I'd like to make a couple of comments about our discussion this morning. I thought this morning's discussion brought out a lot of very interesting and important issues, and I hope we can continue to explore those issues this afternoon and then later on talk about how we might continue to work together on them in the future.
As we do that, I suggest that we emphasize points of common ground as much as we can. I think that because we have such different perspectives as environmentalists and as experts on intellectual property, we may sometimes perceive differences to be greater than we might think. For instance, I doubt that any of the environmentalists here believe that innovators should not receive any return on their investment in their innovations. They may, however, have questions about the scope of protection, of proprietary rights an innovator is entitled to. And if that's true, then I think that we environmentalists and intellectual property experts are not so far apart. I heard Karl say that some very thoughtful people in the intellectual property community are concerned that the pendulum may have swung too far towards too broad protection over certain types of intellectual property. So I think that often we may be talking about the same questions but just working from different traditions, and I hope that we can figure out how to enrich our work by combining these traditions. One other point. When we move on to new legal ground like the Biodiversity Treaty, we all discover that we're having to look at familiar questions in unfamiliar ways. As environmentalists we now have to think about transfer of biotechnology from industrialized countries to developing countries. We also have to think about how to structure another flow of information, that of genetic resources, which in many cases flow from developing countries to industrialized countries. In particular we are faced with the question whether there should be some sort of proprietary rights over such genetic resources, just as there are proprietary over many flows of technology.
These are new questions for most environmentalists, and they force us to think about some broader issues of social policy, and I'll give just one example. If environmentalists promote the biodiversity treaty - and the trade in genetic resources that is one of the treaty's objectives - as a way to promote conservation. I think that they have a responsibility to consider all of the social consequences. If one of the products of that trade, for instances, is some new form of technology that allows industrialized countries to produce tissue cultures of basic commodities that are now produced by poor countries - and this is one possible future biotechnology - then I think environmentalist need to consider whether they want to promote such trade and resulting technology, which could cause major economic dislocation. If industrialized countries could, for instance, manufacture all the rubber or coffee they needed through mass production by tissue culture in industrial facilities, one consequence of that development could be that millions of farmers in developing countries no longer have a job. And that's the sort of social and economic impact, we as environmentalists should be concerned about as we advocate policies. Intellectual property experts also should ponder these issues, as they too will be involved in structuring this sort of trade and very likely the implementation of the Biodiversity Treaty. When it comes to that sort of broader issue, many of us are facing something new that is outside of our ordinary disciplinary interests, and I'm hoping that we can face those new questions together. Thanks.
H. WALTER HAEUSSLER:
I have a few random points that I think will help us in our consideration. First of all, I think that there's a need for an honest-broker organization that helps bring strangers together, helps in looking more south, looking for partners. Because there's a basic distrust that's gone on for a number of years. While you are strangers, it's hard to talk to each other, because you're not sure what you're hearing is necessarily true or appropriate. Somebody sits in the middle who's trusted by both sides and moderates the first meeting, and says 'you should listen' or 'you are wrong' or 'you should consider...' It helps the discourse. It' s hard to hate someone you know, but until you know them it's sometimes difficult to have a useful discussion. So there is a need for an honest-broker to sit in the middle early. Another point that I have is it's nice to talk about new paradigms that are going to solve the world's problems, but at the end of the day there are two sources of money, public and private. Private money generally looks for profit, public money you are selling very long-term programs where politicians get elected every two or four years and you are competing with welfare mothers for the same dollar. And therefore you must learn to sell your ideas to politicians in ways that are palatable and they in turn can explain to voters. Therefore no matter what paradigm you dream of you ultimately have to figure out who's going to pay for it and how it's going to be paid for. The next point I have concerns the unrealistic expectation of payment source countries sometimes think of, 'gee whiz, billions of dollars are going to be made and therefore we expect to be paid hundreds of millions of dollars up front'. There are few billion dollar markets. Royalty rates are much lower than are believed, the present value of a product 20 years out versus keeping the money in the bank and growing interest means that the front-money for building infrastructure in a private deal between a company and a source country is not usually that large or available. Therefore if you are talking about infrastructure building you may have to go to national or international sources of funds to help jump-start the relationship. Later, once the product is closer to the marketplace, the private relationship may continue the relationship, but I think early there's frequently a need for international funds to jump-start. The fourth point that I have is the separation of title versus rights. I think sometimes the international community gets far too much bogged down in who has title to intellectual property. At the end of the day, the question is who has the right to develop and who gets compensation. And rights and compensation do not necessarily flow with title, they're a matter of contract. So consider where you want to be at the end of the day and figure out how to get there. Don't get bogged down on title issues, if there's another way to solve the problem. Another point I made earlier today was the difference between freely available and free. There may be a good public, moral, international need to have technology be freely available, but the developer of the technology still may require compensation and that may be the most difficult and creative thing that has to happen is figure out a way where the holder of the technology is to be compensated, while the world benefits from the technology. I think we as, if you will, specialists, presume that everybody knows what's going on, or should know intuitively, but these are issues that are not intuitively understood, and I think we have to work at creating education modules, separate education modules, for politicians, for scientist, for lawyers and for business people, and unless you have all four of those groups involved in the decisionmaking process at any of these issues, you will fail, because it requires all four of these groups on board in the source country and in the first world country to make it happen. If you leave any of them out, you'll fail.
KATE MURASHIGE:
Let me begin by just stating the reason that the American International Property Law Association.[AIPLA] got into this whole issue. AIPLA used to be just a sort of patent lawyers' union and now it's expanded to include other forms of intellectual property protection as well. The reason that this group has taken a interest, especially in the Biodiversity Convention, is that it appears that intellectual property rights offers the most familiar mechanism for encapsulating the resources that are available from biodiversity so that benefits can be distributed in some kind of a reasonable way. As I may have remarked earlier in public, but certainly in private, there's really no commonly recognized mechanism to compensate the people who are sitting among biologically diverse genetic materials, in a similar way we are used to compensating OPEC for instance. These genetic resources are resources that can be extracted once and stored in a database and unless there is some mechanism to protect them, they can just be freely available after that. So if there is going to be a way to compensate, it has to reside in some kind of intellectual property protection, and that has to be fashioned in some way that allows whatever is being offered to become intellectual property. Whether or not the currently available systems for intellectual property protection are sufficient is the question. I think we've s een the patent system come up against various kinds of development of technology, most dramatically with the current patents on the human genome sequences that have gotten so much publicity lately. It is still unclear whether the patent system as we know it can be stretched to fit this technology. Can it be stretched to fit genetic resources?
