Article 27 of TRIPS Agreement: South Asian Perspective. -Yog Upadhyay

Seldom meet together, even for merriment and diversion, but the conversation ends in conspiracy against the public or in some diversion to raise price.
Adam Smith

By the phrases mentioned above, Adam Smith was warning the governments to be vigilant to protect the public interest from the private business. Now in the stage of globalisation and privatisation that statement of Adam Smith seems to be materialised, as various thinkers has started to name TRIPS as nightmare and WTO and WIPO as two gambling house due its provision on biodiversity and natural resources. The Biodiversity has become an issue of high priority and highly debated issue since last many years due to the scientific and industrial development in recent centuries. The negotiation of TRIPS agreement with WTO, as a result of Uruguay Round negotiation has made it very crucial and matter of high importance to all developed, developing and least developed countries. This short paper will try to analyse the position and interest of South Asian Countries with special reference to Least Developed Countries in the matter of Patenting Biodiversity i.e. plant and life forms.

The Bio-diversity issue in the context of globalisation starts from Article 27 of the TRIPS agreement, which has been very controversial issue in these days. The Article 27 reads as following;

Patentable Subject Matter

1. Subject to the provisions of paragraphs 2 and 3, patents shall be available for any inventions, whether products or processes, in all fields of technology, provided that they are new, involve an inventive step and are capable of industrial application. Subject to paragraph 4 of Article 65, paragraph 8 of Article 70 and paragraph 3 of this Article, patents shall be available and patent rights enjoyable without discrimination as to the place of invention, the field of technology and whether products are imported or locally produced.

2. Members may exclude from patentability inventions, the prevention within their territory of the commercial exploitation of which is necessary to protect ordre public or morality, including to protect human, animal or plant life or health or to avoid serious prejudice to the environment, provided that such exclusion is not made merely because the exploitation is prohibited by their law.

3. Members may also exclude from patentability:

(a) diagnostic, therapeutic and surgical methods for the treatment of humans or animals;

(b) plants and animals other than micro-organisms, and essentially biological processes for the production of plants or animals other than non-biological and microbiological processes. However, Members shall provide for the protection of plant varieties either by patents or by an effective sui generis system or by any combination thereof. The provisions of this subparagraph shall be reviewed four years after the date of entry into force of the WTO Agreement.

Patenting Life form and Plant Varieties: A compulsion
According to the abovementioned provision of Article 27 of the TRIPS agreement, to have a legal infrastructure to Patent Life forms including plant is a compulsory obligation provided plant varieties are protected by effective sui generis system and provided there is exemption given by Doha Declaration in case of Least Developed Countries . There are two different opinions in the world community about patenting life form and plant varieties. The developed countries having lots of technology and scientific and industrial development says that patenting life form and plant varieties will foster industrial development and encourage scientists and researcher for new innovation for the benefit of whole world community which argument seems very reasonable and true in their point of view. In other hand the developing and least developed countries voices that this is not right time to implement patent regime in all sector as developed countries like USA and Japan has very recently only introduced patent regime in important sector like agriculture and pharmaceutical product .

There is no any reason to doubt on that having a strong patent regime will help the industrial and scientific development but the real point is whether it is conducive to the win-win policy as adopted by the concept of new globalisation and economic order. Nowadays developing and least developed countries are voicing that this is not right time to implement patent regime, as patent regime now will encourage bio-piracy due to lack of technical capacity and other infrastructure with them .

Article 27 of the TRIPS agreement in itself has provided some condition to exclude patentiability of the products especially for the reason of public health, ordre-public and public morality . As the least Developed Countries having no any legal framework and technical capacity to implement article 27 of the Trips agreement, can exclude some matters from patentiability which can be barrier to their technological and economic development but such exclusion in their respective country does not protect their interest at all as exclusion from patentability of certain matter do not exclude the same from patentability in other region or country . So there should be no hesitation to say that existing article 27 of the TRIPS agreement is not sufficient to protect the interest of least developed countries.

Least Developed Country's perspective.

While talking about the Least Developed and Developing Country perspective of the Intellectual property protection, one should also not forget about its impact to the least developed countries where people lives in less than US$ 1 for a day. The one and most important impact is predicted to be price hike in medical and pharmaceutical product including life saving medicines and poor farmer's access to seeds is also seems to be problem. The negotiation round as mandated by the Uruguay Round agreement of WTO started on 1999-2000 had basically three major proposal from the side of developing countries viz. extending moratorium on non-violation, Establishing a multilateral system to recognize geographical wines and spirits, exclusion of certain biotechnological invention for patenting . Those issues raised by developing countries in the negotiation round are the common interest of least developed countries also as these effects to them also. To be precise and very forward, the Interest of Least developed Countries can be discussed as following.

a) Access to Medicine.
b) Access to Seed saving.
c) Protection of Bio-diversity and natural resources and getting befit thereof.
d) Effective Sui Generis System.

a) Access to Medicine;
It is almost proved and well accepted that implementing patent regime under Article 27 of the TRIPS agreement can cause price hike in medical product including life saving medicine . Furthermore, various studies done in developing and least Developed Countries has revealed that even the developing countries are not able to provide good access of health though they don't have patent regime over these sectors . So this position of developing country can give us a picture of the condition when they implement patent regime over pharmaceutical and agriculture product in their legal system. Though Least Developed Countries have an exemption of not implementing patent over Pharmaceutical product until January 2016, nobody can hope that Least Developed Countries can even reach to the existing state of developing countries within this 14 years of time keeping in view of their pace of economic, industrial and technological development. Though Doha Declaration says that Least Developed Countries can request for further extension of transitional period to implement, will it be very easy to the least developed countries in general to request for more period to implement patent regime on pharmaceutical and medical product?. There is one another important issue i.e. most of the least developed country's health service is based upon the medical and pharmaceutical industry of developed and developing countries who already do have patent regime over those sector in these days. In such a condition will the exemption given by Doha Declaration be able to help Least Developed Countries to give good access to medicine to their poor people? Obliviously not. If so, is not it the time to think about the effective implementation of Doha Declaration on Least Developed Countries?

