Data exclusivity, seed patents, papers in June 2011

Reposting my two articles here in June 2011.

(1) Data exclusivity in the proposed EU-ASEAN FTA.

Last May 2011, there was a roundtable discussion between NGO leaders of the Coalition for Health Advocacy and Transparency (CHAT) where MG Thinkers is a member, and some convenors of the EU-ASEAN FTA (Free Trade Agreement) Network of NGOs. The main presenters were from the Focus on the Global South and the Fair Trade Alliance (FairTrade).

The FTA network NGO leaders are watching the proposals by the EU for the possible EU-Philippines FTA, on the aspect of IPR and medicines. They said that the EU wants a stronger data exclusivity agreement with the Philippines, like the patent period to start not from the discovery of the drug molecule, but from final approval and marketing of the drugs. I have not seen the draft agreement yet, it will be tackled in another round table discussion next month.

There was a proposal from a leader of Sanlakas, a militant labor organization advocating for socialism, that civil society groups should air for the “highest” form of protest like the outright abolition of the IPR system. Many NGO leaders in CHAT played a big role (me not included) in the passage of the Cheaper Medicines Law or RA 9502. That law simply amended the Intellectual Property Code (IPC) of the Philippines, not abolished the IPR system like drug patents. RA 9502 was a hard-fought law for many CHAT-affiliated NGO leaders and it is not possible, not wise, to just throw it away in favor of advocating for the abolition of IPR.

Notice that not a single local pharmaceutical company, from the biggest (like Unilab) to the smallest, advocates the abolition of IPR. I think all local and generic pharma companies recognize the value of new drug invention by the multinational innovator companies as a very expensive, high-risk, and very bureaucratic (dealing with Food and Drug Administrations (FDAs) endeavor. Thus, they respect the patent given to newly-discovered drug molecules by the innovator companies. They only wish that certain TRIPS flexibilities on IPR like the “early working” principle, compulsory licensing (CL), parallel importation and related measures be given to governments of poorer countries to allow such governments and local pharmas to deal with certain health emergencies. That is why RA 9502 was enacted into a law.

During lunch, I discussed with the Sanlakas leader my observation that there are two groups of people who support the abolition of all forms of IPR. The socialists or the lovers of BIG government, and the libertarian anarchists, or the lovers of ZERO government. Libertarians are supposed to be free marketers, to support private property rights. The main difference between capitalism and socialism is that the former supports and respects private property ownership of the means of production (thus, advocacy for private property rights) while the latter disrespects such rights and supports state and social ownership of the means of production.

But certain libertarian anarchists support only private property rights for physical and tangible properties (land, house, car, computer, cell phone, etc.) but not intangible or intellectual output. They consider ideas as “non-ownable” and private property rights cannot be conferred on ideas.

I have debated with some socialists and some libertarian anarchists on IPR . And I discovered that some libertarian anarchists are the most rabid, the most vocal, and the most passionate in the campaign for the abolition of all IPR compared to the socialists. It was a big surprise to me.

Well, I’ve been a Marxist-socialist (but never a Maoist) for a few years in the 80s, and very briefly was a fan of Michael Bakunin and other anarchists. So somehow I know how the minds of the socialists and anarchists work. Maybe, I could be wrong.

When the socialists call for the abolition of IPR as “non-property rights”, it is understandable because they are consistent with the abolition of private property rights of the means of production (land, machines, factories, offices, etc.). Drug molecules, song compositions, books and scientific papers, etc. are considered part of the means of production. So for the socialists, whether physical property or intellectual property, both cannot be granted as private property; both should be state and communal property.

The libertarian anarchists’ arguments for IPR abolition are four: (1) Ideas are non-scarce and there is no conflict among people when they use such non-scarce commodity, (2) ideas cannot be owned in the first place, (3) IPRs like patent, copyright and trademark, create monopolies, and (4) all IPRs are state-granted and issued.

My quick answer to all points above are:
(1) Bright ideas are scarce, idiotic ideas are not, they abound, and one proof is that governments around the world keep expanding.
(2) Ideas are ownable, bright minds who pursue molecular biology from BS up to PhD and post-doctoral degrees for instance, will pursue a full time career of producing nothing but ideas, they should be entitled to their own inventions.
(3) True that IPRs create monopolies, but not industry monopolies, rather, brand or product monopolies, better termed as “mini-monopolies.” One million rock songs, one million song copyrights, no problem; there is no single “rock song copyright.”
And (4) it is possible that IPRs can be issued by industry associations in the future. A system of reward and punishment can be implemented for respect or disrespect of IPR at the private, industry level.

It is funny how some anarchists would label other free marketers who support the IPR system, those who disagree with their brand of libertarianism, as “advocating violence”. For this dogmatic type of libertarians, there is only one truth of “peace” in this planet: THEIR version. I am not comfortable working with the dogmatists.