Let me just use two illustrations. I believe that it was Dr. Buchanan, who mentioned earlier the CDC patent application on a virus extract from a Guayami Indian woman, and how that had raised some hackles, and how that application has since been dropped due to political pressure. But it would appear that the position of the Guayami leadership was twofold. First, this is not proper subject matter for a patent. Second, how are we going to be compensated for this contribution? To my mind the patent application offered a means for compensation because that would have allowed development of the results of this invention and perhaps resulted in some profits which could then be returned to the Guayami people. The second illustration is the controversy over patenting sequences in the human genome. My concern on that is not that there is a moral issue here. There is not. The issue is the fairness of the compensation. The real issue is that this is too much protection for too little effort. I think that's the perception that most people have and so, that's an instance of the technology developing too quickly for the system to accommodate it. So there are two considerations: the fact that intellectual property protection offers a means to encapsulate value and also making the systems keep up with the technology.
JAMES BUCHANAN:
Just a comment about the Guayami Indian patent. It was dropped because Roffi brought the woman the Department of Commerce and confronted them with her. And it 's not clear that they have officially dropped the patent, it has simply sort of receded from sight. So I'm not sure whether it has or has not been dropped.
I want to contextualize just my few comments, first of all within the comment I made earlier that I think that a study needs to be done of intellectual property rights as they exist within the UNCED documents versus how they exist within the GATT documents. A full comparison of that I think would be very revealing about where we are with IPR and what the two sort of programs are on the table right now. And maybe one of you law students would like to take that on. It would be a nice project for somebody to do.
The second comment that I want to make has to do with what I, and I know a number of others here and elsewhere, perceive as a shift that is going on that is moving us from an industrial age into an information age and what the implications of moving into an industrial age are. The first and most obvious aspect of that information is the newest commodity on the worlds' markets. And there is no doubt that it will be an increasingly important commodity in the worlds' markets. The question that I hear being raised again and again here is how the new lexicons, these new social and legal lexicons are going to be established. What's going to count as information, as thus be ownable, and what is not going to count as information and thus not be ownable. And it goes into the problem of traditional knowledges and everything else, some of the issues that have been raised this morning.
The other point that I want to make about the shift into the information age, and to tie this into the problem of conservation, has to do with the reclassification of nature in an information age; is that Nature itself, the concept of Nature which has been a relatively stable concept as the concept of species has been a relatively stable concept for us throughout the modern period, are now destabilized concepts. Nature has, in an age of genetic engineering, Nature has virtually no meaning whatsoever as a stable concept. Species becomes a very fluid concept as well. Now you can make what you want to of that as a social value, but it is certainly one of the questions that is a background question to genetic engineering that as a country or as a people or as a world, we need to be asking of whether we want to just rush forward with a technology that is introducing such destabilizing factors. One of the ways you can think about this is using chaos theory. Some of you know about chaos theory, as you get into complex systems, very small changes can, in fact have very dramatic effect within those complex systems. You begin to fool around and do genetic therapies within a human genome where you in fact begin to develop models of what a perfect human being is going to be. And we're, in fact, beginning to do this all over the world. A new law was just passed in China in which they have now established a list of diseases which are identifiable through genetic markers which will no longer be allowed to be transmitted. If you have a fetus and that fetus is diagnosed as having those genetic markers, you will be forced to abort that fetus. Okay. So that we are moving into a period of eugenics here. And I think we need to not be afraid of that word because that is where we are going.
The third, the final point has to do with conservation. What do we mean by conservation? There are three models of conservation. The one that is brought out in the UNCED documents has to do with the location and identification of a species within an ecosystem. To preserve a species, you preserve the ecosystem. We could call that the organic model. The second model would be an industrial model. And the industrial model says that as long as you preserve one representative of that species in a theme park or a zoo, you are preserving the species. We now move into the third option here which is the cybernetic model of conservation, which says that all you have to do to preserve a species is to preserve the DNA chains, the DNA codes in that genetic structure. Gene banks are being established all over the world right now and their main rationale is that they are preserving the species. Now one dimension of this is the Human Genome Diversity Project, not the Human Genome Project, but the Human Genome Diversity Project. Here they are going around genotyping indigenous people from all over the planet and they are doing this under the rationale that they are preserving those genotypes for posterity. Now, my only question is just what kind of values of conservation does this kind of thing reflect? And I will leave you with a quote from Albert Einstein, who said with the splitting of the atom, everything changed except the way we think. And I would suggest that with the opening of the genetic age, everything has changed except the way we think.
CHARLES ZERNER:
I would like to follow James Buchanan's eloquent analysis of what I was attemping to articulate in my previous comments concerning hypernature and changes in our relationship to nature. Buchanan alludes to several kinds of changes that are informing our conception of the natural world and our construction, materially and intellectually, of the idea of nature. I would like to draw attention to current views about the natural social world and the nature of seeds, and see how changing views of the integrity of seeds and social communities relate to the same changes that James has alluded to in his eloquent comments. I'm going to draw, in the scholarly tradition of free exchange of information, on the work of two of my colleagues, Stephen Brush and Paul Richards, a cultural geographer who's an Africanist. It was Stephen, at a previous conference, who drew my attention to the hydridity of what I formerly assumed were simple organic unities, seeds, in nature. In a paper that he presented at a conference on Intellectual Property Rights and Indigenous Peoples, he follows the genealogy of the wheat seed, or wheat germplasm that was extracted by American occupation troops from Japanese fields, post World War II. This was the dwarf wheat gene developed over centuries by Japanese farmers, carried back to America and within a few decades, after its marriage with several other wheat varieties, accounted for more that 56% of the wheat grown in American fields. At first blush, this story of Daruma wheat appears to embody the very kinds of genetic theft that some populist critics of corporate extraction of resources have lamented and critiqued over the last decade. It is to Stephen's great credit as a consummate researcher that he probed the genealogy of Daruma, which was the basis of Norin 10, one of the more spectacular performers in the green revolution. Through Brush's genetic genealogy, we learn that the Japanese wheat variety was scarcely a single, indigenous unit. Rather, it embodied a complex history of travel, exchange, and incorporation of information from many societies. Daruma contains genes from wheat varieties in Eastern Europe, varieties that were brought over to America by Mennonites. These varieties in turn were carried to and mixed with the germplasm found in Japanese fields.
