The Use of GM Crops in Developing Countries
Germplasm
6.9 Germplasm in the form of seeds is the starting point for a plant breeding programme. Some germplasm is publicly available in national and international collections. The 16 International Agricultural Research Centres (IARCs) of the CGIAR (Consultative Group on International Agricultural Research, see Box 6.1) hold over 500,000 accessions of landraces and improved varieties of the world’s major crops. These ex situ collections are held in trust on behalf of the international community by the IARCs. Companies engaged in plant breeding also hold large collections of germplasm, which they use for breeding and improvement of the crop varieties in which they specialise. They may seek access to national collections and to those of the CGIAR, to improve their own elite strains of germplasm that have resulted from their breeding programmes. The International Treaty on Plant Genetic Resources for Food and Agriculture will require a standardised MTA to be used by institutions holding these collections (see paragraphs 6.3-6.4). We welcome this Treaty which, once ratified, will regulate the fair exchange of germplasm for 33 important crops (see paragraphs 5.11-5.15).
6.10 Plant breeders have used plant variety rights (PVR) to protect new crop varieties. These rights are a form of intellectual property and allow the breeder some protection for his new variety. The plant breeders’ exemption allows breeders to use varieties protected by PVRs for the purpose of developing new varieties. Genetic modification has provided the breeder with new tools to create novel varieties and stronger rights in the form of patents have been granted to protect them. The collections of germplasm held by the IARCs cannot be patented ‘in the form received’. However, once a modification has been introduced, they may then be eligible for patenting. Patent protection for plants or seeds is frequently obtained by securing a broad patent which claims rights over the gene or gene carrie (vector), and may cover a number of varieties or even crops incorporating the gene. In effect, this may have the same outcome as patenting the whole plant because the patent extends to ‘all material … in which the product is incorporated’.10 The holder of a patented variety may be able to prevent others from using it for breeding purposes.
6.11 Under patent law in the UK, it appears that a plant breeder does not have the clear right to use a patented GM plant variety for breeding purposes. To avoid possible litigation, he can either refrain from using the variety or apply for a licence from the patent owner. Such requests may be refused or granted on less than favourable terms.11 Nor does the provision of compulsory licensing necessarily offer a further option. UK regulations require the existence of a significantly improved variety to justify a compulsory licence. Such a variety must have been tested in the field and would require prior use of the patented variety. As we noted in our 1999 Report, this potential locking up of genetic variation would be contrary to the spirit and intent of plant variety rights. We consider that there is a strong case for the principle of the breeders’ research exemption established for PVRs to be applied to patented varieties. We reaffirm our recommendation from that Report that the World Intellectual Property Organization (WIPO), the European Commission (EC), the Union for the Protection of the New Varieties of Plants (UPOV), the Consultative Group on International Agricultural Research (CGIAR) and the International Plant Genetic Resources Institute (IPGRI) together closely monitor the impact of patents on the availability of germplasm to plant breeders (paragraph 3.61 of the 1999 Report).
| The CGIAR, created in 1971, is an association of public and private members supporting research in a system of 16 centres that are active in more than 100 countries. The CGIAR aims to contribute to food security and the reduction of poverty in developing countries through research, strengthening of local expertise, and support for policy through environmentally sound practices. The CGIAR’s research agenda has five main priorities: increasing agricultural productivity, protecting the environment, conserving biodiversity, improving policies which influence the spread of new technologies, as well as the management and use of natural resources, and strengthening networks for national research. The CGIAR holds one of the world’s largest ex situ collections of plant genetic resources in trust for the global community. It contains over 500,000 accessions of more than 3,000 crop, forage, and agroforestry species. The germplasm within the collections is made available without restriction to researchers around the world, on the understanding that no intellectual property protection is to be applied to the material as such. |
8 For a discussion of how the increasing trend to acquire IPRs may also affect the direction of academic research see Royal Society (2003) Keeping Science Open: the effects of intellectual property policy on the conduct of science (London: Royal
Society).
9 Conway G (2003) From the Green Revolution to the Biotechnology Revolution: Food for Poor People in the 21st Century. Speech at the Woodrow Wilson International Center for Scholars Director’s Forum. 12 March 2003. Available:
http://www.rockfound.org/documents/566/Conway.pdf. Accessed on: 10 Oct 2003.
10 Directive 98/44/EC Article 9