navigating the patent maze

An interested reader commented on the post in which I expressed approval for the decision of the Indian Government to not oppose the European Patent, now owned by Monsanto, that used Nap Hal. The reader raised several points that I would like to address. I also hope that it evokes more discussion on this topic area.

(Sidebar - there are currently 5 parties opposing this patent, including Greepeace and the European Flour Milling Association)

The reader raises several points. The first point, quoted below, speaks to whether the patent claims are in violation of the European Patent Convention.

The Patent in question explicitly claims a wheat variety, and so is squarely in violation of the European Patent Convention.??

The short answer is that the patent in question (EP 0 445 929) does not claim any plant varieties. The claims are directed to soft-milling wheat with particular characteristecs, flour prepared from that wheat, dough or batter prepared from the flour, edible products made from the dough or batter, and biscuits made from the flour.

The second point of the reader is that “the disclosure of the patent shows that the genetic traits which are key to the patent (double null allele in glu-D1 gene) were wholly derived from the landrace developed in India, namely, Nap Hal.”

I’m not sure what the reader’s objection is other than the landrace came from India. In fact, the landrace was obtained from a public germplasm bank. The accession was placed prior to the Convention on Biological Diversity, so that treaty does not control the situation. Until the CBD, typically there were no restrictions on accessions or, in the case of the CGIAR the restrictions regarding intellectual protection placed on germplasm held in FAO Trust were limited to the variety itself and did not extend to derivatives (such as the wheat claimed in the Monsanto patent).

Lastly, the reader raises several questions on policy: “So, how does this patent foster the goals of the Convention on Biological Diversity, a treaty every bit as sound as GATT? How does it foster or even allow benefit sharing to the peoples who developed the valuable double null trait? How does it not violate the articles of the European Patent COnvention? How is it any less an act of biopiracy than the Basmati patent, which the Indian government DID successfully challege?”

The subjects of these questions are worthy of lengthy debate for sure. Briefly though, patents are not meant to foster the goals of the CBD, worthy as as the CBD goals are. Benefit sharing is a concept that has only more recently risen above the radar horizon. What exactly benefit sharing actually is or should consist of is not even settled. Moreover, in an interesting study to be published soon, an agricultural economist shows that germplasm flow that resulted in commercial wheat varieties has more often occurred from North to South than the reverse.

I do not see either patent that used Nap Hal wheat or the Basmati rice as “biopiracy”. In the case of Nap Hal, the patent applicant disclosed the source of the wheat. As for Basmati rice, a legal assistant has addressed the many issues surrounding this controversial patent in an article, the main points of which I am happy to share with any interested persons.

In my opinion, the debate on patents that use Nap Hal, Basmati rice, and other plants of developing countries is often confused by mis-information about patents. Neither of the patents claims the Nap Hal landrace or Basmati rice, but many news articles state the opposite. Furthermore, patent applications in these cases were not filed in India, Pakistan or other developing countries, thus there is no inhibition on using the claimed soft-milling wheats anywhere (or importing them into) other than in the United States, Europe, and Australia (patents are pending in Canada and Japan). Now I come back to my original statement that prompted the comments — I agree with the government of India that it is not in its best interest to oppose a European patent that has no effect, or at most an extemely small effect, on its farmers or people?