This story stands for the proposition, if we think of it as a legal case or a constellation of facts about genetic reality, that those entities that we've assumed to be unitary, original, indigenous, and bounded, may in fact be the by-products of centuries of exchange, a complex and cosmopolitan flow of information across national and ethnic boundaries. It is inaccurate and romantic to assume that there are indeed isolable, pure varieties of genetic unity, which must become the basis of conservation prog rams. The parallel, of course, to the notion of indigenous seeds, is that of indigenous peoples or indigenous societies. This is a very politically hot and controversial topic. I would maintain that it's precisely because we're at that point in history where our capacity to manipulate and construct new forms of nature, this capacity has given rise to an intense nostalgia, a projection, if you will, a longing for societies that embody some kind of natural unity, coherence, spacial locatability. In an era of intense movement and boundary-crossing - of genes, persons, ideas, money and hybridity, nostalgia for lost unities, including communities, is very high. Within this context, the idea of an original, indigenous community with clear boundaries is very seductive.
I would like to close my remarks by saying that, although "tribal" and "indigenous" peoples have been historically the victim of much negative state policy and marginalization, we need to ask ourselves whether it's a viable, productive form of discourse to constantly be referring to indigenous communities when they themselves, like the seeds that Steve has described, have had a very complex history involving exchange and contact. There are no indigenous communities which arrived like the Phoenix out of the earth with their own cultures fully formed. This is a romantic fiction which should not be the basis for social policy.
WILLIAM HENNESSEY:
We're going to open up the forum after David makes a few remarks.
DAVID DOWNES:
Well, I had originally thought I would talk about the big picture, but after hearing James and Charles, I realize I didn't know just how big the picture was. So instead I'll try to put the questions raised by James and Charles, which I feel are very important questions -perhaps the most fundamental questions - in specific legal contexts. In particular, I'd like to discuss the Convention on Biological Diversity, which is one of the two big environmental treaties signed at Rio. The Convention now has over fifty countries as parties and has come into force as international law. Countries that become parties to the treaty will have to implement the general rules that the Convention sets up for what I've called at times the biodiversity trade, that is the transfer of samples of diverse organisms for commercial use such as use in developing new pharmaceuticals or plant varieties. The Biodiversity Convention says basically that there always has to be sharing of economic and technological benefits when genetic resources are transferred among parties to the Convention. Whenever samples of biodiversity are taken from a country and exploited elsewhere as "genetic resources", the user country has to send a share of the benefits back. And those benefits should include technology. But the language on this point is not clear, so the Treaty leaves a lot to be negotiated and figured out in detail.
One way of implementing the Treaty's general principles is one that Kate Murashige mentioned, which is to keep our intellectual property structure essentially as it is now - or as it will be under the Uruguay Round TRIPS agreement - but set up contracts with the source countries (or organizations there). Then when the exploiters in the receiving country develop new products they get patents themselves, and under a contract they send some negotiated share of the benefits back to the source country. That's one way we can work within the existing system to try and share benefits, and it will be very helpful to have intellectual property experts working with environmentalists to structure those transactions so they really involve fair sharing of benefits. These are really new kinds of transactions and it would be helpful to have a lot of different people contributing ideas on how they might work.
Now, but on a broader or deeper level, another way to implement these general principles would be to create new property rights, as people here have mentioned, new property rights for new rights holders, such as traditional communities or indigenous communities. These proposals raise all kinds of questions, for instance, can you define such entities and what kinds of rights they would hold, and how they would negotiate contracts? There again environmental lawyers like myself who are trying to grapple with these questions very much need help from the intellectual property community.
Finally, I'd like to note the very broad social issues that Charles and James mentioned. As we're doing more or less technical work, such as structuring contracts to share the benefits of using biodiversity, I think we have a responsibility as citizens of whatever global society we have, or at least of our own separate societies. As citizens, we have a responsibility to think about the broader social implications of what we are doing. In part, I think that means some historical study of intellectual property. Maybe I'm wrong, but it seems to me that there are still quite a few gaps in our knowledge of the impacts of intellectual property as it is now. But we also need to look forward as well as backward. I'd argue that all societies have been information societies, but if it's true that we are moving into an Information Age, and if it's true that information is becoming a more and more valuable and dominant commodity in our world, then we need to predict what kind of intellectual property is suitable for that world. We need to predict what intellectual property will do to our society if it stays the same, and what it would do if it were changed. On this level too, I think there are a lot of fruitful ways we can work together. Thank you.
STEPHEN BRUSH:
Perhaps the wisest thing I can do at this point is just be quiet after Charles' kind comments. I want to return to what Kate and Walter were talking about in the contexts of the Convention on Biodiversity. When we look to intellectual property as a vehicle, it is certainly a familiar one and one that we understand. But I think there is a problem in that as it has evolved since the 19th century, intellectual property provides a marvelous vehicle to simulate innovation. When we start talking about biodiversity, however, we have another goal in mind - conservation. I'm not sure that the model of intellectual property is as useful for conservation, and I think we should be attentive to its limits for stimulating conservation. We don't understand conservation behavior very well, as we certainly didn't understand innovative behavior at the beginning of intellectual property. I would guess that we would be coming up with some new systems, perhaps similar to the kind of material that Bill put together on trademarks, that move us away from the monopolist exclusionary principals that embody patents especially. In terms of the specific constraints to intellectual property for conservation, something that's been alluded to this morning, is the problem of market. Intellectual property itself does not create a market but rather the opportunity for a market. I think that many people have overestimated the market in biological commerce and that one of the dangers in overestimating is to believe then that the market should pay for conservation. If the market is insufficient, then we may find that we have indeed under-funded conservation. I can't leave without relating the analogy of the Fort Worth, Texas radio station that announced they had planted five and ten dollar bills in a library. The result was not an increase in book circulation in the library, but a mob that stormed the library and literally ripped books apart looking for the five and ten dollar bills. This is an extreme analogy, but we must be concerned with the preservation of the library, not just the people pulling books off the shelves.
KATE MURASHIGE:
I want to respond to that because what I'd like to say, when I used intellectual property, really what I meant was not necessarily the forms that we have today, which are, as you say, market driven and exclusionary. What I meant was that IP represents a way to define as property something that is not a tangible asset, but that comes out of someone's activities and effort. Clearly you are correct that the forms that we have now - even trademarks - are basically exclusionary tools that only work in a market driven economy and that perhaps is not the best paradigm for conservation.
