19 November 2012

Wine GIs and Broccoli

'Geographical Indications and the International Trade in Australian Wines' by Michael Blakeney in (2012) 18(1) International Trade Law & Regulation 70-78 comments that
Australia has been regarded as a 'New World' opponent of attempts under the TRIPS Agreement to extend the European system of GIs protection to the wider world. It also joined with the USA in instituting a successful TRIPS dispute against the EU’s GIs procedures. However, the extensive Australian trade in wines to the EU has obliged Australia to embrace a European-style GIs system for its own wines. This article describes the evolution of the Australian – EU Wine Agreements of 1994 and 2009 and the consequential development of the Australian wine GIs system. It calls into question as over-simplified the Old World/New World dichotomy in relation to GIs.
Another perspective is provided in his 30 page 'Geographical Indications and TRIPS', which considers "the international negotiations concerning the extension of the special protection for the geographical indications for wines and spirits provided in the WTO TRIPS Agreement to agricultural and handicraft products".

Blakeney's 'Patenting of Plant Varieties and Plant Breeding Methods' in (2012) 63(3) Journal of Experimental Botany 1069-1074 considers
the relationship between patenting and plant variety rights protection, through a detailed analysis of the recent determination by the Extended Board of Appeal of the European Patent Office that methods for breeding broccoli and tomatoes were not patentable. It concludes that the right to patent agricultural innovations is increasingly located within a political context. 
Blakeney's lucid commentary states that
The determination of the EBA was that a process for the production of plants which is based on the sexual crossing of whole genomes and on the subsequent selection of plants, in which human intervention, including the provision of a technical means, serves to enable or assist the performance of the process steps, is excluded from patentability as being essentially biological within the meaning of Article 53(b) EPC. Thus the EBA confirmed that classical plant breeding is excluded from patentability. On the other hand, if a process of sexual crossing and selection includes within it an additional step of a technical nature, which step by itself introduces a trait into the genome or modifies a trait in the genome of the plant produced, so that the introduction or modification of that trait is not the result of the mixing of the genes of the plants chosen for sexual crossing, then that process leaves the realm of the plant breeding and, consequently, is not excluded from patentability. This principle applies only where the additional step is performed within the steps of sexually crossing and selection, independently from the number of repetitions, otherwise the exclusion of sexual crossing and selection processes from patentability could be circumvented simply by adding steps which do not properly pertain to the crossing and selection process, being either upstream steps dealing with the preparation of the plant(s) to be crossed or downstream steps dealing with the further treatment of the plant resulting from the crossing and selection process. The EBA noted that, for the previous or subsequent steps, per se patent protection was available. This will be the case for genetic engineering techniques applied to plants which differ from conventional breeding techniques as they work primarily through the deliberate insertion and/or modification of one or more genes in a plant.
It is important to note that the EBA disallowed the patenting of methods of plant breeding. It has been pointed out that the products of plant breeding remain patentable (Then and Tippe, 2011). An analysis of the examination reports for recent patent applications at the EPO indicate that claims in relation to the breeding of plants would have to be deleted, but that the plants themselves [sunflowers (see note 18) and coreless tomatoes (see note 19)] were patentable. Because of this, civil society representatives have ‘a clear legal prohibition on granting patents on plants and animals, on processes for breeding, relevant biological material and the food derived’ (see note 20).
This litigation emphasizes for plant breeders and botanists the political dimension of their activities, which had hitherto been treated as a matter of technical science. The environmentalist NGO, Greenpeace, is cofounder of ‘No Patents on Seeds’, and has taken the lead in building public awareness of the issue. Similarly, the NGO, ETC Group, has led a campaign over many years opposing the ‘patenting of life’. An illustration of the strength of feelings on this issue was the destruction by Greenpeace activists in July 2011 of a GM wheat crop being grown at a government experimental station in Australia (see note 21). The attack followed the refusal of a Freedom of Information request for more information about the trials. The GM trials were part of experimentation into the development of drought resistant crops. Underpinning the opposition to this science is the concern of NGOs that the independence of small independent farmers and breeders is threatened by powerful life sciences corporations.
A 2008 study by the ETC Group identified 55 patent ‘families’ (see note 22) (a total of 532 patent documents) that were applied for and/or granted to a number of biotechnology companies on so-called ‘climate-ready’ genes at patent offices around the world (ETC, 2008). Its 2010 update of this study ‘examined patents containing claims concerned with abiotic stress tolerance (ie traits related to environmental stress, such as drought, salinity, heat, cold, chilling, freezing, nutrient levels, high light intensity, ozone, and anaerobic stresses’. It noted a dramatic upsurge in the number of patents published (both applications and issued patents) related to ‘climate-ready’ genetically engineered crops from 30 June 2008 to 30 June 2010, identifying 262 patent families and 1663 patent documents. The 2010 report of the ETC contrasted the ownership of 9% patent families by public sector institutions (9% of the total) with the private sector which holds 91% of the total. The 2010 report points out that ‘just three companies — DuPont, BASF, Monsanto — account for two-thirds (173 or 66%) of the total’. This level of market concentration gives cause for concern for those who espouse the positive role of competition, but also a concern about the sort of biotechnological research which is undertaken. For example, to what extent will the dominance of private corporations in biomedical and agricultural research direct that research towards Northern concerns away from Southern food priorities. It has been estimated that only 1% of the research and development budgets of multinational corporations is spent on crops of interest that would be useful in the developing world. Almost entirely neglected by these corporations are the five most important crops of the poorest, arid countries — sorghum, millet, pigeon pea, chickpea, and groundnut.
This disputation over the patenting of the products of plant breeding, as well as plant breeding methods themselves, emphasizes the increasingly politicized environment in which experimental botany is occurring. Current research into the influence of climate change upon the development of weeds, insect pests, and crop diseases and the ways in which plants can be engineered to withstand salinity and aridity is increasingly going to be undertaken in a political context.
The Canberra Greenpeace activists (or eco-vandals) noted by Blakeney have meanwhile received nine-month suspended sentences for destroying a CSIRO genetically modified wheat crop. The activists had destroyed the crop in July last year; Greenpeace then sought publicity by contacting the ABC and releasing vision of the protest.  Greenpeace has since paid more than $280,000 in compensation to the CSIRO.

Penfold J in the ACT Supreme Court indicated that the action was motivated by deeply held beliefs and altruistic intentions but the law had been deliberately broken. She criticised Greenpeace for allowing two junior staff members to be exposed to the consequences of breaking the law.

Greenpeace reportedly responded that the two activists knew what they were getting themselves into.
"The crop that we targeted was one that we had cause to believe would be used in trials, including human trials. We were very concerned about the lack of transparency around that trial," .... "As the judge noted, we have made a number of Freedom of Information requests in the month leading up to our action, seeking further details about the trials and the CSIRO refused to provide that information to us."
Mr Pearson says despite the charges and fine, the conservation group would not rule out undertaking similar acts in the future.
"Look Greenpeace will never resile from undertaking acts of civil disobedience, we simply will not do that. We won't walk away from that now or in the future," he said.
"It's not a matter of saying would we do that particular action again, it's a matter of whether we would engage in civil disobedience again and we certainly will if we believe it's necessary."
Ben Pearson says while it is a large amount, Greenpeace members will continue to support the organisation. "Well Greenpeace paid it on behalf of the activists in recognition of the fact that they had, while undertaken the activity in their own personal capacity," he said. "Greenpeace supporters give us money exactly because we undertake these kind of activities, because we actually physically stand up to environmental harm and those causing it.