Meanwhile, I just read from the Property Rights Alliance that the Australian government is planning legislation that will mandate the removal of trademarks and logos of tobacco manufacturers in cigarette packages.  I have little or zero sympathy with smoking, but I recognize that people own their bodies. If they want to smoke and smoke, drink and drink, even if they know that it is not good for their health, so be it.

But I am not in favor of such proposed legislation in Australia — and soon, it will be introduced here in the Philippines and other countries. A company’s trademark and logo represents its identity. Remove the trademark and you remove its identity compared to other producers and manufacturers. The public then will have a hard time, or will not be able, to distinguish between the real and fake manufacturers. In addition, such proposal will also violate existing IPR laws, unless they will also amend their respective Intellectual Property Code (IPC) or similar laws.

(2) On seed patents.

One of the pet peeves of the anti-IPR groups and individuals, particularly the socialists and some anarchists, is the patenting of seeds — rice, corn, eggplant, tomato, many other vegetables and crops. The usual arguments given are that (a) IPRs create monopoly, (b) ideas are non-scarce, there is no competition when one person will use an idea discovered or invented by another person.

Let me give the example of the most important crop in the Philippines and many other countries, rice. The Internati onal Rice Research Institute (IRRI) has more than 112,000 different types of rice in its genebank. See theInternational Rice Genebank (IRG). And aside from IRRI, there are many other rice research institutions worldwide — academic, national governments, NGOs, etc. — that keep their own rice genebank too. See also the long List of rice varieties in many countries, from wikipedia.

Let us take the more than 112,000 different rice varieties in the IRRI genebank alone. I do not know how many of them were “natural” or “organic” varieties, and how many were products of biotechnology to develop certain properties, like drought resistant, flood resistant, resistant to certain insects, pests and microbes, and so on. And those rice varieties are patented. Modern science has allowed rice farmers, from small scale to corporate farmers, to develop high-yielding varieties with shorter harvest period.

If people are wondering why the population alarmism of “millions will starve to death” created by Thomas Malthus in the 18th century, to Paul Ehrlich in the 60s to 70s did not happen despite the continued rise in global population, the quick answer is rising productivity due to modern science and biotechnology. And the IPR system of seed patenting provides additional incentives to private corporations, private research institutes, even some public research institutes, to spend huge amount of money and engage the brightest minds in agricultural science, biotechnology, biochemistry and related fields.

So, as the number of rice varieties keep expanding worldwide, who has the monopoly of important rice seeds? IRRI? The UN? Is there a single corporation, or cabal of corporations, that monopolize all those 112,000+ seeds? Was anyone disallowed or disenfranchised from developing or inventing his/their own new rice variety?

Here are two examples of those more modern, more high yielding rice varieties introduced in the Philippines. I saw them in a rice farming village in Pangasinan. The farmers that I talked to said these seeds are expensive, P1,350 for a 5-kilos sack Pioneer hybrid rice seed (middle), and P600 for a 3-kilos pack of Agriseeds. But they have heard a lot and saw examples of their neighboring farmers who harvested about 2x the already high yielding variety that they were using for many years now.

I am not a rice farmer, so I do not know the difference in properties of these new seed varieties with the older varieties. I just took photos of the packaging. Here are the back labels of those 2 varieties above.


The embrace — and risk-taking — of small scale farmers of more expensive, patented rice seeds, but will significantly increase their harvest and income, is a good sign. The goal of farmers is simple: higher harvest, higher income.

Plant patent is 20 years from the date a patent was applied. I do not know if seed patent has the same procedure as drug patent. For the latter, the various clinical trials and other R&D eat up 10 to 13 years of the 20 years drug patent so that the actual marketing and higher price period is only 7 to 10 years.

Once the plant or seed patent expires, other seed developers, corporate or academic or NGOs, can use the off-patent seed variety for propagation to more farmers. The rest of humanity benefits from the expensive research, the risk-taking, trial and error efforts by the innovator companies and scientists.

The continued demonization of the IPR system and the individuals, entrepreneurs and companies who seek IPR protection because they already spent huge amount of resources for the expensive and risky R&D work to develop ever more high yielding seed varieties, from rice to corn to vegetables and fruits, is often driven by emotion and not reason. When socialists attack those innovator corporations, it is understandable because socialists simply hate private corporations who make profit, because there is “labor exploitation” involved, because there is “price gouging of consumers” involved. That is why they advocate the forcible take over and ownership of all means of production by the state.

When other free marketers however, attack private companies and individuals that seek IPR protection after they spent on expensive R&D and want to make high profit someday, there is inconsistency in their advocacy of the free enterprise system. If they hate private ownership of inventions, if they want more socialized, more collective, more communal ownership of inventions, to my mind, that position is closer to socialism.

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