National Intellectual Property Rights System: Pakistan's Perspective

National Intellectual Property Rights System: Pakistan's perspective

Dr Wajid Pirzada

(This article {originally published in five parts} seeks to review the international obligations with regard to Intellectual Property Rights (IPRs) under WTO Agreement (on Trade- Related aspects of Intellectual Property Rights-TRIPS); and other international treaties, undertakings and discussions under different multilateral forums)

It argues that there is strong nexus between international trade in genetic resources and sustainable agriculture, highlighting some of the genuine concerns of developing countries on (emerging) international trade regime in this area. It addresses the need for striking balance between international commitments and public interest while formulating public policies on Intellectual Property Rights).

1. Introduction:

1. Intellectual Property: Ideas and knowledge value currency these days as an increasingly important area of trade. The value attached to a product(s), in this context, lies in the level of invention, innovation, research, design and testing involved in technological development of such product(s). Many products that used to be traded earlier as low-technology goods or commodities are now being traded as value-added products, for these contain a higher level of technology [invention] and characteristics [design] in their value e.g. new varieties of plants.

2. The innovator(s) / creator(s) of such products / process (es) would like to secure right(s) to prevent others from using their invention(s). These rights known as Intellectual Property Rights (IPRs), in their broader meanings imply an ownership of ideas, including literary and artistic works, inventions, signs for distinguishing goods of an enterprise and other elements of industrial property. The extent of protection and enforcement of IP varies widely around the world, which at times may lead to disputes among trading parties.

It is for the first time that WTO has brought both agriculture and IP (life -form) in the fold of trade. Patenting of life forms (plant varieties), through WTO Agreement on TRIPS has paved the way for commercialization (privatization) of (local, indigenous) knowledge and plant genetic resources (PGRs). As genetic (PGRs) diversity is basic to agricultural development & sustainability, food security and (Food &Agri) trade growth, new IPR regime can implicate sustainable (agricultural) development. Erosion of indigenous knowledge and genetic wealth, through tighter IPRs, may thus implicate food security and threaten the livelihood of the custodians of natural resources .The small farmers of South- custodian of 90% of world genetic resources, will thus become more vulnerable. This necessitates (better) understanding of the [emerging] international trade regime under WTO, formulating National IPRs System [protecting PGRs and thus securing public interests.

2. The WTO Agreement on TRIPS:

1. This Agreement envisages narrowing down of these gaps / differences in IP regimes (of trading partners), by bringing the IPRs in the fold of international trade rules. Its Agreement on TRIPS, in this regard, is reckoned as the most comprehensive multilateral Agreement on IPRs.

The major argument advanced in favour of IPRs protection is that by rewarding inventors, it gives them incentive to make discoveries from which the community benefits. It, however, has generated certain controversies, because of ambiguities that it contained. To understand TRIPS, its (controversial) provisions and their implications we need to know the salient features of TRIPS.

2. Understanding TRIPS:

(Agreement) preamble describes the key objective of the Agreement as "to reduce distortions and impediments to international trade, and taking in to account the need to promote effective and adequate protection of IPRs, and to ensure that measures and procedures to enforce IPRs do not themselves become barriers to legitimate trade."

3. Its Preamble identifies following need- based objectives:

• The applicability of the basic principles of GATT 1994 and of relevant international IP Agreements or Conventions;

• The provision of adequate standards and principles concerning the availability, scope and use of trade-related IPRs;

• The provision of effective and appropriate means for the enforcement of trade-related IPRs, taking in to account differences in national legal systems;

• The provision of effective and expeditious procedures for the multi-lateral prevention and settlement of disputes between governments and

• Transitional arrangements aiming at the fullest participation in the results of negotiations.

• TRIPS addresses five broad issues:

• How basic principles of trading system and other international IP agreement should be applied?

• How to give adequate protection to IP rights?

• How countries should enforce those rights adequately in their own territories?

• How to settle disputes on IP between WTO Members?

• How to make special transitional arrangements during the period when the new system is being introduced.

