February 14, 1998

Australians Abandon 2 Plant Patent "Claims"

But many questions remain ... and the fate of 26 other claims are in doubt

Australian crop development agencies have been forced to abandon their claims on two chickpea varieties they admit were obtained from an international public research institute based in India (see RAFI's release of 6 January, 1998). In a blunt message sent January 8th, the institute, the International Crops Research Institute for the Semi-Arid Tropics (ICRISAT) - acting on information from RAFI - demanded that the claims for Australian Plant Breeders' Rights (a patent-like intellectual property regime for crop varieties) be dropped. On January 16th, the two Australian institutes - Agriculture WA and CLIMA - said that the claims had been abandoned.

ICRISAT and RAFI charged that the Australian claims ignored a signed agreement that the agencies would not commercialize or license the varieties which they had obtained for research purposes only. But, according to RAFI - a Canadian-based advocacy organization - the issue is far from over.

RAFI Executive Director, Pat Mooney comments, "We still do not understand how the Australian PBR Office could have considered the applications unless it was misled regarding the legal ownership of the varieties. We also can't understand why a claim would be processed when the applicant admitted that they had done no breeding work on the ICRISAT germplasm. This appears to be a violation of all the principles of intellectual property protection."

One of the two chickpea varieties originated in Iran but had been further developed at ICRISAT. The second variety came directly from farmers' fields in Andra Pradesh where it is still popular. "No work whatever was done to improve upon the Indian variety," says Farhad Mazhar of UBINIG, a Bangladeshi civil society organization working with a wide network of farmers' organizations in South Asia, "It was a direct piracy of the genius of farmers there."

Bad luck for the Australians, the chickpea cases have drawn international attention for several reasons. The Indian variety was protected from commercialization by a trusteeship agreement between ICRISAT and the UN Food and Agriculture Organization (FAO) in Rome. As a result, both FAO and the World Bank-based Consultative Group on International Agricultural Research (CGIAR) are investigating. It's especially bad timing since the UN organization is in the process of completing a legally-binding treaty on the exchange of crop germplasm. Australia has been a major beneficiary of the free flow of agricultural breeding material but it has been remarkably uncooperative among the world's industrialized governments throughout the negotiations. "There's very little good will for Australia these days," Neth DaÒo of SEARICE, a well-known Philippine-based civil society organization says. "Normally the United States is the 'bad boy' in UN fracases ... this time it's Australia. It's hard to understand why Australia has been so negative," Edward Hammond of RAFI adds, "historically, Australia gains enormously from the free flow of crop germplasm. Cases like the chickpea problem with India and Iran do Australia nothing but harm."

More problems: Meanwhile, RAFI is examining 26 other crop varieties - either under PBR claim or under licence - that originate in other countries. "The chickpea examples may not be isolated," says RAFI's Edward Hammond, "Other cases involving international research centres located in Syria and Colombia appear to raise all or most of the same issues. The shocker is how widespread the possible abuses may be." Adds Mooney, " So far, we have 4 confirmed cases where germplasm protected by the FAO-CGIAR treaty are subject to Australian PBR claims. There are 6 more cases where the treaty may apply." "Beyond these," Edward Hammond points out, "there are 14 other cases where PBR claims may have been made on farmers' varieties from other countries even though Australian breeders seem to have done little or nothing to improve them. RAFI is studying another 4 varieties that are also on the FAO-CGIAR non-commercial list but appear to be under exclusive license to Australian institutions."

Delegates to an FAO negotiating conference on the legally-binding germplasm exchange treaty were surprised last December to find that Australia was opposed to one of the longstanding principles of the treaty - Farmers' Rights. Farmers' Rights was accepted in FAO in 1985 and in the Earth Summit agreement of 1992. It is also part of the Biodiversity Convention. In sum, Farmers' Rights recognizes the historic and continuing contribution of farmers in crop germplasm conservation and development and requires that farmers share in any benefits arising from the use of the germplasm. "Is it too cynical to suggest that Australia's opposition to Farmers' Rights is because crop institutes in that country fear they will be constrained in claiming ownership and benefits from the varieties collected from Third World farmers?", asks SEARICE's DaÒo.

Aussie Worries: RAFI is looking to FAO and CGIAR to determine the exact status of each of the 26 additional varieties. A summary description of each is attached. In the meantime, RAFI is calling upon the Australian Government to suspend processing Plant Breeders' Rights claims on the varieties until their true ownership can be confirmed. "Australian farmers should be concerned that a handful of public and private crop institutes could be jeopardizing the country's good name," Mooney notes, "For a country so dependent upon 'the kindness of strangers' this is an extremely risky business. Aside from examining these specific claims," Edward Hammond asserts, "Australia needs to reconsider its policy posture at FAO."

External Review: RAFI is preparing a report to governments and crop gene bank directors on the Australian situation. The report will be issued later this week. Following its review of the 26 crop varieties, RAFI will make recommendations on how best to respond to the issues raised by Australia. "It is already obvious," Pat Mooney points out that "the trusteeship agreement between FAO and CGIAR needs improvement. Obviously governments feel free to ignore it. Worse still, neither FAO nor CGIAR have the resources to monitor or report abuses. In fact, neither organization has the ability - despite their good will - to even determine what germplasm is part of the trust arrangement and what is not." This revelation comes at a particularly delicate time for FAO and CGIAR. CGIAR is undergoing its first Systemwide External Review in 17 years. Meanwhile, the FAO-CGIAR accord is up for renewal and governments are expected to discuss its future this June. "The trusteeship agreement involves close to a half million seed accessions of which about 40% are unique," Mazhar observes, "It represents an incredibly valuable agricultural asset. Yet neither the UN agency nor the 11 research centres involved seem to know who is responsible to do what ... or what is even on the trustee lists or by what ciriteria it was placed there. Somebody needs to take action!" Today, RAFI was informally advised that FAO and CGIAR have agreed to work together to find a solution.

The attached list of 28 plant varieties (the original 2 chickpea accessions plus the 26 others whose exact status is unresolved), should be seen as "work-in-progress" as RAFI attempts to confirm their origin and ownership. It is also possible that RAFI's research will identify other varieties requiring study. The list has been made available to FAO, CGIAR, the Australian Minister of Primary Industry, the Australian PBR Office, and relevant Australian institutes with the request that they provide their understanding of the status of each variety.


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