(Sangeeta Shashikant) – The Draft Regulations for the implementation of the Arusha Protocol for the Protection of New Varieties of Plants fails to elaborate a mechanism for operationalizing Article 4(1) of the Protocol on the right of a Contracting Party to object to the grant of plant breeders’ rights.
The right to object is a critical outcome that emerged out of intense negotiations preceding the adoption of the Protocol by Members of the African Regional Intellectual Property Organization (ARIPO).
Members of ARIPO are Gambia, Ghana, Kenya, Lesotho, Liberia, Malawi, Mozambique, Namibia, Rwanda, Sao Tome and Principe, Sierra Leone, Sudan, Swaziland, Tanzania, Uganda, Zambia and Zimbabwe.
The Arusha Protocol is a heavily contested instrument especially since it is premised on the 1991 Act of the International Convention for the Protection of New Varieties of Plants (commonly referred to as UPOV 1991), which was designed for the commercial agricultural systems prevailing in developed countries. Civil society organizations, farmer representatives as well as experts have questioned the relevance of such an instrument for the agricultural systems of the ARIPO region, whereby the farmer-managed seeds systems are prevalent. The majority of ARIPO Members are Least Developed Countries (LDCs).
During the negotiations one key concern raised in relation to the Protocol was over the impact of the draft Protocol on the sovereignty of countries, and the relevance and authority of plant variety protection (PVP) offices in the ARIPO region. In this regard a notable concern in the draft then was Article 4(1) which stated that breeders’ rights shall be granted on the basis of “one application, be valid in all the Contracting States” meaning that governments would have no say in the grant of the plant breeders; rights (PBRs) with regard to their respective territory.
Thus the draft Protocol proposed a harmonized and centralized system, but vested significant powers in the ARIPO Secretariat with regard to filing, examination, grant and administering of PBRs, stripping governments of any role in the grant of PBRs.
The possibility of adverse impacts on national sovereignty prompted several ARIPO Members to call for an amendment of Article 4(1) and to insist on the need for governments to retain authority to object to the grant of PBRs. According to informed sources, the ARIPO Secretariat was most resistant to making changes to Article 4(1).
Tense negotiations eventually led to agreement over a new formulation for Article 4(1) that is now reflected in the adopted Arusha Protocol Article 4(1) that states: “A breeder’s right granted under this Protocol shall, on the basis of one application, be protected in the designated Contracting States provided the designated Contracting State has not refused the grant”.
Following the adoption of the Protocol, it was expected that the Draft Regulations for the implementation of the Protocol would elaborate on the mechanisms for a Contracting State to refuse the grant.
However, a comment on the Draft Regulations by a group of civil society organizations monitoring the process point out “that there is nothing in the Draft Regulation to operationalize the right of a Contracting State to object to the grant”.
The comment further adds that, “This is a serious [and presumably deliberate] omission on the part of the ARIPO Secretariat” which needs to be “rectified”.
One clear implication of the failure to operationalize governments’ right to object is the strengthening of the role of the ARIPO Secretariat to grant PBRs, at the expense of the role, authority and sovereignty of governments. In the absence of explicit mechanisms, how will a government reject the decisions of the ARIPO Secretariat to grant PBRs that is applicable to its territory?
The Draft Regulations also do not expressly mention the right of a Contracting State to have access to the filed applications as well as to the technical examination reports. Timely access to the applications as well as to all examination reports should be a right of a Contracting State. Such access is also imperative to operationalizing Article 4(1) of the Protocol.
Mechanisms enabling governments to object to the grant of intellectual property are not novel in the context of ARIPO.
ARIPO’s major Protocols such as the Harare Protocol on Patents and Industrial Designs as well as the Banjul Protocol on Marks harmonizes the filing and examination procedures with the ARIPO Secretariat processing applications with regard to patents, utility models, industrial design and trademarks. However, under these instruments a government have the right to reject the grant of intellectual property with regard to its territory.
For example, the Harare Protocol requires the ARIPO Secretariat to notify Contracting Parties to the Harare Protocol when it intends to grant a patent. On receiving the written notification, a Contracting State has 6 months to object to the grant of patents. Where a country lodges an objection, the patent granted will not be applicable to its territory.
A similar system should be instituted to operationalize Article 4(1) of the Protocol.
A number of reasons underscore the need for clear and concrete mechanisms in the Draft Regulations for implementing Article 4(1) of the Protocol. The subject of PBRs is relatively novel in the ARIPO region. Thus the implications of implementing an extensive centralized PBR system such as the Arusha Protocol have yet to be understood.
The ARIPO Secretariat has almost no experience on the subject, including the examination of PBR applications. Even with regard to existing ARIPO instruments such as the Harare Protocol, it is reported that the ARIPO Secretariat lacks examination capacity. It has been criticized for granting patents to undeserving ‘inventions’, with significant consequences for inter alia public health. In fact, countries such as Kenya seem to have greater examination capacity and often object to the applications for patent granted by ARIPO, as allowed by the Harare Protocol.
Moreover, examination of “novelty” and “distinctness” (from existing plant varieties) would require knowledge of varieties including landraces existing in the ARIPO region. Such knowledge would usually exist at the national level.
Further there are differences in climatic, soil and other agronomic conditions in the countries that constitute ARIPO member states. For instance, a variety that shows uniformity and stability in Botswana, may not show stability and uniformity when propagated in Zimbabwe or Uganda. In such a case, the PBR granted should not be applicable to the territories of Zimbabwe or Uganda, as the prerequisite criteria for the grant of PBR has not been fulfilled.
These reasons highlight the crucial importance of Contracting States to maintain their relevance and authority in the examination and grant of PBRs.
Agriculture is critical to governments in the ARIPO region and thus it is only logical for Contracting States to safeguard and operationalize their sovereign right to object as recognized in Article 4(1) of the Protocol.
ARIPO Members should introduce text in the Draft Regulations that clearly outlines the rights of Contracting States in relation to examination and grant of PBR applications. Such text should:
(i) Operationalize the right to object by giving a Contracting State a specific time frame to lodge its objection to the grant of PBRs, following notification by the ARIPO Secretariat of its intent to grant a PBR. This proposal is in line with the approach taken in the Harare and Banjul Protocols;
(ii) Explicitly clarify that the application filed and results of examination of novelty, distinctness, uniformity and stability will shared with the Contracting State in a timely manner; and
(iii) Recognize the right of a Contracting State to undertake its own examination of novelty, distinctness, uniformity and stability, if it is dissatisfied with the examination reports produced by the ARIPO Secretariat.
[Note: For specific text to introduce in the Draft Regulations to implement Article 4(1) of the Protocol, see comments (pg. 5-7) on the draft Regulations prepared by the African the African Centre for Biodiversity and Third World Network, endorsed by the Alliance for Food Sovereignty in Africa (AFSA), available at https://acbio.org.za/comments-on-the-revised-draft-regulations-draft-3-for-implementing-the-arusha-protocol-for-the-protection-of-new-varieties-of-plants/]