• The Agreement recognizes the need for multilateral framework of principles, rules and regulations dealing with international trade in counterfeit goods;

• The underlying public policy objectives of national systems for the protection of IP, including developmental and technological objectives are:

• The special need of the Least Developed country Members(LDC's) in respect of maximum flexibility in domestic implementation of laws and regulations in order to enable them to create a sound and viable technological base;

• The importance of reducing tensions by reaching strengthened commitments to resolve disputes on TRIP issues through multilateral procedures;

• To establish a mutually supportive relationship between the WTO and the world.

TRIPS Agreement came in to force on January I, 1995. It provides five years grace [transitional] period to DCs (Article 65), and eleven years to LDCs (Article 66) as to help them phase in. Accordingly all WTO Members are bound to provide IP (patent) protection latest by January 1, 2005. It, however, is worth noting that transition period allowed to DCs (including Pakistan) for implementation has expired on Jan1,2000.

As such non- compliance could invite disputes and litigation. And if a country fails to comply IPR obligations trade sanctions can also be imposed as Agreement is enforced through Dispute Settlement Understandings (DSU). A number of DC's have already been placed on the priority watch list of the special 301 provisions of the US Trade Act for denying IP protection or market access toUS firms [Pakistan is, however, on the general watch list].

The Agreement requires Members to observe the WTO core principles - namely Most Favoured Nation and National Treatment (MFN and NT clauses), with respect to IP. Accordingly, a country cannot recognize patents on inventions by its nationals [individuals / organizations] without giving similar rights to foreign nationals for similar intellectual pursuits [Article 3]. It further shall not discriminate among nationals of different (foreign) countries [Article 4].

TRIPS Council of WTO, under Article 68, monitors the implementation of the Agreement / compliance by Member countries, besides providing consultative forum on IPR's.

The main feature of TRIPS is that it requires WTO Members to meet certain minimum standards for protection of IP (implying that TRIPS is a minimum standards Agreement, which allows Members to provide more extensive protection of IP, if they so wish). Thus Member countries can not provide lower level of protection in the areas covered under TRIPS.(They, however, are not obliged to provide a higher level of protection than what Agreement stipulates).

The Agreement recognizes, under its Article 27, patents on inventions, both products and processes, in all fields of technology. It also requires parties, under Article 42-49, to provide fair, effective judicial procedures and remedies for right holders claiming infringements.

The types of IP: Agreement covers following, distinct types of (intangible) property, for which (collectively term) Intellectual Property (IP) is coined, namely:

• Copyright (and related rights): the rights of performers, producers of sound recordings and broadcasting organizations,

• Trademarks (including Service marks),

• Geographical Indications (including appellation of origin), Geographical Indications (GIs) cover place names (or words associated with a place) used to identify products, which have a particular quality or other characteristics because they come from that place. Under the Agreement GIs are protected, as Agreement provides " indications which identify a good as originating in the territory of a Member, or a region or locality in that territory, where a given quality, reputation or other characteristics of the good is essentially attributable to its GIs"(Article 22).

• Obligations (under TRIPS) only relate to GIs that are protected in their country of origin.

• Industrial Designs,

• Patents (including the Protection of new Varieties of Plants (PVP),

• Patent gives a monopoly right [to patentee] to exploit the invention for a period of 17-20 years. Once a patent is granted that patentee may give license [for the technology] to other individuals / companies.

• The Layout- designs (topographies) of Integrated Circuits and

• Undisclosed Information (including trade secrets and test data).

• Accordingly, depending upon the type of IP, the protection can be provided e.g. books, paintings and films come under copyrights; inventions can be patented and product(s) logos can be registered as trademarks; and so on.

• Inventions covered, under the Agreement, for purpose of protection must qualify following criteria:

• they must be new,

• must involve inventive step(s), and

• are capable of industrial application.

• In regard to the minimum standards, under the Agreement, each of the main element is defined namely:

• subject matter to be protected,

• the right(s) to be conferred,

• permissible exception(s) to those right(s), and

• the minimum duration of protection.

The Agreement sets these standards by requiring:

First, that the substantive obligations of the main Conventions of the World Intellectual Property (WIPO), the Paris Convention for the protection of Industrial property (Paris Convention- treaty administered by WIPO) and Artistic Works (Bern Convention- treaty administered by WIPO), in their most recent versions, must be complied with.

Second, with the exception of the provisions of the Bern Convention on moral rights, all the main substantive provisions of theseConventions are incorporated by reference and thus become obligations, under TRIPS, among Member countries.

