Genetic Engineering,

Intellectual Property Rights

&
Small Scale Farmers
 Contents (James)

1. History – The Rise and Rise of GE

2. What is Genetic Engineering (GE)?

3. Agribusiness

4. Intellectual Property Rights

 Contents (Amaya)

1. Arguments For & Against GE

2. The Impact of GE on Small scale Farmers

3. Domestic GE Policies in Developing Countries

4. GE in South Africa – Case Studies

 History – The Rise and Rise of GE

http://www.pub.ac.za/resources/teach.html

 In 1973, researchers lifted genetic materials from one organism's DNA

and copied them into another's to produce insulin.
 In the 1980’s, testing of biotechnology-derived foods began.
 In 1994, the FlavrSavr® tomato was introduced.
 By 1997, 18 biotechnology derived crops had been approved by the
U.S. government
 Biotechnology continues to evolve and new varieties are currently
being produced using transgenic techniques. http://www.dupont.com/biotech
 What is

Genetic

Engineering

(GE)?

Colorado State University

http://www.ornl.gov/sci/techresources/Human_Genome/publicat/primer2001/1.shtml

Genetic Engineering
 What is GE
(I)

http://www.pub.ac.za/resources/teach.html
What is GE (II)
 GE in Agriculture (& Pharming)

Crop Types:
- Herbicide Resistant / Tolerant Crops.
- Bio-pesticide Producing Crops.
- Disease Resistant Crops.
- Environmentally Adaptive and Tolerant Crops.

“Plants as “green” factories

Plants are particularly suitable for the synthesis of complex chemical

molecules and hence for the production of high-performance specialties.
The advantage of plants is their low-cost raw materials – carbon dioxide,
water and sunlight – and easy cultivation in tilled soil. Potential applications
range from special fatty acids for industrial applications, to biopolymers, to
vitamin production in plants.”
http://www.corporate.basf.com/en/produkte/biotech/plantscience/pflanzenalsfabrik/?id=OXN_I6mYlbcp35U
 ICGEB (EU Body) GE Crop Statistics
The International Centre for Genetic Engineering and Biotechnology

Global Area of Transgenic Crops by Year 1996 1997 1998 1999 2000 2001 2002 2003

million hectares 1.7 11.0 27.8 39.9 44.2 52.6 58.7 67.7

Global Area of Transgenic Crops in 2003 by South

USA Argentina Canada Brazil China Others *
Country Africa
million hectares 42.8 13.9 4.4 3.0 2.8 0.4 3.8
percentage (%) 63% 21% 6% 4% 4% 1% 6%

percentage increase from 2002 (%) +10% +3% +26% - +33% +33% +533%
*Australia, India, Romania, Uruguay, Spain, Mexico, Philippines, Colombia, Bulgaria, Honduras, Germany, Indonesia.

Global Area of Transgenic Crops in 2003 by Crop Soybean Maize Cotton Canola Others

million hectares 41.4 15.5 7.2 3.6 <0.1

percentage (%) 61% 23% 11% 5% <0.1%

percentage increase from 2002 (%) +13% +25% +20% +20% -

Herbicide Insect Bt/Herbicide

Global Area of Transgenic Crops in 2003 by Trait Others
tolerance resistance tolerance
million hectares 49.7 12.2 5.8 <0.1
percentage (%) 73% 18% 9% <0.1
percentage increase from 2002 (%) +12% +20% +32% -

GMO's background (*) data from: James, C. 2003. Global Status of Commercialized Crop: 2003. ISAAA: Ithaca, NY.
 % Patents (1998)
Pharmaci,
26 DuPont,
Syngenta, Dow,
World
Aventis &
Others Agribusiness
(Oligopoly)
74

An oligopoly is a market % Pesticide Sales (1998)

form in which a market is
dominated by a small Sygenta,
number of sellers 30 Monsanto,
(oligopolists). Aventis,
Oligopolistic markets are
DuPont &
characterised by
BASF
interactivity. The decisions Others
of one firm influence, and
are influenced by, the
decisions of other firms. 70

http://en.wikipedia.org
Source: Bowring, 2003
 Monsanto

http://www.monsanto.com
 Delta and Pine Land, etc
http://www.corporate.basf.com
http://en.sanofi-aventis.com
http://www.deltaandpine.com
http://www.syngenta.com
http://www1.dupont.com
http://www.pioneer.com
“Biotechnology is one of the most promising future
technologies of the 21st century. BASF is looking for
competitive new technologies and is strongly
committed to this dynamic area. We want to take full
advantage of the great economic potential of biotec
hnology.”
http://www.corporate.basf.com/en/produkte/biotech/?id=OXN_I6mYlbcp35U
 Intellectual Property Rights
Document no From Title Date
IP/C/W/438 India, Brazil, and others The relationship between the TRIPS Agreement and the 10 December 2004
Convention on Biological Diversity (CBD) and the
protection of traditional knowledge — elements of the
obligation to disclose evidence of prior informed consent
http://www.wto.org under the relevant national regime

