[GRAIN] How do you read Decision 486?

[Margarita Florez] The key point is that this law takes the subregion 'beyond TRIPS', because it introduces the patenting of microorganisms when TRIPS is under review. As I see it, TRIPS prohibits members from excluding microorganisms from their patent laws. It does not oblige you to suddenly declare that microorganisms are patentable. Even less so when this provision is under active review, be it through the review of Article 27.3(b) or the review of the entire TRIPS Agreement.

[GRAIN] Decision 486 links the patentability of microorganisms to some kind of expectation that the review of 27.3(b) might result in a different ruling in this regard. What do you make of that?

[MF] I think this formulation has almost no effect. Microorganisms have now been declared patentable irrespective of a review of this very provision in TRIPS. How can our governments implement this obligation from TRIPS and at the same time anticipate a change in TRIPS that would undo the same obligation? What this amounts to is the Andean Community deciding to ignore the opportunity of the review. They've cut off the discussion by falling in line with 'part one' of 27.3(b). That's what I mean by 'beyond TRIPS': our governments have accepted less than what was available to them.

[GRAIN] So you don't see the Decision as an approach which tries to reconcile different realities: TRIPS as it stands, the review of 27.3(b) and the CBD?

[MF] No. In reality, Decision 486 was pushed on us by the United States and is entirely shaped in their interests. You have to bear in mind that the kind of pressure that the US is exerting on us -- in Ecuador, Colombia, throughout the subregion -- is tremendous these days. Just look at the '2000 Special 301 Report' of the US Trade Representative Charlene Barshefsky. Decision 486 was not openly negotiated. There was no public debate. It is the US interfering, in one of so many profound and destabilising ways, in our laws and lives. We had options under TRIPS, even if they were restricted ones. Now? No more! But I want to stress: what makes me nervous about this law is the blatant contempt for multilateralism that it embodies. It was pushed on us by one country and pays no more than lip service to the rights we contracted under several international treaties, namely TRIPS and CBD.

[GRAIN] If it's to be viewed primarily as a US concoction, why does it distort patent law, so to speak, by carrying provisions on peoples' prior informed consent, contracts on access to genetic resources, biosafety regulations and rights of local communities over traditional knowledge? The US doesn't normally advocate the introduction of these kinds of things into patent law. In fact, they vehemently resist it at WTO.

[MF] It's nonsense. The parties to the Convention on Biodiversity, the developing countries in the TRIPS Council, even the United Nations Commission on Human Rights have all recognised the incompatibility between TRIPS and CBD. The Andean Community text simply embodies this problem. All the elements of what we would consider human rights in Decision 486 are illusions -- because the incompatibilities are not resolved. What matters, as a result, are the intellectual property rights that the new law affords. Look at the text carefully. The provisions on community rights, access, traditional knowledge and so forth are extremely weak! They're empty. On paper, yes, Decision 486 talks about 'the obligations assumed by the Member States under the CBD'. But in practice and in reality, they don't have the same legal weight as the IPRs provided for in the same regime. The reference to CBD is just a hollow carry-over from the principles we fought to get respected by Decision 344.

[GRAIN] Okay, let's compare. Decision 344 established that animals, naturally-occurring material, human genetic material and inventions related to essential medicines are not patentable. Decision 486 now says that microorganisms are patentable, plants are not (in addition to animals), and is silent on essential medicines and human genetic material. How should we interpret this?

[MF] In 1993, Decision 344 introduced into our countries the possibility of patenting plants. This was accompanied by Decision 345 which set up a separate IPR system on plant varieties, modelled after the UPOV Convention of 1991. What we, civil society groups, did at that time was fight hard for yet another regulation to implement CBD, so that the rights of the communities would be not be undermined by these new IPRs. And as a result, we got our access regime, Decision 391. Now what happens? In comes enormous pressure on our trade officials, with foreign companies saying, 'Look, our investments require that you guarantee us legal protection over other materials. Give us microorganisms.' Of course! If anything is commercially underexplored in the field of biodiversity it's microorganisms. So the trade-off is that we're now allowed to exclude plants from our patent system, but we have to grant the transnationals rights to microorganisms. This is a very uneven deal! Microorganisms represent a huge area of research and therefore IPR and profits for these companies. I'm convinced of that.

[GRAIN] So what can be done?

[MF] We have to work harder to secure the proper rights of local communities over their resources and traditional knowledge. Getting 'special effects' written into patent laws is no solution. It's superficial. And illusory. And therefore dangerous. As long as traditional knowledge and the rights of countries of origin don't have the same weight as IPR, the situation remains completely inequitable.

* Margarita Florez Alonso is a Colombian lawyer, specialised in biodiversity law and indigenous peoples' rights. She is currently finalising a study to be co-published by the Gaia Foundation and GRAIN on how regional integration agreements, bilateral investment treaties and unilateral mechanisms determine intellectual property regimes in Latin America. She can be reached at mailto:debate@multi.net.co.

GOING FURTHER

'Decisión 486: Régimen Común sobre Propiedad Industrial', Comisión de la Comunidad Andina, Lima, 14 de setiembre 2000. (Texto completo.) http://www.comunidadandina.org/normativa/dec/D486.htm

'Andean Community approves new common intellectual property regime', Press Release, Andean Community General Secretariat, Lima, 15 September 2000. http://www.comunidadandina.org/english/press/np15-9-00.htm

United States Trade Representative, '2000 Special 301 Report', USTR, Washington DC, May 2000. http://www.ustr.gov/html/special.html

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