With regard to patent protection, the Agreement provides that ;

• Patent protection must be available for at least twenty years.

• It must be available for both products and processes.

Article 27 further provides that "subject to provisions of paragraphs 2 and 3, patents shall be available and patent rights enjoyable without discrimination as to place of invention, the field of technology and whether the products are imported or locally produced."

Governments can, however, refuse to issue patent for an invention if its commercial exploitation is prohibited for reasons of order public i.e. Public order or morality. They can also exclude,

a. diagnostic, therapeutic and surgical methods,

b. Plants and animals (other than microorganisms), and biological processes (other than microbiological processes) for the production of plants or animals [Article 27].

Anti-thesis: The main concerns shown by stakeholders of IP relate to following issues:

• Constructive ambiguity of TRIPS.

• TRIPS is in clear conflict with UN Convention on Biodiversity (CBD) seeking sovereign [local and indigenous] community rights to the plant genetic resources.

• TRIPS Agreement defies the rights [on PGRs] of Prior Informed Consent (PIC) and benefit- sharing, which other multilateral Agreements [CBD] ensure.

• Implementation of TRIPS [patent regime] implies access [make, use and sell] of North to genetic resources of South- 90% of the world's biodiversity, implying corporate control of food and medicine supplies.

• Farmers in South have to pay royalties to [gene] patentees, for reuse of seeds- TRIPS thus discourages small-scale production, sale and exchange of seed [genetic resources].

• TRIPS is a disaster, in waiting, for DC's in terms of [agro] biodiversity and food security.

• Global TRIPS regime can, through tighter IPRs, displace and thus further marginalize the disadvantaged and poor farmers of South.

• The traditional knowledge [local] indigenous communities is being used by TNCs [developed countries] to identify [specific] genes for product development-theft of centuries old knowledge.

• Patenting of products and knowledge of DC's-bio-piracy by industrialized countries.

• Patent Laws do not recognize traditional knowledge [and ownership system].

• The industrialized world has failed to honour promises under TRIPS for technical [technology transfer] and financial assistance.

• No level playing field- as the industrialized world introduced patent legislation in this field after they had reached a certain level of technological competence. They have access both to technology and capital, which most DC's lack in. From 1990-199 some 25,000 [biotech.] patents were granted across the world. Japan and US had 74.6%, while EU had a share of 19%. The DCs had share of only 7%.

• Tighter IPR regime makes technology costly, thus blocking the prospects for industrial and technological development in DCs.

• The possible negative impact of IPRs on health care in DC's.

• The lack of clarity in criteria or rational used to determine the exclusions in TRIPS Article 27.3(B).

• GMO's, terminator technology and plant breeders' rights- viewing GMO -a killer and anti-life technology.

• The law ignores the cultural diversity [from plant varieties to human life].

• TRIPS protects the interests on industrial lobbies of developed worlds

• Shift in research focus, rush and push of commercial interests is putting profits before people- money talks louder than need.

• These concerns have compounded with expansive patents on life forms, which could exemplified by:

• US patent [1995], on turmeric, for healing wounds granted to two researchers of University of Mississippi. As turmeric has been used since centuries in the sub-continent, US patent on turmeric, with out benefit sharing as provided under Articles 8(j) and 15 of CBD, implies infringement of art and common knowledge [developed and owned] of custodians of genetic resources.

• US patent on quinoa [#5304718] granted to researchers of Colorado State University.

• These controversies have bred many disputes, with following manifest signs and symptoms:

• African Group has asked for review of TRIPS.

• The 3rd World Network, Malaysia has floated a proposal for amendment of article 27.3(b) suggesting its replacement.

• Some 200 organizations from 35 nations have challenged a patent, to Multinational Corporation M/s W Grace, granting the exclusive rights for use of pesticide extract from neem seeds.

In this context, for purpose of agriculture / food & farm, the most pertinent provisions of the Agreement fall under Article 27.3 (b) as these relate to PVP, requiring Member countries to provide some form of protection for all plant [botanical] genera and species. The Article provides " Parties may exclude from perfectibility: (b) plants and animals, other than microorganisms, and essentially biologically processes for the production of plants or animals, other than non-biological and microbiological processes. However, Members shall provide, for the protection of plant varieties, either by patents or by an effective sui generis System or by a combination thereof".