b) Access to seed saving.
The agriculture of Least Developed Countries and even of Developing countries is not industrialised. In other word, agriculture is not an industry in these countries. Poor farmers of villages of Least Developed and even of the developed countries practice traditional farming on which they save seeds for another year also. Furthermore, genetic engineering is also not so popular and is also not so much developed in developing and Least Developed Countries. So saving seed for next year is the only option to the poor farmers of lease Developed and even of the developing countries. As there is an ongoing pressure to accept UPOV as the effective sui generis system, which do not recognize the right of the farmer to save seed. This matter will be discussed later in this article.

c) Protection of Natural Resources and Bio-diversity and getting benefit thereof.
Bio-diversity and Natural Resources has been a very major issue since many years. Registration of patent over the genes of various plants of the nature has been the most disputed issues since last many decades. Registration of patent on more than 30 genes of NEEM plant can be taken an example of conflict of interest between developed countries and developing and least Developed countries.

Some provision of Convention of Biological Diversity and TRIPS agreement contrasting with each other . It is also being said that TRIPS is intense negotiation and compromise between different sets of interests . Article 27 (3)(b) of the TRIPS agreement has given some exception under which implementation of patent regime can be denied for the interest of public order health and others. Natural resources, Traditional and indigenous knowledge and biological diversity of one country cannot be protected just by not implementing patent regime over them in that specific country. Ownership of patent right over more than 30 genes of NEEM plant which is used as medicine for treatment of different diseases in south Asian and various other countries since a very long time and even an attempt of getting patent right over Indian Basmati Rice by some MNCs can be taken as an example of hammering on the interest of least developed countries under Article 27 of the TRPS agreement .

d) Effective Sui Generis System.
Article 27.3(b), which has enabled the government to protect the plant varieties under effective sui generis system, is perhaps the most controversial clause of the WTO agreement . The controversy is in one hand it allows to exclude patent protection on plant and essentially biological process for the production of plant and animal under effective Sui Generis System and in the other it has not defined what the sui generis System is and what can be the effective sui generis system. Defining what the effective sui generis system is has also been a matter of conflict of interest in these days . Similarly there is a proposal to accept UPOV as the effective sui generis system under consideration and discussion. Most of the developed countries are giving lots of pressure in WTO to accept UPOV as effective sui generis system but developing and least developed countries are lobbing against that. Presentation of a different proposal named CoFAB (Convention on Farmer's and Breeders Right) by the government of India can be taken as an example of this conflicting interest between developed, least developing and least developed countries.

Article 27, DOHA Declaration and Least Developed Countries.

As mentioned earlier WTO Ministerial conference held on November 9-21 at Doha, Qatar, has made a significant declaration in favour of Least Developed Countries in the matter of pharmaceutical and medical product to give the access to the medicine to the poor people of Least Developed Countries. This declaration seems to have been in conformity with the section B (vii) of part 1 of Punta del Este Ministerial Declaration . Furthermore Doha Ministerial Declaration can be taken as an admittance of the need of least developed countries to participate in world trading system effectively. This declaration though it is related only with medical and pharmaceutical product, can be taken as a call for the justice to Least Developed Countries in world trading system .

Is TRIPS Nightmare?

Prof. Raj Bhala, Associate Dean, George Washington University says that TRIPS agreement is almost nightmare for almost everyone . Intellectual property can be the backbone of the development in every nation but its protection and implementation as the developed countries has incorporated in TRIPS agreement really needs a very strong infrastructure. To the poor people of the least developed and even for the developed countries where most of the people are illiterate, statement of Prof. Bhala can be very true remark . Due to lack of technical capacity and infrastructure, TRIPS really seems to be a frightening and terrifying tools to the least developed countries.

It is doubtlessly accepted that strong patent regime ensures the technological and economic development as well by encouraging the inventors for more invention for the industrial application. It is also well accepted that implementation of such a strong patent regime needs very high level of economic, industrial and legal infrastructure. The various research reports has also revealed that implementing strong patent regime in a very early stage of industrialisation and poverty alleviation gives negative impact to the industrial development and poverty alleviation process.

In the same context TRIPS agreement seems to give negative impact to the least developed countries in case of seed saving right of the farmer, biodiversity issues and even with the access to health service and medicine. The WTO Ministerial Declaration dated 14th November 2001, Doha Qatar can be taken as a proof of the fact that TRIPS agreement do have negative effect to the Least Developed Countries. In this stage of globalisation to refrain from implementing TRIPS agreement obviously means being alone from the world community, which seems very impossible. So Least Developed Countries should be very cautious to implement TRIPS agreement so that they can minimise the possible negative effect of TRIPS agreement to their pace of industrial, technological and industrial development and they can get the benefit thereof. As Least Developed countries do have facility to be exempted from the implementation of TRIPS agreement in the matter of medical and pharmaceutical product, which is the major sector of possible negative impact, they should voice to extend this period of time until they reaches to the existing state of developed countries in case of access to health. In case of farmer's right, biodiversity conservation and sui generis issue, Convention on the right of farmer and plant breeders (CoFAB) presented by the government of India seems to be an option and instrument to cope with. So lobbying for CoFAB looks a milestone for the protection of the interest on the part of least developed countries.

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