41. The representative of Bolivia said that its afore mentioned communication addressed the need to conduct a thorough examination of Article 27.3(b) of the TRIPS Agreement in order to ensure that plants, animals and all life forms and parts thereof were excluded from patentability. He said that discussions on the review of Article 27.3(b) were not in conflict with the discussions being conducted on the disclosure requirement. On the contrary, Bolivia's proposal aimed to complement this important initiative by deepening the analysis of the problem relating to Article 27.3(b) and patentability of life forms. The approval of the TRIPS Agreement and in particular Article 27.3(b) triggered a "race for patents" on plants, micro organisms, genes, genetic sequences and so forth, the main objective being to profit from the monopoly rights that the system granted on the pretext of promoting innovation. The review of the provisions of Article 27.3(b), which was supposed to be conducted four years after the entry into force of the TRIPS Agreement, had yet to take place. It was essential that, in the framework of that review, the Council urgently conducted an in depth assessment of the ethical implication and the concrete impact of Article 27.3(b) and of patents on life forms.
42. He said that Article 27.3(b) permitted the patentability of all life forms and parts thereof, and of biological processes. Moreover, on the basis of an artificial distinction between plants and animals on the one hand, and micro organisms on the other, and between essentially biological processes on the one hand, and non biological and microbiological processes on the other, Article 27.3(b) required countries to permit the patentability of certain forms of life and certain biological processes. Article 27.3(b) encouraged the adoption of national laws that permitted the patenting of plants and plant varieties as well as plant genetic resources, including cells and parts thereof, such as genes and gene sequences, genetic resources of animals and micro organisms. According to the information available, up to the year 2000, only five years after the entry into force of the TRIPS Agreement, more than 500,000 patent applications had already been filed for genes and partial genetic sequences of living organisms, and more than 9,000 for human genes.1 From 2000 to 2003, six times as many patents on animal cells and cell tissue had been registered than during the period 1990 2000.2 In 2001, there had been already 918 patents on rice, maize, wheat, soybeans and sorghum.3
43. He said that the patent system had turned into a tool for the privatization and commercialization of life itself on a scale and magnitude that warranted concern. Article 27.3(b) reflected a vision of nature as a raw material that could be privatized and sold, which was contrary to the cultural norms of many societies and peoples. Life was sacred for the indigenous peoples of Bolivia and of the world and under no circumstances should it be appropriated privately or seen as a piece of merchandise. Innovation and control of biological resources were concentrated in a few private hands as a result of the adoption of the TRIPS Agreement and of Article 27.3(b). The patentability of life forms had encouraged and enabled the private sector and major transnational corporations to take control of innovation. He said that, of the thousands of seed companies and public crop development institutions that existed 30 years ago, there remained only ten transnational corporations that controlled more than two thirds of world sales of seeds under intellectual property. Seventy per cent of the patents on the five main crops consumed in the world were held by six large agrochemical companies. Of nearly 1,000 emerging biotechnology companies that had existed 15 years ago, a mere 10 now accounted for three quarters of the revenue from the sector. Because it was possible to patent life forms, sectors as important to peoples as food, agriculture and health were coming under private control, and this was a matter of great concern for Bolivia. The resulting monopolistic control provided the capacity to define the type of technology used and to block research and innovation. This situation was particularly worrying with the proliferation of patents on genes and gene sequences which enabled entire segments of fundamental technology to be controlled.
44. The high number of patents on plants gave rise to serious concerns in the agricultural sector generally speaking, and in Bolivia in particular, owing to their impact on the use of seeds and access to germplasm for the reproduction of species and additional research. He said that the United Nations Special Rapporteur on the Right to Food4 had warned of this situation in his report of July 2009 by stating that intellectual property rights over plants, genes and DNA gene sequences directly limited the possibilities available to farmers for innovation and created an imbalance between the private sector and the public sector. The most worrying thing about this situation was that the system enabled companies to control and take possession of the most important resources for innovation and traditional, conventional breeding, and throughout the food chain, adversely affecting prices and the availability of food, and potentially aggravating the food crisis affecting, in particular, small producers in countries such as Bolivia, whose practices were based on the right to harvest, store and exchange seeds with other rural farmers.
45. He said that Article 255 of paragraph II of the Constitution of Bolivia tried to tackle this problem when it stated that the signature of treaties shall be governed by the principles of respect for the rights of indigenous peoples, harmony with nature, protection of biodiversity and prohibition of private appropriation of plants, animals, micro organisms and any living matter for exclusive use and exploitation. However, there was not much that this provision could do if the main problem lay in the international system, and this was what had encouraged the Bolivian Government to move ahead with this initiative aimed at enhancing awareness of the negative impact of the provisions of Article 27.3(b) and of the need to correct them.