Intellectual Property IP/C/W/434 US Article 27.3(b), relationship between the TRIPS

agreement and the CBD, and the protection of traditional
26 November 2004

Rights (IPR’s) knowledge and folklore

Rights given to people IP/C/W/433 Switzerland Further observations by Switzerland on its proposals 25 November 2004
regarding the declaration of the source of genetic
over the creations of their resources and traditional knowledge in patent
minds. applications
IP/C/W/429, with Rev.1, Brazil, India and others Elements of the Obligation to Disclose the Source and 21 September 2004
Add.1, Add.2, and Add.3 Country of Origin of Biological Resources and/or to 10 February 2005
Traditional Knowledge used in an Invention
IP/C/W/423 Switzerland Additional Comments By Switzerland on its Proposal 26 June 2003
Trade Related Submitted to WIPO Regarding the Declaration of Source
Intellectual Property of Genetic Resources and Traditional Knowledge in
Patent Applications
Rights (TRIP’s) IP/C/W/420 and Add. 1 India, Brazil, and others The Relationship between the TRIPS Agreement and the 2 March 2004
CBD: Checklist of Issues
IP/C/W/404 African group Taking Forward the Review of Article 27.3(b) of the TRIPS 26 June 2003
Agreement
‘Patentable inventions’ IP/C/W/403 India, Brazil, and others The Relationship between the TRIPS Agreement and the 24 June 2003
must be new, involve an CBD and the Protection of Traditional knowledge
IP/C/W/400/ Switzerland Article 27.3(b), the Relationship between the TRIPS 18 June 2003
inventive step (or be non- Agreement and the CBD, and the Protection of Traditional
obvious) and be capable Knowledge
IP/C/W/393 US Access to Genetic Resources Regime of the US National 28 January 2003
of industrial application Parks
(or be useful). Article 27 IP/C/W/383 EC Review of Article 27.3(b) of the TRIPS Agreement, and 17 October 2002
the Relationship between the TRIPS Agreement and the
also lists inventions CBD and the Protection of Traditional Knowledge and
which governments do Folklore — “A Concept Paper”
IP/C/W/356 and Add. 1 India, Brazil, and others The Relationship between the TRIPS Agreement and the 24 June 2002
not have to make eligible CBD and the Protection of Traditional Knowledge
for patent protection. IP/C/W/341 US Technology Transfer Practices of the US National Cancer 25 March 2002
Institute’s Departmental Therapeutics Programme
 Intellectual Property Rights
TRIP’s Agreement (Article 27.3(b)) Currently Under Review:

Allows governments to exclude some kinds of inventions from patenting, i.e.

plants, animals and “essentially” biological processes (but micro-organisms, and
non-biological and microbiological processes have to be eligible for patents).
However, plant varieties have to be eligible for protection either through patent
http://www.wto.org
protection or a system created specifically for the purpose (“sui generis”), or a
combination of the two. For example, some countries have enacted a plant
varieties protection law based on a model of the International Union for the
Protection of New Varieties of Plants (UPOV).

The Cartagena Protocol on Biosafety (2000) is an international agreement on biosafety, as a

supplement to the Convention on Biological Diversity.
Products from new technologies must be based on the precautionary principle and allow developing
nations to balance public health against economic benefits. It will for example let countries ban imports of
a genetically modified product if they feel there is not enough scientific evidence that the product is safe
and requires exporters to label shipments containing genetically altered commodities such as corn or
cotton.

The Doha Declaration (2001)

WTO Should look at:

• The relationship between the TRIPS Agreement and the UN Convention on Biological Diversity.
• The protection of traditional knowledge and folklore.
• Must take development issues fully into account.
 Intellectual Property Rights

The International Union for the Protection of New Varieties of Plants

(UPOV) is an intergovernmental organization with headquarters in
Geneva (Switzerland).

UPOV was established by the International Convention for the

Protection of New Varieties of Plants. The Convention was adopted
in Paris in 1961 and it was revised in 1972, 1978 and 1991. The
objective of the Convention is the protection of new varieties of
plants by an intellectual property right.

http://www.upov.int/
 International Organisations
http://www.biodiv.org/convention
(1992 – Rio - 150 Countries)The
Convention establishes three main
goals:
-The conservation of biological
diversity.
-The sustainable use of its
components.
-The fair and equitable sharing of the
benefits from the use of genetic
resources.

