The Battle over Plant Genetic Resources: Interpreting the International Treaty for Plant Genetic Resources

Table of ContentsI. Introduction 153II. Background 155A. Biotechnology 155B. Intellectual Property Protections.......158III. Treaties 160A. International Treaty for Plant Genetic Resources for Food and Agriculture (ITPGR) 1601. Formation 1602. Main provisions 1623. Ambiguities in treaty provisions.........1644. Interpretation language 166B. International Union for the Protection of New Varieties of Plants (UPOV).........1661. Formation 1662. Main Provisions 167C. Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) 1681. Formation 1682. Main provisions 169IV. The Challenges of Implementing the Treaties.........170A. Treaty Interpretation Generally 70B. The Interaction between ITPGR, UPOV, and TRIPS 172C. Potential Implementation Issues 174V. Suggested Interpretation.........176A. Genetic Parts or Components......178B. "In the Form Received" 180C. Form and Manner of Payment 183VI. Conclusion 184I. INTRODUCTIONThere is an inherent tension between the purposes of the International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGR)1-which fundamentally protects the availability of plant genetic resources for farming- and the International Union for the Protection of New Varieties of Plants (UPOV) and Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS)2-intellectual property (IP) treaties protecting the rights of plant genetic material producers. Because of this tension, member nations that are bound by TRIPS might encounter difficulty when trying to incorporate ITPGR into national law.Consider an example from Brazil: in 2000, Brazil and Switzerland were both subject to TRIPS.3 Neither country had signed, let alone ratified, the ITPGR.4 A Brazilian not-for-profit organization, the Brazilian Association for the Sustainable Use of Amazonian Biodiversity, transferred 10,000 micro-organisms from the Amazon to a Swiss company without consent from the Ministry of the Environment.5 This transfer gave the Swiss company, Novartis, the right to patent those genetic materials that came from the Amazon rainforest; TRIPS ensured that both nations offered the necessary intellectual property protections.6 Various members of civil society and government objected to this transfer after it was completed, arguing that Brazil did not retain enough benefits or protection for traditional uses of the organisms transferred.7 Had Brazil signed and ratified the ITPGR at the time, many of the plant genetic materials transferred would have been subject to ITPGR protection. Depending on Brazil's interpretation of the ITPGR, the protection offered by the national legislation implementing that treaty would restrict the rights that Novartis had to patent the transferred plant genetic resources. Had Brazil adopted an interpretation of ITPGR that was too broad, it would have conflicted with their obligations under TRIPS; however, a narrow interpretation might not have reserved any of the plant genetic material for food and agriculture.8 In fact, the Brazilian government passed a pre-ITPGR protection for plant genetic resources in response to this incident.9This anecdote imparts several lessons: TRIPS and the ITPGR generally cover the same material but offer different kinds of protection to those dealing in plant genetic resources. Because of this difference, implementing the ITPGR in light of the rigid and binding TRIPS agreement can be challenging for nations, but its implementation can offer critical protection of certain plant genetic materials used for food production and agriculture. Furthermore, implementing ITPGR is complicated by the fact that several of its critical phrases are undefined. …