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eLaw Journal: Murdoch University Electronic Journal of Law |
"By legal sleight of hand, the living organisms themselves are deemed inventions of human intellect, and become the subject of monopoly patent claims."[1]"By discounting time and the historically evolving nature of innovation, patenting institutionalises privilege - those left out of the loop ... fall progressively behind in the race for ring-fencing products for monopoly exploitation".[2]
"Intellectual property, unlike tangible property, is non-exclusive ... Thus, (it) faces a special burden of justification not shared by justifications for owning tangible property. It is prima facie irrational for society to grant monopoly rights to something that all could use at once".[107]
[1] Christie, Jean, "Enclosing the Biodiversity Commons: Bioprospecting or Biopiracy?" in Hindmarsh, Richard & Lawrence, Geoffrey (eds), Altered Genes II (North Carlton, Vic: Scribe Publications, 2001), 176
[2] Barwa, S & Rai, SM, "The Political Economy of Intellectual Property Rights: A Gender Perspective" in Newell, P et al (eds), Development and the Challenge of Globalisation (Glasgow, Great Britain: ITDG Publishing, 2002), 42
[3] The term 'gene technology' has been used interchangeably with the terms 'biotechnology' and 'genetic engineering' to broadly describe the science involving the insertion of DNA from one species into the DNA of another.
[4] Stenson, Anthony J & Gray, Tim S, The Politics of Genetic Resource Control (Hampshire, London: Macmillan Press, 1999), 1
[5] Id, 2
[6] The Agreement constitutes Annex 1C of the Marrakesh Agreement Establishing the World Trade Organisation (WTO Agreement), finalised on 15 April 1994, and entered into force 1 January 1995. All WTO members are bound by the Agreement by Article II.2 of the WTO Agreement.
[7] Revesz, John, Trade-Related Aspects of Intellectual Property Rights (Canberra: AGPS, 1999), 51
[8] Also called plant variety protection
[9] Christie, 177
[10] Barton, John H, "Acquiring Protection for Improved Germplasm and Inbred Lines" in Erbisch, FH & Maredia, KM (eds), Intellectual Property Rights in Agricultural Biotechnology (United Kingdom: CAB International, 1998), 21
[11] Id, 22
[12] Murray, David R, Seeds of Concern:The Genetic Manipulation of Plants (Sydney, NSW: University of NSW Press Ltd, 2003), 101: The first patent of living materials was allowed by a US court in Diamond v Chakravarty [1980] USSC 119; (1980) 447 US 303
[13] Barton, 23
[14] Barwa & Rai, 48
[15] Blakeney, Michael, Trade Related Aspects of Intellectual Property Rights: A Concise Guide to the TRIPs Agreement (Great Britain: Sweet & Maxwell, 1997), v
[16] Revesz, 52
[17] Lesser, William et al, "Intellectual Property Rights, Agriculture and the World Bank" in Lele, Uma et al (eds), Intellectual Property Rights in Agriculture: The World Bank's Role in Assisting Borrower and Member Countries (Washington, United States: The International Bank for Reconstruction And Development, 2000), 1
[18] Christie, 180
[19] Stenson & Gray, 4; Id
[20] Christie, 180. Simons, Joshua J, "Cooperation and Coercion: The Protection of Intellectual Property in Developing Countries" [1999] BondLawRw 4; (1999) 11 Bond Law Review 59, 68-9: Many countries had also witnessed US trade retaliation under section 301 of the Trade Act 1974 and were led to believe that TRIPs would prevent further unilateral actions.
[21] Barwa & Rai, 45-6
[22] Article 27(1) requires that signatories provide patents for "any inventions, whether products or processes, in all fields of technology"
[23] Article 27(3)
[24] Christie, 180; Resesz, 11
[25] Art 27(3b). Christie, 180: although it is not necessary to provide patents for animals, in practice the microscopic parts of animals and humans are treated as microorganisms.
[26] Resesz, 11
[27] Article 41; Lesser et al, 5
[28] Articles 30 & 31; Revesz, 11; Lesser et al, 5
[29] Article 70.8; Blakeney, 94
[30] Article 70.9
[31] Blakeney, 95
[32] Lesser et al, 1
[33] Christie, 180
[34] Barwa & Rai, 43
[35] Id, 55
[36] Hettinger, 269. At 302: the "mistaken view that only human labour creates value (and that) genetic material is worthless"
[37] Christie, 180
[38] By creating IPRs as the dominant discourse, it legitimises gene technology and the commodification of nature. Stenson, 2: "role of normative ideas... in genetic resource control"
[39] Shiva, Vandana, Biopiracy: The Plunder of Nature and Knowledge (Boston, Massachusetts: South End Press, 1997), 10
[40] GRAIn, "For a Full Review of TRIPS 27.3(b): An Update of Where Developing Countries Stand with the push to Patent Life at WTO" http://www.grain.org/publications/tripsfeb00-en-p.htm 4 (Accessed 2 May 2003), 1: The US pharmaceutical industry pressured its government to include TRIPs in the GATT. Representatives of the industry provided the initial draft of the Agreement for discussion.
[41] Pendleton, Michael, "Intellectual Property and the National Interest: What Developing Countries Can Learn from the Hong Kong Experience"[1998] European Intellectual Property Review 325, 326
[42] Barwa & Rai, 46
[43] GRAIn; Lesser et al, 1: "Implementation requires a complex and sophisticated infrastructure that is lacking in most developing countries."
[44] Christie, 174
[45] Stenson & Gray, 2; Barwa & Rai, 41. The approach adopted is based in an economic, not a moral or entitlement approach. Stenson & Gray, 2-4: It can also be contrasted to rights over genetic resources or products situate in a community, national sovereignty, or as the common heritage of mankind.
