PATENTS TOO EXPENSIVE FOR POOR COMMUNITIES

If indigenous people, farmers and communities in developing countries are worried about the biopiracy of their resources and traditional knowledge, they should take out patents on their property, some may argue. However, investigations by a UK-based non-governmental organisation show how costly patents could be and beyond the reach of communities.

By Chakravarthi Raghavan

Geneva: Indigenous peoples, farmers and communities in the developing world complaining about the 'biopiracy' of their biotic resources and the misappropriation of native plant-genes and knowledge through patenting by transnational corporations are often advised to protect their property by patenting and profit-sharing agreements with the foreign pharmaceutical corporations.

The September 1998 issue of Seedling - a quarterly newsletter published by GRAIN (Genetic Resources Action International) - shows how costly this could be and beyond the reach of communities.

The United Kingdom-based Gaia Foundation, an environmental non-governmental organisation, was approached by a Namibian NGO seeking advice on how to protect current and potential uses of a local plant, and Gaia's investingations showed how absurd the idea of patents is for this.

Patents, it found, are predominantly 'national rights'. So a US patent is only valid against infringing conduct in the US. To obtain maximum protection, the patents would need to be taken out to cover a wide range of potential uses and in as many countries as possible. Patent enforcement is through civil courts, so the litigation costs fall solely on the owner. In addition, the burden of proof is on the owner to show that the patent has been infringed.

Preparation of a patent application varies between countries. In the United States it could cost between $10,000 and $20,000. In the United Kingdom the cost could be $1,600, in Australia $2,800-4,300, while in Europe for a European patent, it could cost $2,400-3,000.

There are also official fees for filing patents: UK $350; 10 European countries $4,500; Australia $500; 10 countries internationally through the World Intellectual Property Organisation (WIPO)'s Patent Cooperation Treaty $3,000 - excluding additional international and national examination fees.

Patent applications have to be filed in the language of the country - and translation of a 25-page patent application could cost on average about $1,000 per language.

And when a patent is granted, annual fees for a 20-year coverage have to be paid: UK $5,300; France $5,160.

There are also some variable and hard-to-predict costs of protection and challenges. According to a US industry observer, estimated protection costs over the lifetime of a patent could be $250,000. Others put the cost of a single litigation at as high as $1 million in the US and $600,000 in Europe.

The Rural Advancement Fund International, a North America-based environment NGO, estimates that it has already spent $50,000 in its challenge to Monsanto's transgenic soybean patent in a number of countries.

According to Seedling, one estimate of the costs of all these above suggests that for 10 patents covering a single invention in 52 countries, it would cost about $472,414 or half a million dollars.

'It is clear from these figures,' says the Seedling report, 'that there is no way a community in Namibia could possibly afford to jump on the patent bandwagon. The costs involved make patents the domain of the rich and powerful. Patents are specifically designed to protect investments in the development of new products, and only make economic sense if used to protect something with commercial value. Using patents to protect the Namibian plant makes no sense at all.' - Third World Network Features

About the writer: Chakravarthi Raghavan is Chief Editor of SUNS (South-North Development Monitor), a daily bulletin, and Third World Network's representative in Geneva. The above article was originally published in the SUNS.

1840/98

SouthsideTWNCAPPAN