Other authors on Page 24 have criticized patent law as being an inappropriate system to organize intellectual property rights (IPR) on living material. Suri Sehgal supports patents on individual genes and biotechnological inventions. However, in order to guarantee that Southern farmers’ access to best planting material is not hindered, he argues, a distinction should be made in patent laws between developing and developed countries.

In the on-going debate on patents and their particular application to plants, we would do well to remember the motto of the American Seed Trade Association "First the Seed". Though there are several issues which should be addressed concerning patents, fundamentally we must ask whether patents help or hinder farmers’ access to the best material for planting in their fields each season. If patents hinder that process, then we should be wary of them. If they help it, we should welcome them, and if they are irrelevant to what happens, then we should not presume to speak on behalf on farmers.

Patents on genes and other biological material are of course widely sought after in the developed world by both public institutes and private sector companies. Basically, two legitimate reasons are cited in the defence of patents: (1) patents benefit society by encouraging disclosure of inventions; (2) patents promote research by giving the inventor exclusive access to the invention. It is methodologically implausible to point to the ambiguity of certain terms, for example "gene", as a principle of exclusion from patentability. Ambiguity is a structural feature of any language, and by extension, of any law. Any legal language must strive for precision. In fact, patents on genetic material are highly specific with regards to claims and to the material to which they refer. In the same spirit it is suspect to claim that as patent law was originally developed for obvious inventions not found in nature, that any other kind of invention is excluded from protection. Laws change all the time as society encounters new situations not confronted by the law’s framers.
Furthermore, while it can be claimed that there is no "hard" evidence that patents promote research or invention, it has to be asked whether "hard" evidence is what one could ever find for such kinds of claims. In any case it seems intuitive that no private sector company is going to put its investors money into projects for which an adequate return cannot be assured. If private sector involvement in R&D is thought necessary, and most in our society think it is, then we must be consistent and accept patents on genetic material to ensure adequate returns to investors.

However, the enactment of patent legislation and strong Plant Variety Rights (PVR) similar to that in developed countries, is probably not appropriate for developing countries, at least in the short term. Any such legislation must, if enacted, take into consideration the following:

• Some mechanism to protect breeder’s rights and other intellectual property will have to be created. Budgetary constraints in the public sector and of donors have made it imperative that private sector plant breeding is encouraged. Unless there is a mechanism to protect value through some mechanism such as PVR, it will be difficult to entice the private sector into varietal breeding, seed production and distribution.
• A mechanism to protect biotechnological inventions is necessary. The development and commercialization of biotechnology is patent driven. Because of high development costs, an IPR legislation is essential to encourage private sector research in this field.
• The breeder’s exemptions should be maintained in any IPR legislation. Progress in plant breeding has been possible because of free access to germplasm from all sources. Restricting access will adversely affect overall breeding progress. Furthermore, it can lead to loss of genetic diversity, whereas increase in genetic diversity is the desired and accepted goal worldwide of agriculturists and environmentalists.
• The farmers’ privilege should be maintained in any new or amended IPR legislation. For centuries farmers in developing countries have played a critical role in conserving land races, which have served as the basis for crop improvement. It is fair that they are not denied the reward for these past efforts. Therefore, any legislation which restricts them in saving their own seed should be avoided.
• IPR legislation must kept simple, and its implementation cost effective. The seed companies in developing countries are typically small family-owned businesses. A too complicated IPR system can drive small companies out of business by multinationals who have easy access to patent attorneys, a strong tradition of technology protection, and experience in litigation.

Fair, effective and appropriate IPR legislation including patents on genetic material can be introduced in developing countries providing the considerations noted above are adhered to. Developed countries’ economies will not be significantly affected by these differences in IPR regimes, since existing patent legislation in developed countries will prevent the unauthorized imports of patented material or their products.
Suri Sehgal

Suri Sehgal is Director General Plant Genetic Systems, Belgium; Chairman, Proagro Seeds Company, India.