The mandatory review of provisions of this paragraph was due four years after the date of entry in to force of the WTO Agreement.

Accordingly TRIPS Council started review process in 1999. A meeting of the Council, in this regard, was held on Nov. 27- Dec.1, 2000 with mandated review of Article 27.3 b on agenda. No progress, however, has so far been made since the time review process started.

The Article 27.3 b, of TRIPS, gives Members countries choice [s] to opt for and design a national IPR System, which meets national / public interests, within the framework of TRIPS. Plant varieties, however, must be protected either by patents or alternatively by a special system-sui generis [such as breeder's rights provided in the Convention of International Union for Protection of new Plant Varieties-UPOV]. The Member countries also have obligations, under other pertinent International Agreements- such as UN Convention on Biological Diversity (CBD), which have close inter-face with TRIPS. As such, there is need for harmonization of IPRs obligations under TRIPS, with those of UPOV, CBD and other multilateral treaties on IPRs.

Counterbalancing WTO [TRIPS] regime with CBD: The WTO and CBD both include important provisions dealing with IP.TRIPS emphasizes patents and other IPRs defined under conventional IP regimes. Until now, these rights have been primarily obtained and owned by inventors and corporations involved in the formal research sector in developed countries; indigenous and traditional knowledge has not received equivalent legal protection.

The CBD, in contrast, calls on parties in Article 15 to ensure that a share of benefits from genetic resources returns to the providers. In Article 8 (j) it requires parties to encourage the return of benefits from bio-diversity -related traditional knowledge to the indigenous and local communities that are its custodians.

The TRIPS Agreement, therefore, needs to be counterbalanced with IPRs-related provisions of CBD. Besides international fora, national institutions responsible for policy formulation can help bring the required balance. A better understanding of CBD would be rewarding in this regard.

Understanding CBD: Some of the relevant provisions of CBD (1992) are reproduced below:

Article 8: (In situ Conservation): "each party shall, as far as possible and as appropriate: […] (j) Subject to its national legislation, respect, preserve and maintain knowledge, innovations and practices of indigenous and local communities embodying traditional life-styles relevant for the conservation and sustainable use of biological diversity and promote their wider application with approval and involvement of the holders of such knowledge, innovations and practices and encourage the equitable sharing of the benefits arising from utilization of such knowledge, innovations and practices;

Article 15 (Access to Genetic resources)

1. Recognizing the sovereign rights of states over the natural resources, the authority to determine access to genetic resources rests with the national governments and is subject to national legislation.

2. Each contracting party shall endeavor to create conditions to facilitate access to genetic resources for environmentally sound uses by other contracting parties and not to impose restrictions that run counter to the objectives of this Convention.

3. For the purpose of this Convention, the genetic resources being provided by contracting party, as referred to in this Article and Article 16 and 19, are only those that are provided by contracting parties that are countries of origin of such resources or by the parties that have acquired the genetic resources in accordance with this Convention.

4. Access, where granted, shall be on mutually agreed terms and subject to provisions of this Article.

5. Access to genetic resources shall be subject to Prior Informed Consent (PIC) of the contracting party providing such resources, unless otherwise determined by that party.

6. Each contracting party shall endeavor to develop and carry out scientific research based on genetic resources provided by other contracting parties with full participation of, and where possible in, such contracting parties.

7. Each contracting party shall take legislative, administrative or policy measures, as appropriate, and in accordance with Article 16 and 19 and, where necessary, through the financial mechanism established by Article 20 and 21 with the aim of sharing in a fair and equitable way the results of research and development and the benefits arising from the commercial and other utilization of genetic resources with the contracting party providing such resources. Such sharing shall be on mutually agreed terms.

Article 16. (Access to and Transfer of Technology).

1. Each Contracting Party, recognizing that technology includes biotechnology, and that both access to and transfer of technology among Contracting Parties are essential elements for the attainment of the objectives of this Convention, undertakes subject to the provisions of this Article to provide and/or facilitate access for and transfer to other Contracting Parties of technologies that are relevant to the conservation and sustainable use of biological diversity or make use of genetic resources and do not cause significant damage to the environment.

