Intellectual Property Programme

Disclosure of Origin and Access and Benefit Sharing: The special case of seeds for food and agriculture

by Walter SMOLDERS (Former head of patents in seeds at Novartis and Sygenta and former Chairman of the Intellectual Property Committee of the International Seed Federation)

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The seeds world: status and trends in a nutshell

I can summarize the current status and trends in 12 main points

1. New plant varieties are not built up from scratch, but are developed from existing varieties that themselves have been obtained from existing varieties. Several of the most performing varieties employed by the seed industry for development of new varieties have been developed by an alliance of international agricultural centers (such as the International Maize and Wheat Improvement Centre, CIMMYT, and the International Rice Research Centre, IRRI), coordinated by the Consultative Group on International Agricultural Research (CGIAR)

2. Patents are not appropriate for protection of plant varieties; the UPOV system provides a substantially more balanced system for the protection of plant varieties, because of the breeder’s exception principle.

3. The Convention on Biological Diversity is not a suitable Access and Benefit Sharing (ABS) system for use of plant genetic resources in food and agriculture. Instead, the International Treaty on Plant Genetic Resources for Food and Agricultural is the sui generis system of choice to achieve the objectives of ABS, sustainable use of plant genetic resources for food and agriculture and the preservation of these resources. The Treaty does not require prior informed consent. Regretfully, several important species, such as soybean, cotton and tomato are not covered by the “List of crops covered under the multilateral system” (Annex I of the Treaty)

4. The seed industry (the International Seed Federation) has no problems with disclosure of origin of plant genetic resources used in the development of new plant varieties. This was stated in a Position Paper of ISF on “Disclosure of Origin in Intellectual Property Protection Applications”, 2003, which was unanimously endorsed at the ISF World Congress in Bangalore, 2003. Seed companies can not run the risk of using material they have not legally accessed – it may cost them a fortune – and breeders have to write down in their notebooks what material they used. Disclosure of origin (in the sense of source) is not an extra burden for seed companies. It does also not reveal trade secrets.

5. The Biotechnology Industry Organization (BIO; US), which is primarily dominated by pharma industry, is against mandatory Disclosure of Origin at present. Most if not all known cases of “biopiracy” have little commercial value. Why, then, should BIO come up with an item that is not important for them and could impair their negotiation position for more important issues?

6. Due to the different positions of ISF and BIO the International Chamber of Commerce (ICC) was unable to publish a common position on disclosure of origin and prior informed consent.

7. Pressures for Intellectual Property Rights (IPRs) to become stronger, as research costs increase and technology gets more sophisticated.

8. The two biggest companies, Pioneer (seed sales US$ 2,600m in 2004) and Monsanto (seed sales US$ 2,803m in 2004) are not happy with the level of intellectual property protection given for plant varieties under the UPOV Convention. They strive for a delayed access to commercially available for breeding purposes, thereby consolidating their position. Their ultimate goal is one intellectual property system for plant varieties, the patent system. The US Administration seems to pave the way for that by having this in their negotiation package for bilateral agreements.

9. A weak point of the UPOV Convention is that it does not provide rules for preservation of plant varieties at the end of the period of protection. Most seed companies are presumably happy with that situation. Indeed, UPOV does not require release of protected varieties. Inbred lines, the crown jewels of seed companies commercializing hybrid crops, often do not become available after expiry of the protection under UPOV (this is different for patents). The practice should be that such plant material is deposited in well run gene banks. This points, however, to the following question: who should finance such gene banks.

10. The maintenance, production and storage of seeds are cost factors. Seed companies can and must achieve cost reduction by a reduction of the number of plant varieties commercialized per plant species. Only the most profitable seed varieties are kept on the market and the price of these plant varieties will increase. Depending on the availability of the discarded material, this trend can be either an opportunity for smaller seed companies or – in the long run – a disaster because of lost biodiversity.

11. Monetary benefits, arising from implementation of the CBD or the Treaty will never suffice to meet the needs of developing countries. Capacity building is important and more resources are needed, for example for training and equipment.

12 In 2006, it is the 10th anniversary of the Global Plan of Action for the Conservation and Sustainable Utilization of Plant Genetic Resources for Food and Agriculture and the Leipzig Declaration on Conservation and Sustainable Utilization of Plant Genetic Resources for Food and Agriculture agreed upon in Leipzig, Germany 17-23 June 1996 (ref.8). We should use this anniversary to reactivate the Plan and to remind States of what they committed to.