[46] Christie, 177
[47] Simons, 61-2
[48] The preamble to TRIPs states that intellectual property rights are private rights.
[49] Buctuanon, E, "Globalisation of Biotechnology: the Agglomeration of Dispersed Knowledge and Information and its Implications for the Political Economy of Technology in Developing Countries" (2001) 20 New Genetics and Society, 25, 25
[50] Hettinger, Ned, "Patenting Life: Biotechnology, Intellectual Property, and Environmental Ethics" (1995) 22 Boston College Environmental Affairs Law Review 267, 275
[51] Id: "natural resources are going to matter less, the real action is going to be in gathering genes"
[52] Buctuanon, 25
[53] Barwa & Rai, 54
[54] Id, 45-50
[55] Christie, 175
[56] Blakeney, 6. Barwa & Rai, 50: The Marrakesh Agreement lead to a rush by the multinational seed companies to collect and crossbreed germplasm from developing countries and then to patent it in their own country.
[57] Hettinger, 301-303
[58] Ibid, 277
[59] Id: for example the patent granted for the "oncomouse" includes "any mammal with a recombinant, cancer-causing gene". That is, it provides a monopoly in organisms of a type that have not even been created!
[60] Erbisch, 24: for example the US patents that exist on all transgenic cotton.
[61] Shiva, Vandana, Monocultures of the Mind (Penang, Malaysia: Third World Network, 1993), 123
[62] Barwa & Rai, 51
[63] Revesz, 52
[64] Buctuanon, 26; Pendleton, 325-7; Hettinger, 291. It is said that patents are necessary as an incentive to the developer to bear the costs of research and development. However other commentators have stated that there is no proof that IPRs affect the level of research and development (Blakeney, 155).
[65] Buctuanon, 36
[66] Lesser et al, 7
[67] Buctuanon, 26
[68] Lesser et al, 6: it prevents developing countries from imitating imported technology
[69] Blakeney, 155-6
[70] Stenson & Gray, 5
[71] Ibid, 8
[72] Ibid, 10
[73] Ibid, 8
[74] Barwa & Rai, 45
[75] Stenson & Gray, 8: Two thirds of agricultural biotechnology research is carried out using private funds. (The trend of research occurring predominantly in the private sector is not simply a result of increasing levels of IPRs but part of a global trend to privatisation. IPRs do however provide a strong incentive to private participation in research.)
[76] Barwa & Rai, 50
[77] Stenson & Gray, 8
[78] Ibid, 9
[79] Lesser et al, 3: In 1998 Monsanto had established worldwide agricultural biotechnology market share of 77%
[80] Buctuanon, 27
[81] Ibid, 36
[82] Unknown author, "Sweeping Patents Put Biotech Companies on the Warpath" (1995) 268 Science 656, 657. For example it costs approximately $1m for the use of cotton technology (656).
[83] Hettinger, 294
[84] Science , 657
[85] Hettinger, 301-303
[86] Barwa & Rai, 43; Ibid, 278
[87] Hettinger, 301-303
[88] Murray, 115
[89] Hettinger, 303
[90] Christie, 176
[91] Murray, 99
[92] Barwa & Rai, 44
[93] Barton, 19
[94] Christie, 176
[95] Stenson & Gray, 13
[96] Ibid, 12
[97] Christie, 176
[98] Carr, M, "Challenging Globalisation: The Response of Women Workers and Entrepreneurs to Trade and Investment Policies" in Newell, P et al (eds), Development and the Challenge of Globalisation (Glasgow, Great Britain: ITDG Publishing, 2002), 133
[99] Barwa & Rai, 46
[100] Stenson & Gray, 14
[101] Hettinger, 302: Half of the research into biotechnology conducted by the big agricultural firms is aimed at producing herbicide tolerant crops. "The vertically-integrated agribusiness industry dominated by petroleum, chemical, and pharmaceutical conglomerates puts its energy into genetically altering crops to withstand" its chemicals.
[102] Shiva 1997, 90
[103] Hettinger, 302: Universities are also turning to research that is "market relevant".
[104] Stenson & Gray, 13: For this reason the potential economic value of biological diversity is enormous - it has been estimated that the germplasm in developing world worth "untold billions".
[105] Shiva 1993, 6
[106] Science, 657
[107] Hettinger, 278
[108] That a person is naturally entitled to the benefit of what they have created (propounded by John Locke)
[109] Hettinger, 278
[110] Ibid, 284
[111] Ibid, 290-1
[112] Ibid, 289
[113] Ibid, 286-7; Stenson & Gray, 136-53
[114] Boyle, James, Shamans, Software, and Spleens: Law and the Construction of the Information Society (Cambridge, Massachusetts: Harvard University Press, 1996), 44
[115] Buctuanon, 36
[116] Simons, 92, 94
[117] Machlup, F, "An Economic Review of the Patent System" (Washington: United States Government Printing Office, 1958), 80 in Ricketson, S and Richardson, M, Intellectual Property: Cases, Materials and Commentary (2nd edn) (Chatsworth, NSW: LexisNexis Butterworths, 1998), 543: "If we did not have a patent system, it would be irresponsible, on the basis of our present knowledge of its economic consequences, to recommend instituting one."
[118] Barwa & Rai, 49; Lesser et al, 6
[119] Hettinger, 293
[120] Barwa & Rai, 49
[121] Revesz, 53
[122] Hettinger, 295. At 296: It is a "mistake to stimulate this technology indiscriminately through offers of broad and lucrative utility patent grants"
[123]
Ibid, 296
[124] Shiva 1993, 112. Similarly Barwa & Rai, 51: In 1998-9, 500 Warangal farmers in India took their own lives due to "pressure from a combination of local and global structural pressures".
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