WILLIAM KEEFAUVER:
I just wanted to follow up to David's plea to the intellectual property community for help, and suggest that's a good place to get help. Certainly from their experience in drafting and negotiating technology transfer agreements they learn very early on that a successful transfer agreement, by successful I mean it works over time, has clearly got to be win-win right from the beginning. And unless both parties see something in it to their advantage it simply is not going to work. And this requires you, when dealing with a transferee in another country to take into account not only local rules and laws but local culture and the like. Experienced attorneys who have dealt with such agreements have learned over time that you must spend enough time around the negotiating table, and it does take time. In fact, one of the first things I was taught in licensing is that it takes about one year to draft a good, workable agreement, because you really have to understand each other and have to understand all the components. And to come back to some earlier themes, many of the licensing components are only tangentially related to intellectual property. Intellectual property is a smal l piece, but often when you finish with that stack of documents - and God save the trees, the pile is often too high - it has to do with education and training and with myraids of factors that you probably didn't even dream of when you began the process. But it comes to a point, and I want to hear more about the agreement you alluded to because I think there are creative ways to contract and to deal with the compensation issue which is certainly important. If we just think intellectual property royalties, that doesn't get us very far. Certainly the intellectual property is often a convenient handle or peg to put the royalties on or to create a compensation structure. But I think once the person charged with creating the deal understands its total dimension, the compensation has to involve all the contractual elements, particularly as we get into the matters of environment. I believe that we can rationally achieve goals that will make both sides see a transfer as a win- win situation, which it has to be.
THOMAS MAYS:
Just a couple of real quick comments. In response to Janet's kind request to be more specific, I have distributed to the table and put copies back on the shelf where they can be available copies of the NCI model. I would just like to quickly respond also to Charles Zerner's concerns. I have a lot of respect for his very lucid insight and I propose what we are doing at NCI not as a cure and not as a perfect solution. We are engaged at NCI in a grand experiment and everybody's input will be very much welcomed and appreciated. But in this grand experiment, in trying to collect agents to cure cancer and AIDS, which is a very noble undertaking, we are also trying to be realistic in our benefit-sharing program and tech transfer, in our clause eight we do provide for Charles' concern with regard to hypernature or supernature. The terms I really like and with your permission I will use with attribution.
CHARLES ZERNER:
Copyright.
THOMAS MAYS:
Charles did suggest that as we move into the information age the data, the structure, the sequence whatever could be stored in a computer, what happens to the source from which it came. And we're hoping that the licensee in entering into the agreement with source country or NGO as appropriate will address these concerns. At clause eight we are hoping, and clause nine incorporating, that if the material is subsequently synthesized, but the lead compound came from a collection, benefits still would flow back. We'll wait and see if it works, and again I realize it's imperfect because this is tied generally to the patent mechanism and there is a limitation of time. After that patent is tolled, what then? I'm not sure what then, but at least it's a start. I am very grateful for the conference so that in networking anybody who has suggestions to make this ineloquent agreement better, I certainly would appreciate it.
JORGE DIEP:
This is in response to Mr. Buchanan's eloquent exposition about this problem. I think the main issue or the gist of the situation is sort of definition, we are talking of basic concepts on biodiversity, in that respect my opinion resides in the fact that the regulatory procedure, or the regulatory framework is necessary. Why? Because in that respect the government or governmental agencies must take a position not only to protect or preserve, they have to restore the eco-systems. It is necessary. I think in that respect the position of the environmental lawyers is to provide the correct adequate counsel in order to get the best technology to promote that idea, that concept. And of course the trouble in Mexico for example, we do have a very complex system where these definitions are located in the law, in the ecology law, however, nobody understands exactly how it's working, biodiversity. How to apply some concepts, some basic concepts in that respect is necessary to have more education, on the other hand, the government must promote that restoring point of view.
Not just to preserve, to restore the biosphere, I think is the gist of this situation and on the other hand I was thinking about the tax incentives for inventors in Mexico for example, even though the Mexican regulations are so complex and so well defined and so clear, we don't have any tax incentives for inventors, that could be a good solution for them. For example, we do have a great trouble with PCBs, we don't have the technology to destroy them, in Mexico it was very common to have PCBs like in the US, we don't have any incinerators and we don't have the technology to destroy PCBs. How to do that, to export them or just to dispose of them? That's a good question, and on the other hand we're talking about indigenous rights and how they are creating and inventing. For example thi s very tough question to the Mexican government, how to provide water, with so many waste- water discharges which are not treated perfectly or coming within standards. What to do, what are we suppose to do with that specific question. With what technology, we don't have it. We are buying it. I think, that's a big trouble in Mexico, about this.
JAMES BUCHANAN:
I agree that regulation is necessary, I think my concern is this, and it is why I contextualized it within either the UNCED documents or the GATT documents, if you only have a market-based approach to conservation then what's going to be conserved is what's going to be considered to have use value. If you take an ecosystem approach and restorative approach then you are in accordance with the UNCED documents, you are valuing nature in and of itself, and that's the language in the UNCED documents, nature and species have value in and of themselves, not just use value. Those are two very different orientations towards conservation, and I'm very nervous that if we take IPR and we only contextualize it within a market approach rather then in the other approach, what's going to be conserved is going to be limited to what has use value, within particular markets, contemporary markets and we may even lose what has use value in future markets, because who knows what will?
H. WALTER HAEUSSLER:
I think while what was said earlier here, that for U.S. industry, for first world industry, it is useful to tie deals around intellectual property; I think the corporate world is far wiser than doing business based upon intellectual property alone. There's a reason for a contract but there's also the business reason which goes beyond that. There was a statement earlier that information, somehow, once it is placed into the computer it becomes universal. We lose track that there's a source country obligation. I would point out that that's exactly wrong, that for years after World War II, the soldiers came back, as you pointed out, and brought the wheat back. Our pharmaceutical companies were sending people out around the world who were told to steal a sample and bring it back. This was the way business was done. But, without government regulation or a lot of pressure, I think industry has recognized that if they want to continue to do business in the world, they have to be a responsible world-player. So they've had this information in their databases and they have voluntarily gone out and said 'there has to be a new way of doing business and we have to recognize that we have to compensate'. So rather than the fear of the pendulum moving away from not compensating the source country, I think there has to be a lot of credit given to the people in the first world for recognizing this obligation and voluntarily undertaking methods of finding solutions to the compensation issues.