2. Access to and transfer of technology referred to in paragraph 1 above to developing countries shall be provided and/or facilitated under fair and most favorable terms, including on confessional and preferential terms where mutually agreed, and, where necessary, in accordance with the financial mechanism established by Articles 20 and 21. In the case of technology subject to patents and other intellectual property rights, such access and transfer shall be provided on terms, which recognize and are consistent with the adequate and effective protection of intellectual property rights. The application of this paragraph shall be consistent with paragraphs 3, 4 and 5 below.

3. Each Contracting Party shall take legislative, administrative or policy measures, as appropriate, with the aim that Contracting Parties, in particular those that are developing countries, which provide genetic resources are provided access to and transfer of technology which makes use of those resources, on mutually agreed terms, including technology protected by patents and other intellectual property rights, where necessary, through the provisions of Articles 20 and 21 and in accordance with international law and consistent with paragraphs 4 and 5 below.

4. Each Contracting Party shall take legislative, administrative or policy measures, as appropriate, with the aim that the private sector facilitates access to, joint development and transfer of technology referred to in paragraph 1 above for the benefit of both governmental institutions and the private sector of developing countries and in this regard shall abide by the obligations included in paragraphs 1, 2 and 3 above.

5. Each Contracting Parties, recognizing that patents and other intellectual property rights may have an influence on the implementation of this Convention, shall cooperate in this regard subject to national legislation and international law in order to ensure that such rights are supportive of and do not run counter to its objectives.

Compliance with Article 27 .3 (b) implies:

Members have to implement some form of IP protection for plant varieties, whether through patents or sui generis System or a combination of the two (Members have been left free to determine the appropriate method of implementing the provisions of the Agreement, with in their own legal System and practice).

Nationals of other Member state(s) have the same right; as granted to nationals of the country concerned (NT clause).

Any advantage, favor, privilege or immunity granted to national of any other country has to be granted immediately and unconditionally to nationals of all other Member states (MFN clause).

A judicial procedure must be in force to permit action against any infringement of [Protected] rights.

4. Designing National IPR System:

Pakistan being signatory to WTO, has to comply with the TRIPs Agreement w.e.f. Jan.1, 2000. Pakistan is also party to other multinational Agreements such as the Convention establishing WIPO since 1977, and the Bern Convention since 1970.This necessitates review of national IPRs policy as to re-orient and readjust to WTO regime for purpose of conformity.

According to GATT /WTO jurisprudence a domestic law is deemed to be in conformity with the international treaty unless it mandates a measure, which is repugnant to the treaty. With this in view we need to modernize and revamp National IPR System. In this context, we need to introduce PVP regulations as well.

4.1. The Guiding Principles: The International Plant Genetic resources Institute (IPGRI) has suggested following very pertinent questions, to be considered by the policy makers, before formulating a national policy on IPRs:

• What kind of domestic seed industry exists?

• What kind of public breeding sector exists?

• What kind of [seed] supply system is in place?

• To what extent is farm-saved seed used in the country?

• What is the current capacity of the breeders?

• What do the local breeders want to do in the next 5-10 years?

• Are external inputs to agriculture low or high?

• What are the country's needs and objectives?

• What is the country's biotechnological capacity?

• What are the goals and realistic expectations of biotechnology sector?

• What kind of strategic alliance(s) will the country want to enter in the next 5-10 years and how involved will other countries be?

• As indicated earlier, TRIPs identifies three types of IPR systems for genetic resources / plant varieties protection, namely:

• Patenting under TRIPs,

• Evolving a sui generis system,

• Plant Varieties Protection [PVP] regime, combining both- TRIPs and Sui generis system.

The national governments in DC's have to opt for one of these three options for purpose of conformity to WTO regime. They may have to strike a balance, in this regard, matching the liberalization of trade in agriculture / genetic resources, under WTO, with local sectoral priorities as identified national development plans.

In this regard we need to understand what [alternate PVP regime] sui generis system, proposed under TRIPs implies?

The sui generis is a Latin world meaning " of its own kind". In its broader meanings, it is a system specially designed for such a purpose. In a rather narrow sense the term sui generis shall imply a protection system specially designed for genetic resources / plant varieties. In this regard one may benefit from CBD, UPOV modalities.

