosophy of Friedman and Hayak, is to make profits for share-holders), the US law, now adopted by Europe (with some slight modification due to the EU Parliament's views), is being sought to be made 'global law' through the WTO and its TRIPS (and the campaigns of genetic engineering firms.)

26. There are many patent law jurists (in the US and elsewhere) who suggest that -- because of the inherent difficulties involved in grant of patents for GEd products ('stability' and 'replicability' of same product or outcome through the process to create the same genetically engineered micro-organism by someone else equally well- versed in the art, a fundamental requisite of patent law concept), and because of cultural and religious problems relating to patenting of life and monopoly rights to patentee -- different societies may consider some other form of rewarding such 'innovation'.

27. Despite the seeming current dominance of the debate (and influence over legislation and administrations) by giant TNCs like Monsanto, probably the solution of some experts noted in 25 will ultimately emerge.

28. Even now, under the WTO/TRIPS, each country in exercising its national jurisdiction, can deny patents on the ground that the three tests required under Art. 27.1 of TRIPS (new, involve an inventive step, and capable of industrial application) are not satisfied. But a denial may ultimately wend its way to the WTO and its dispute settlement where 3 panelists and may be a 3-member appellate body, may decide whether a country refusing a patent had acted within 27.1 or not.

29. In any event, while country A can deny patent for such GM or GEd product or process on any of the three grounds (including say, known use of the plant or characteristic in its folklore or native indigenous systems of medicine etc), the present TRIPS does not prevent say a foreign country granting a patent, and getting exclusive monopoly rights everywhere.

30. Even after a patent is granted, a country can prevent its use or monopoly use (say in a medicine or a seed) on various grounds - - including health, or ecological unsoundness.

31. Hence the recommendation from Third World experts (trade and patent) to Third World countries to deny gene patents etc, using the permitted exception (of Art. 27 of TRIPS), namely, ordre public (italics in original) in the French meaning of the term, which is an absolute national right, rather than get involved in litigation over refusal to allow imports or permit production and use inside a country.

32. We were probably among the very first to warn against, and question and challenge the bringing into GATT, through the subterfuge of the phrase 'trade-related', areas of economic activity not involving actual exchange of goods across international frontiers, and in particular the bringing in of Intellectual Property issues and Investment rights issues (9). We were then in a minority. Now even known free-trade ideologues like US academics Prof. Jagdish Bhagwati and Prof. Srinivasan, question the inclusion of TRIPS into the WTO, viewing it as trade- restrictive rather than trade-liberalizing.

33. After the initial euphoria about benefits of GM seeds and their contribution to agriculture -- an euphoria, it now appears, based mostly on the 'research' by the TNCs and their scientist-employees or funded by them (inside the TNC or in academic institutions) and a well-financed advertisement and media campaign -- there is now some serious questions and challenges.

34. We have posted separately to this list-server, an article on the recent symposium on GE issues at the recent annual meeting of the Ecological Society of America, where some academics and scientists presented scientific papers, and have raised important questions.

Chakravarthi Raghavan

Chakravarthi Raghavan
South-North Development Monitor SUNS
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Email:suns@igc.org

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