ANIL GUPTA:
I think the confusion which is arising about forms of payment is partly because the title of the workshop that is the ways in which IPR can help compensating communities. I have never had this confusion. For me it was very clear from the beginning since I got involved in this issue that incentives can be material or non material, and targets can be specific innovator and non specific innovator committees. Similarly, the time-frame can be short or long. The issue is whether the company which adds value to local knowledge provides a share out of it to the knowledge-providing community. you arrive at age combinations. Out of various combinations of compensation such as material-specific, material non-specific, non- material specific and non material non specific, and the IPR cover only one which is material specific, that's all. But there are three other combinations which are equally important and in fact in some cases more important, so that we may move toward the world in which need for material-specific incentives for people to be creative will go down. We want a world were people will like to be creative, not because someone is rewarding them but because to be creative is to be good citizen, to be a good human being. That is the long term direction we want to move toward after a hundred years maybe. But to say that no, that is utopia, maybe it is a utopia. But I can tell you lot of people with whom I have worked in local communities and whose knowledge I have documented and published, refuse to be even given a token gift we offer out of respect for what we have learned from them. They refuse. To them the act of putting any value on what they have shared is unthinkable. Yes, they remain poor as a result of keeping such an ethic. Now the question is moral, for that matter. If regions of biodiversity have high poverty and if several people in those communities have an ethic that prevents them fro m generating income through comercializing their knowledge, should we hold their ethic against them or can this ethic be compensated by instruments by which we will make sure that they will not become, what in our countries are called "unskilled laborers." The lowest income people in most metropolitan towns of the country come from hill areas, drought prone areas, forest regions, tribal regions, flood prone regions, etc. The poorest people in the cities come from here because it is in these regions that the employment opportunities are least because there is no value for the knowledge they possess - the skill of understanding nature and characterizing it.
Now I come to the next point. Many times it is very easy to point fingers at others and accuse everybody other than ourselves. I do not know how many of us, when we go to a store, buy goods which are of biodiverse origin. There are a lot of people in America who try to produce biodiverse apples, biodiverse oranges, tomatoes and so on, I don't think market places much premium on these goods. I would include all of us sitting here in the community which does not really care. Are we prepared to pay a little more for that? And I don't see how IPR can solve the problem which requires consumers' support at all levels. This means that unless consumers are willing to pay for maintaining diversity (which means products of non-uniform size, shape, color, taste, and smell, which will not be amenable to standardized production) we will not be able to conserve biodiversity. Therefore instead of having one column, one corner for all of the tomatoes, you will have several shelves for different kinds of tomatoes in the superstores. Imagine the cost of inventory, transportation, handling, disposal, cataloging, of biodiverse products. It is these costs which the consumer today is not willing to pay and unless the consumer is willing to pay these costs I don't see how biodiversity can be conserved. So I don't think we should look for shortcuts in IPR alone. IPR is one means to provide incentive to some people living near or around the biodiversity-rich regions. These people are creative and have either through traditional knowledge or contemporary innovation found new uses of this biodiversity, which can be commercialized after adding value or otherwise. I feel IPR can be an instrument only for this subset of people. But a lot of other things are happening around there, which are necessary. The second point I am saying is that consumer support for biodiversity is essential and we should not in our enthusiasm look for all answers in IPR, and ignore other dimension on which I have indicated. When I work with people at grassroots level I don't see how that is going to happen unless we change our lifestyles and consumption patterns. Another point which I think is also important deals with a list of various instruments I have drawn. I would request you all to kindly have a look at it and if you find time, read it, because there is a whole range of instruments we are talking about for possible compensation of the communities. Again I fear that IPR is only one instrument and that too for certain kinds of innovations. For instance, trust funds have not been given adequate attention, trust funds, risk funds, or guarantee funds could be very useful mechanisms to encourage people to be more creative than they may have been. It is a myth to say that everybody in the village is creative, no, they are not, and I can tell you for sure. Many of them are not creative, but some are, and more can become creative if there are mechanisms to encourage them to take risks and do experiments. And I think we need certain kinds of incentives for people to do that. Finally I would say about the way that the law is moving in the European communities, I am sure there must be some colleagues here who know more than me, but European community law is moving towards standardization of the sizes below which an apple or cucumber can not be sold. Which essentially means that this law is leading markets to put premium on uniformity, rather than diversity. Now this I am talking of 1992-93 European Community agreements. On one hand you have European law which is moving, steadfast, towards preventing Denmark marketing their own apples, because French apples meet the required size and Danish apples happen to be smaller and therefore cannot be sold. I would suggest that there's a need for a follow up of this meeting to look at the emerging trends in various agreements or laws or treaties other than Biodiversity, GATT, in which movement is towards standardization creating disincentive for biodiversity. Because far too much attention has been given only to these two or three agreements and we are ignoring the other legal instruments which are doing much greater damage to the biodiversity. Thank you.
MICHAEL GOLLIN:
In a sense, we're talking about a process that's five hundred years old and longer, of establishing new trade routes to promote trade in new commodities. And in this case we're talking about genetic resources. Past experience, especially in the 15th and 16th century, of course was extremely destructive, but there was also an element of adventure and discovery of new forms and modes of interaction.
I think that we're looking forward to something like that now in the sense of creating a biodiversity trade. We should be cognizant of the fact that this is a window of opportunity that may close very soon in terms of trying to define the terms of that trade and setting the routes out in a way that may not be as destructive as they might otherwise be. I'd focus on one point in particular in that regard, and that is directly related to the issue at hand here, what is the influence and role of intellectual property rights in this arena? It would be too easy for someone like myself and for colleagues in the intellectual property community here, to think narrowly in terms of the laws that we've had in our society since the horse and buggy days and so on, and that we've adapted and retooled as need be in our communities. It's a fine time to explore other approaches, as Charles Zerner has said. There are different communities, different standards. We should be paying very close attention to the kinds of interactions that Anil Gupta is talking about and we should spend as much time, I think, trying to understand how different communities respect the intellectual efforts of their members in trying to strike deals on our terms. And to that end, I make a couple of requests: one that yes, we provide a source of assistance, pro bono, and otherwise for communities who need assistance in negotiating deals in the biodiversity trade. But more than that, I think that we need to take a very close look at these bigger issues, not how to strike deals on our terms, but what other types of rights should we be including in those deals.