A balance of priorities / interests, thus built- in the sui generis system, in the areas of trade development, environment and food security- sustainable trade [in agriculture / genetic resources], adjusting to socio-economic milieu of the country would be rewarding.

This, however, needs to be demonstrated by DC's that such a system is effective and is in conformity with WTO regime on IPRs.

A sustainable trade, as envisioned above, could be defined as one, which generates economic value, helps alleviate poverty, reduce inequality, regenerate environmental resources and sustain development. We also need to appreciate that trade, in food and farm products, has a close nexus with biodiversity & environment and food securities of local communities.

In this context IUCN views that some types of trade, in general, impacts biodiversity [environment and food security]. Such an impact, they maintain, depends on the product traded, the method of production, the mode of transport and other factors.

Accordingly, international obligations under CBD guide the parties to this effect. It provides:

"Each contracting party shall, as far as possible and appropriate, in particular for the purpose of Article 8 [in-situ conservation] to 10 [sustainable use of components of bio-diversity]:

Identify processes and categories of activities which have or likely to have significant adverse impact on the conservation and sustainable use of biological diversity, and monitor their effects through sampling and other techniques"[Article 7].

Synergistic integration of CBD obligations with that of TRIPs, therefore, may help bring the required balance; and thus meeting the cherished objective of sustainable development in this area.

We need to explore, at first instance opportunities / options available for striking the required balance, under CBD in comparison to TRIPS or other alternative(s) available, for the purpose of Plant Varieties Protection (PVP).

National IPR regime and [sustainable] agriculture:

The impact of new [international] trade paradigm-WTO regime, seeking liberalization of trade in genetic [Agro-food] resources on sustainable [agricultural] development of DC's [like Pakistan] shall primarily depend on:

• The nature of agricultural economy,

• The extent to which trade [liberalization] and agricultural development is integrated.

In general, an access to genetic resources, under TRIPS, may have long-term [socio -economic] implications for both sustainable agriculture and thereby for [livelihood of] custodians of natural resources- the small farmers.

A lopsided policy environment can, therefore, compromise rights of farmers and / or interest of commercial sector.

It can also impact the process of [bio] technological development so vital for both agricultural and national development. For instance, non- protection of plant varieties can lead to erosion of genetic treasure and agro-biodiversity. On the other hand restrictions on commercial sector (a non-patent regime) can impact international trade related to biotechnology- international technology transactions, and mobilization of scientific knowledge.

There is, therefore, immediate need to strike a balance while formulating national policies governing IPR, as to represent local needs and simultaneously further socio-economic development through mobilization of knowledge and stimulation of innovative [bio] technological development in the country.

In this context following are some relevant provisions under the Agreement:

"Members shall give effect to the provisions of this Agreement. Members may, but shall not be obliged to, implement in their law more extensive protection than is required by this Agreement, provided that such protection does not contravene the provisions of the Agreement. Members shall be free to determine the appropriate method of implementing the provisions of this Agreement with in their own legal system and practice"(Article 1).

Recognizing the underlying public policy objectives developmental and technological objectives" (Preamble).

"The protection and enforcement of IPRs should contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations" (Article 7).

Members may, in formulating or amending their laws and regulations, adopt measures necessary to protect public health and nutrition, and to promote public interest in sectors of vital importance to their socio-economic and technological development, provided that such measures are consistent with the provisions of this Agreement" (Article 8).

"Members may exclude from patentability inventions, the prevention with in the territory of the commercial exploitation of which is necessary to protect order public or morality, including to protect human, animal or plant life or health." (Article 27.2).

These provisions become pertinent to our national cause, keeping in view the vital importance of agriculture sector to our economy, nutritional health and socio-economic development; and the need for sound [bio] technological base as to underpin agro-industrial development.

As such, these provisions imply flexibility, with in TRIPS framework, to match [Agri.] developmental and [bio] technological objectives with the international obligation(s); and carve out strategy which suits best the national [public] interests. Further, the need identified- Preamble " recognizing also the special needs… to create a sound and viable technological base" for LDC's can also be extrapolated to the advantage of DC's while developing national IPR regime, identifying development of sound technological base as one of the national policy goals. Such a tailor- made National IPR System can, therefore, cater best to national technological, corporate and farming sectors yet honoring the international commitments.