FAO-BioDeC: a database meant to gather, store, organize and disseminate,

updated baseline information on the state-of-the-art of crop biotechnology
products and techniques, which are in use, or in the pipeline in developing
countries.
http://www.fao.org/biotech/inventory_admin/dep/default.asp
 The USDA, APHIS, EPA & FDA

http://www.fda.gov/ http://www.epa.gov

Six Step Process:

1. USDA Notification Process (Greenhouse Trial)
2. USDA Petition for non-regulated status (10 Month Review) (PP)
3. EPA - Experimental Use Permit (especially for biopesticides) (PP)
4. EPA Review - Food Tolerance Determination (PP)
5. EPA Product Registration - 18 Month data review (PP)
6. FDA Review – Pre Market review of Biotech derived crop (3 years)

United States Department of Agriculture

Animal and Plant Health Inspection Service

Plant Protection and Quarantine

http://www.aphis.usda.gov/
 Arguments

Con’s
Pro’s
 Ethics
☺ The solution for hunger  Patents of life forms
☺ Safe for the environment  Over natural barriers
☺ Less chemicals  Agri-business oligopoly
☺ Use marginal land  Hunger is not addressed
☺ Maintain biodiversity through increased
productivity
☺ Germplasm banks
 Health impact
☺ Incentives to innovation
 Allergens
(patents)
 Decrease nutritional diet
☺ Free market regulates
supply/demand  Environmental risks
 Focused on large-scale
farmers
 Environmental Risks

• Loss of biodiversity (monoculture)

• Increased herbicides use: water & soil pollution
• Genetic contamination
– Horizontal gene transfer (unrelated species)
– Gene escape (cross-pollination)
• Of landraces
• Disease resistance in crops (Bt)
• Super-weeds (herbicides)
• Pest resistance (pesticides)
 Impact on Small - Scale Farmers (I)
• Unequal power (Agri-Business Oligopoly)

– Decision-making

– Price-fixing arrangements

– Where is the consumers right to decide what food and

technology they want?

• Bio-piracy / Bio-Prospecting:

– Steal indigenous knowledge and genetic material

– Displace many farmers in developing countries from

international markets (coconut oil, flavour cocoa…)
Impact On Small-scale Farmers (II)

• Sterile crops: 1.4 billion people dependent on

farmer-saved seeds
• Landraces are not uniform: cannot be registered
through UPOV
• Research Focus: Agricultural research is directed at
High-external-inputs farmers.
 Domestic Policies In Developing
Countries

Possible Strategies
• Defining the criteria of patentability by defining the term
‘novel’
– Mere discoveries of existing variations in nature are neither
‘novel’ or an ‘invention’ – unpatentable
• Community resources, held in public domain – unpatentable
• Protecting public benefit (food security, rights…)
GMO Application Process in
South Africa

http://www.pub.ac.za/resources/teach.html
 Biowatch (South Africa)
2005
18/03/2005 - Biowatch applies for leave to appeal High Court cost award to Monsanto
09/03/2005 - SACU countries don’t include controversial IPR clauses in EFTA agreement
23/02/2005 - Landmark court judgement on access to information about GMO’s.
17/02/2005 - EIA’s should be done on all GMO’s before they are released
20/01/2005 - Monsanto Guilty of Bribery
2004
22/12/2004 - Appeal Board reveals State negligence on genetic modification
19/11/2004 - NGOs demand scrapping of corporate-friendly GMO Act
04/11/2004 - Patently unfair: IPR’s undermine health and food security for the south
23/08/2004 - Appeal Board hearing postponed, Syngenta agrees to stop distributing GM seed.
20/08/2004 - SA judge orders Swiss company to stop distributing GM maize seed.
28/07/2004 - Civil Society Organisations Object to the Importation of GM Wheat.
27/07/2004 - SA Biosafety regulators in bed with industry on GM potatoes?
18/05/2004 - Keep genetically engineered wheat out of South Africa
2003
16/04/2003 - Parliamentary Conference promises to improve the GMO Act.
15/04/2003 - Parliamentary Committee GMO's seeks greater transparency from government.
2002
04/11/2002 - Biowatch calls for rejection of applications brought by Syngenta for Bt 11 maize.
25/09/2002 - Biowatch files papers against Minister of Agriculture.
- Controversial GMO Act comes under scrutiny.
- Future of GM corn in question given recent decision by General Mills to go organic.
- GMO White Maize (Decision on Staple Food).
http://www.biowatch.org.za/
 GE in South Africa

• An estimated 300.000 ha is used to grow GE

crops, including - white and yellow maize,
soybean and cotton.
• GE crops In SA, 2004:

– 80% of the Cotton

– 35% of the Maize (For Human Consumption)

– 30% of the Soybean

 GE Crops in South Africa - 2004

Source: BioWatch South Africa, 2004

 Bt Cotton in Makhathini

• High dependency on support by S.A.

Department of Agriculture, Monsanto,
Vunisa Cotton and Land Bank.
• Credit => Debt trap

• Planting GE cotton without the correct

information and support services
Conclusion
sion