|Keywords:||Patent law; Access to genetic resources.|
|Correct citation:||Sehgal, S. (1995), "First the Seed - Then you can worry about patents." Biotechnology and Development Monitor, No. 25, p. 24.|
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:
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 is Director General Plant Genetic Systems, Belgium; Chairman, Proagro Seeds Company, India.
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