Pakistan " Patent Ordinance 2000" and PVP:

Patent Ordinance promulgated on December 2, 2000 to amend and consolidate the law relating to the protection of inventions provides under Section 7.4 " Patents shall not be granted:(b) for animals or plants other than microorganisms and essentially biological processes for the production of animals or plants, but this prohibition shall not apply to microbiological processes or products or products of such processes; and for diagnostic and surgical methods for the treatment of humans or animal"

This implies that Pakistan has excluded from patentability plant and animals under TRIPS opting for provision of a sui generis system or alternatively for PVP regime combining both sui generis and TRIPS as provided under Article 27.3(b).

With this option in view a logframe for National IPR System, in the light of contemporary national IPR regimes, for PGRs is proposed below:

Guiding principles: which in this regard need to be built-in are:

• Conformity with TRIPS

• Development of sui generis System

• Counterbalancing TRIPS with CBD [with in its framework]

• Establishment of [local] Central Registry

• Protection of traditional [local / indigenous] knowledge

• Food and livelihood security of custodian communities

• Documentation [protection] of national gene pool

• Risk assessment

• Safe-guards against GMOs

• Strengthening of [bio-tech] research capacity

• Conservation [preservation] and [sustainable] development of genetic resources

• Integration of environmental, agricultural and trade development [plans]

• Sustainable development [trade in genetic resources]

• Free but fair [shared] access to PGRs

• Mobilization of Communities [breeders]

• Prior Informed Consent [PIC]

• Benefit-sharing

• Technology transfer

• Mobilization of knowledge

• Investment in genetic resource development

• Technical and financial assistance [TRIPS provision] by industrialized world

A case study: Basmati rice

Basmati rice is a long-grained aromatic rice variety cultivated in areas of Northern India and Pakistan. Basmati is exported to North America and Europe and commands better price on account of its high quality. Two corporations in France and the US have been actively appropriating the high reputation of Basmati rice and are in this way threatening a lucrative market for India and Pakistan.

A food company called Establishments Haudecoeur La Courneuve has been granted two French trademarks using the word ''asmati': 'Riz Long Basmati' and 'Riz Long Basmati Riz du Monde' (Economic Times 1998), and a US company called Rice Tec has for several years been selling rice in the US and the Middle East under the name 'Texmati' (Dasgupta 1996). Although this has caused great irritation in India, the germplasm was freely and legally acquired by Rice Tec from the International Rice Research Institute (IRRI) in the Philippines (CSE 1996) prior to the entry into force of the CBD.8 Neither Rice Tec or Establishments Haudecoeur La Courneuve have any benefit-sharing obligations to India and Pakistan under the terms of the CBD (even if the US were a Party).

Further outrage in India and Pakistan was provoked when it was revealed in early 1998 that Rice Tec had been awarded a US patent entitled Basmati Lines and Grains. Among the various claims are for 'novel rice lines, whose plants are semi-dwarf in stature, substantially photo-period insensitive, high yielding and produce rice grains comprising characteristics and qualities similar or superior to those of good quality Basmati rice grains produced in India and Pakistan'.

The Indian and Pakistani governments are considering how to protect an export market upon which many thousands of farmers depend. They could appeal to the US Patent and Trademark Office to revoke the patent on the basis that the ''invention'' described in the patient is spurious, or try to make use of the TRIPS provisions on geographical indications to have the trademarks revoked on the grounds that they are misleading to consumers and/or harmful to the reputation of Basmati rice. Initially, India raised the possibility of challenging the marketing of US produced ''basmati'' rice as a violation of TRIPS.

However, TRIPS does not require a member to protect geographical indications unless they are protected in their country of origin (Article 24.9). But once India and Pakistan have passed an appropriate law, retrospective action becomes possible to prevent firms in other countries marketing rice grown outside the Indian subcontinent as basmati. However, India and Pakistan still have much to gain from taking prompt legislative measures, because a geographical indication system can have retrospective effect.

For example, Cypriot rivals to the sherry producers of the Jerez region of Southern Spain were for many years allowed to call their product 'Cyprus Sherry' (sherry being an English corruption of Jerez). Now the same product must be labeled as 'Cyprus Fortified Wine' if producers wish to export it to EC countries.

(The author is national coordinator on WTO in Pakistan Agriculture Research Council Islamabad)