CHARLES ZERNER:
I wanted to build on a term that I learned from David. Several months ago, I called David up and asked him to explain some provisions of the Biodiversity Treaty to me. He's our resident expert on the east coast on the Treaty, at least mine. One phrase that he used captured my imagination: he described the treaty as a "grand bargain", or perhaps a pair of grand bargains. One of the bargains that is being rewritten or reconstructed, of course, is the bargain that regulates the terms under which living resources, biological resources, are extracted from biologically diverse countries. What is returned? And to whom? Indigenous communities? Individuals? Nations? Global Trust Funds? We now need to broaden the terms in which we conceptualize this redistributive bargain. The very notion that this new bargain is only applicable to indigenous communities is far too limited a conception. There are many kinds of impoverished communities, living on the forests and reefs of the tropical world, which continue to be and will be biological "source countries" for at least a few decades before the era of hypernature really moves into phase. What is needed is an attempt to shape more liberal, generous terms of the exchange of resources. Whether it's the creation of trust funds, whether it's the creation of contracts that recognize national needs for transfer of training or of infrastructure for screens that can search and assist the activity of compounds for tropical disease, drug development, or whether it's more Balkanized visions, to use a freighted term, for return of benefits for particular communities, whether they are indigenous or not.
The geographer whose work I alluded to last time, Paul Richards, has done some remarkable work in Western Africa. Richards has found that the communities living in the most biologically diverse forests of the Congo are not communities of indigenous people. Far from it. They are raw youths that are participating in revolution, hyped up on drugs that come from an international drug trade, in fact, it's a community of outcasts and opportunists who have no other regions than the biologically diverse, remote borderland forests in which to hide. We need to think about their needs too. If we want a more enlightened policy about how to preserve the biodiversity in these problematic border lands, then we need to think beyond the romantic fiction of the Rousseauian native. There are all kinds of communities in need out there.
STEPHEN BRUSH:
I want to return to Michael's comments about trade routes. Certainly we are entering into a new era of trade routes in biological diversity and there are new vehic les to facilitate that trade and to provide equity on both sides. We run a danger though, in overlooking the existence of established routes of exchange. I fear that it is, that we are creating a bandwagon effect for contracts as the solution to the movement of biological resources. This new mode might do violence somehow to the older trade routes which involved open access and the public goods treatment of biological resources. This is true not only within countries, but between countries. I worry about what will happen to plant collectors, say, from the USDA or from the Ethiopian Plant Genetic Resource Center who go to other countries to collect biological resource for which they are not sure what the use will be. They may not be able to sign a specific contract that promises benefit, or they may not have funds to pay up-front money to a local group that says you can't collect unless you put up this money. In forming these contractual relations, we should pay attention to the larger trust that has existed in the past and to make sure that we figure out ways to support it. I think Walter's comments spoke to this also, that there certainly are new trade routes and trade vehicles. Let's make sure that those vehicles help maintain systems that have proven to be very effective in the past.
ANIL GUPTA:
I just wanted to get back now to some implications of an idea in the Biodiversity Treaty which requires some light, and I would appreciate some advice on that.
Article 15.5 talks about prior informed consent. And the implication is that this prior informed consent has to be between the contracting parties, and these parties are the governments which signed the agreement, not the communities. The prior informed consent is necessary for accessing any biodiversity. But prior informed consent can be enforced only in those countries which have a law requiring prior informed consent. No developing country today has a law which requires prior informed consent as yet. I am pleading with my government, and maybe will succeed, but I do not know. But this is an issue that many times people don't appreciate that many of the provisions of Biodiversity require enactment of laws in their respective countries. Just as effective sui generis systems requires, laws to be enacted by each government having signed GATT which has to be in conformity with UPOV78 (I hope, and not UPOV91), but nevertheless there has to be some kind of consistency, but not necessarily all of it. So the first issue on which legal experts will have to help is how do we generate instruments of prior informed consent, what are the conventions, what other kind of cases that we have by which informed resolution of this kind can take place. That is question number one. Question number two is the question of prior art. [FPLC Professor] Chris Blank told me a few days back that there was a case where a thesis on a particular problem, lying in a library but not catalogued, was not considered a case of prior art. This was a very helpful case, I would like to have a copy of the judgment because this makes it possible now to suggest that knowledge lying with a community but not accessed and cataloged is not a case of prior art. Those people in that community know about it. What I'm trying to hint at is that legal experts have to help us in digging out such precedences and such cases which can be used and drawn upon to chisel the providences of TRIPS. These cases will help one to come out with more forceful but legally tenable procedures, because I don't expect the U.S. government to change 150 years of patent law just like that. But if there are cases which exist which can be invoked to generate new analogies and new metaphors, I think it might become easier for us to nudge the system towards a more sympathetic view of farmer's rights. Another problem arises in terms of the operationalization of the TRIPS particularly in respect to sui generis system. Most of the places, at least in the draft Indian Act on Plant Variety that I have with me, it is suggested that companies or breeders may if deemed appropriate consider sharing with the community which provided the source material for breeding a part of the profits, on the principles of ethics and equity. Now, I've reworded the language. It's a long paragraph. It's very difficult for us then to understand, why shall the intellectual property laws provide that compensation can be given only if deemed appropriate? I'm just raising these questions on which I have very limited knowledge, I do not have enough knowledge of law, but I would appreciate if, in the not too distant future, some light is thrown on these issues to be resolved in the next few months. Because our parliament is going to discuss this law in the monsoon session which begins in July. Thank you.
SUSAN BASS:
I'd just like to respond to your request for information on other countries that are developing laws on access to genetic resources. Right now the Andean Pact members are also under a very tight time frame to develop a model legislative framework on access to genetic resources. They are working with the Environmental Law Center of the International Union for the Conservation of Nature. I would suggest if you haven't had an opportunity to talk them about the types of issues that they're considering in the model legislation, you could talk to them about it.
ANIL GUPTA:
Well I have been in touch with them and I would just mention that they do not have in their possession the acts of different countries.
SUSAN BASS:
This is true in that The Andean Pact countries are just now developing this legislation.
H. WALTER HAEUSSLER:
Well, Anil, you raise an interesting question about getting the lawyer to help you to understand appropriate means and those kinds of language, because most of these international conventions are written with deliberately vague language because that's the only way that they can get 150 countries all to agree to sign it. And so a lot of this left to determination is deliberate, if you read it you can't understand what's going on, so that each country can interpret it their own way and live with it. That's unfortunate, but that's the reality of this international convention, so they lend moral judgment and lead direction but they don't give answers, unfortunately, most of the time. To follow up on what Stephen said, it's interesting the international gene banks now, who collected material years ago, have the problem of their sovereignty in these genetic materials which they received 50 years ago from a country. What obligation do they have now to go back and get permission from the country before they release it to a Bristol-Meyers or to a Merck or to a Monsanto?
STEPHEN BRUSH:
My understanding, if I can respond to the query, is that the Biodiversity Convention doesn't specify place of origin but place of location as sovereignty, so that genes that are in the national seed depository in the United States are sovereign property of the United States. So we owe nothing to the countries from which they came. This comes back somewhat to Anil's point, in terms of prior art. Charles has been eloquently talking about the dangers of trying to define prior art in a world as fluid as the one we live in. The fluidity certainly has a great value to us. Again let me caution that we need to look toward our objectives. Certainly equity is one goal, but I would ask that we pay attention to conservation as another goal. How, for instance, does establishing prior art affect conservation behavior in local communities. I don't know that we can assume that that connection exists.
ANIL GUPTA:
Yeah, first to this last point that you said. The connection between the resolution of prior art and the conservation is in the following way, I didn't say that last time but I can explain it. One is that if you have identified herbs or a plant of economic use, you may extract it beyond a sustainable limit, and thereby a knowledge which was not in the public domain, by being brought in the public domain, either through the idea route or through the publication route could lead to the non-sustainable use of the resource. That is one possibility. And it does happen in many cases, in India and other countries, where the herbs are extracted by the companies, both national and international, beyond their sustainable limits. Second and which is linked with the first, many times the communities which used to use these herbs for their own survival, for their own needs, are prevented from using them for some very interesting reasons, such as enactment of wildlife sanctuaries and parks. This is happening in America as well. Several American Indian groups have protested that they are being prevented from using certain things, which were part of their rituals and whatever because they are no longer able to go and collect these things from the protected parks. So this problem is not unique to developing countries, it is also happening in America. These are the two ways in which the definition of prior art in public domain can influence conservation adversely, just as it can influence positively if it provides incentives to people not to use that herb excessively because the value addition is very high. Assignment of value depends upon the patentability of knowledge. If local knowledge is not considered prior art, incentives for its protection exist and technologies for extending more value from small quantities may be developed by the companies. In the absence of such rights, the value adding te chnology will not be developed and hence excessive extraction of the herb in question will take place, affecting conservation adversely. So if you can get from one leaf a value that could be obtained from one quintal of the same leaf, you are not required to collect one quintal. That is what science and technology can do and that is where I see a possibility of bridging two knowledge systems. It may look strange, but I personally believe in this and I would like to try that out. But one more small point that I wanted to make was about the issue that was raised a little while earlier, whether the IPR way of compensation can address other needs of the conservation. My point was that we need to bring back in the issue of generating resources for the communities which can invest these in whichever way they want. In the absence of such resources, people will be forced to degrade the biodiverse resources by using them in a non-sustainable manner because of short-term survival needs. I think we should definitely recognize that possibility. Thank you.
JAMES BUCHANAN:
I have a question that I'd like to ask the IPR people here. One of the things that we face with biotechnology and genetic engineering is the release of geomorphs or genetically modified organisms into the environment and the possibility that these will have tremendous impact on biodiversity, but way down the line, 20 years, 30 years, something like this. One of the things when you release a geomorph in the environment, it's not something you can necessarily clean up, it becomes part of the natural environment, you have eco-systems that are very stressed already in terms of their carrying capacity, you have laboratorially advantaged or artificial advantaged genetically modified organisms in the environment and therefore, the possible long term impacts on biodiversity within an eco-system are simply unknown. Under present law, what is the long-term liability for the patent holder of that geomorph, in terms of potential impact, and if there is no such liability, should there be some kind of liability.
THOMAS FIELD:
I don't see any liability. Maybe there ought be, but, as Mike was saying, we can't predict the future. Normally, one is not liable for harm they can't anticipate.
WILLIAM HENNESSEY:
Should they be?
HOWARD STANLEY:
The liability to the extent it exists has nothing to do with whether or not they have a patent.
H. WALTER HAEUSSLER:
Well it's not the patent holder but it's the person who introduces the product into commerce that would probably have the liability. Sometimes it would be the patent holder and sometimes it would be a licensee, but again it could be a third party.
JAMES BUCHANAN:
I'm more talking about the experimentation level as patent holders, release genetically modified organisms into the environment simply on an experimental basis, would or should those kinds of people have liability and again it's nothing we've ever had to confront before.
THOMAS FIELD:
What you're talking about is strict liability for ultra hazardous activity. If an activity is deemed ultrahazardous, you are strictly liable, you engage in such things at your peril. Aside from this, truly strict liability is not a very common. Strict liabilty means that no matter what harm comes or whether you foresee it you're liable.
Of course there's another problem - whether the person who's likely to commit harm is capable of compensating in the event that it occurs. This raises issues well beyond the "legal" system.
WILLIAM HENNESSEY:
You're an insurer.
THOMAS FIELD:
Yeah, but you have to have money to pay when it comes time.
JANET McGOWAN:
If it was a corporation, you could sue them under products liability law, which is a strict liability statute, and hope you have a big corporation behind or good insurance company. If I were a property owner and you released these organisms and they came onto my property, I could sue you for damages just the way if you let your cows run across, break through the fence and destroy my property. I can sue you for that. So I think of it as like lead paint, asbestos, the Dalkan shield cases. As a corporation you're responsible for what you manufacture, and genetic engineering is just another type of manufacture process.
THOMAS FIELD:
Strict liability generally isn't really that strict. For example, the only time we have strict liability in product liability is in regard to manufacturing defects. This doesn't really fit here very well anyway, because you're not selling something. I think negligence law is more appropriate. Should you have foreseen that something was going to get out of the laboratory? You don't even have a commercial product yet. You're oblig ated to take measures to prevent harm that you should perceive. If you should foresee it and don't take appropriate measures, you are liable. Still again, I think there's a serious problem whether you've got the money. It's said that Mrs. O'Leary's cow kicked the lantern and burned Chicago. Mrs. O'Leary might or might not have been liable, but it really doesn't make a lot of difference if she lacks the means to pay for the harm that resulted.
HOWARD STANLEY:
I'd just like to follow up. It's really not the question of whether the particular person that happened to introduce the product is or is not a patent holder or even if there's a patent involved in it. The issue is whether or not some person introduced something that caused damage and that thing that caused damage in fact will cause liability to arise under the laws of the state where it was introduced or where the damage occurred. So it really is a function of law that has nothing to do with patent law, it could be anyone who introduces something that causes damage and normally in most states, if you're negligent you clearly will be held liable for that damage and in some states, if you introduce something regardless of whether you're negligent or not under strict liability you're held to be liable even though you were not negligent.
WILLIAM KEEFAUVER:
At least if you get a jury trial.
JEFFREY KUSHAN:
Well my comments have pretty much have been taken care of by Howard, and I was going only open it differently by saying that this is an example where somebody's imbuing patents with characteristics they don't have. Patent rights are developed and derived as an effort to protect some investment as an effort to gain a competitive advantage, they are not the research, they are not the entity, they are not the thing that companies care about. The thing that a company cares about is the technology, the products, the things that are going to work their way into the marketplace, and that should be the focus. Lots of times, you can take and substitute "technology" or "product" into a statement someone has made, and all of a sudden it becomes much clearer where their concern lies. It's not necessarily the fact that somebody's going to be able to patent something, it's more a concern with whether or not somebody's developing something and taking action or behaving in a way that's going to cause damage.
ROBERT SHAW:
Ryland vs. Fletcher involved a coal mine and water went down into the coal mine. The law as I remember it was that if you bring onto your land something that is apt to cause harm, you are liable for the harm which might happen because of the thing that you did. It's not all harm that you are liable for, but only harm where there's a causal connection between what you did and the harm that is ultimately done. And this, then, has to do with strict liability; that's where the strict liability came from, as Tom said. With respect to the deposit of a thesis in a library, about 20 years ago there was case in which the Court held that a thesis which was neither shelved nor catalogued (but merely deposited), was not prior art. There is a more recent case, I'm not sure whether it changed the law or not...
ANIL GUPTA:
Which is the recent case?
ROBERT SHAW:
There is a recent case.
JANET STOCKHAUSEN:
I think the recent one is In re Hall [781 F2d 897, 228 USPQ 453 (Fed Cir. 1986)] Where it was catalogued. . .
ROBERT SHAW:
The one I remember was shelved but not catalogued and they said that was not prior art. That was 20 years ago.
KATE MURASHIGE:
There was a recent case, In re Cronyn, [890 F2d 1150 (Fed Circuit 1989)] and one of my former partners won it. It had to do with a student thesis at Reed College, in Oregon. As I recall the records of a student's thesis that was used as a reference were kept in a shoe box. The court held that this was not sufficiently accessible to the public in the kinds of information systems that people would ordinarily use to constitute prior art.
ANIL GUPTA:
This is a recent case?
KATE MURASHIGE:
Yes, it's about three years ago.
WILLIAM KEEFAUVER:
It's one of the fine points of the proposed patent harmonization treaty, on which there was disagreement between the United States and the European Community. In the European community, at least it's spokesmen argued strenuously, anything in a library would be prior art. But the United States wanted to tag on the condition that it had to be properly indexed and accessible. So there's no world-view of prior art as to a thesis in a library.
THOMAS FIELD:
I think it depends on whether the community regards itself as an economic entity. You can have a trade secret even if 50 people all know it, assuming they are in the same economic entity. For example, if village A is developing technology it regards as the property of the village, and no one would ever tell a member of village B, then their technology is not publicly known or used. Such people need to understand that if they tell anyone in village B or village C then that would constitute public disclosure that would bar a patent.
WILLIAM HENNESSEY:
Could you expand that in terms of village A, B, C being an entity, is there any limit to what you see there as the perimeter? For public use purposes.
THOMAS FIELD:
I could even see villages A, B, C all being an extended family, vis a vis villages D and E. It's like a corporation with many laboratories and many people in the laboratories. People in four or five different branches of the same entity can share information without its becoming public.
WILLIAM HENNESSEY:
Those who practice patent law are under a duty of candor to the patent office to bring to the attention of the examiner any and all prior art which is within the knowledge perimeter of the inventive entity. And in those cases where it is a corporation -- and I think it's a problem for large corporation -- the knowledge in one part of the corporation may be imputed to the entire corporation. I believe that if you have a large patent department, it's imputed that you know everything that every one of your patent attorneys is doing in connection with the patent office. Is that the case?
HOWARD STANLEY
I don't think so.
ROBERT SHAW:
Best mode is now a problem as you know. There's a decision in the district court in which the court held, at the district court mind you, within the last two or three weeks, in which the court held that best mode is the best mode known to the inventor. The court held that there was knowledge here of another mode, but the inventor did not have that knowledge and they did not impute that knowledge to the inventor. [Glaxo, Inc. v. Navopharm Ltd, 28 USPQ.2d 1126 (E.Dist.N.C. 1993)]
So that information is known, only if known to the inventor.
STEPHEN BRUSH:
The language of corporation has been used in reference to villages or tribes. Indeed, when we actually go to these places we find incredibly fluid borders and much sharing, and the people themselves in those places understand that fluidity, a term I've used several times. Introducing the concept that compensation will be due based on some definition priority will slam down the doors of this exchange between villages and open up tremendous competitions. This will translate ultimately into transaction costs of one village suing another village as to whether its art was prior or not. We should look very carefully at the possibilities of negative ramifications in places that don't participate in these kinds of dialogues and may be fooled by the sense that there is a lot of money to be gained by setting up a barrier between themselves and their neighboring villages. And then hire lawyers to protect that barrier. For a minute I thought it was a full employment plan for anthropologists, but I think it's probably for lawyers.
CHARLES ZERNER:
Thank you. I feel like I'm appearing in amicus brief, drawing heavily on Stephen Brush's scholarly work. I am intrigued by this notion of corporate entities of villages A, B and C. I'm intrigued because what it sounds like is we're still assuming that there are coherent, socially and culturally homogeneous villages out there, somewhere, outside of the boundaries of the developed world. I don't know where these lines are drawn, because we know that these lines change throughout history and through the decades anyway, but somehow there's the assumption that there still is an outback, maybe it's in Arkansas, perhaps it's somewhere beyond the boundaries of Western Europe, the United States, and Japan, that still has corporate villages with spacially and socially definable boundaries, and perhaps little markers that we can analogize to clear corporate structure. I would like to suggest that the law, which is in some ways a social science and a humanity, catch up with the findings of contemporary cultural anthropology: most villages in the "out there" are all tuned into satellite dishes and flows of information as well as persons moving across national boundaries. We are living in an era of social mobility, hybridity and disruption, of migration and flight across borders. Conceptualize it as an immigration problem: information and persons are flowing through the world and from the village to the city, at unparalleled rates. What this does to the theory and analysis of the local social scene is to pull the plug on the notion of clearly defined corporate entities - villages - in which we can vest a legal property right. I'm a New Yorker. In New York there are more Greeks than there are in any other place in the world, besides Greece. This is true for many other ethnic communities which live in diasporic formations throughout the world. If we are going to talk about vesting property rights in coherent, remote villages called village A, B, and C, then we have to understand or at least problemitize the question of what happens when three quarters of the young village population has moved to Queens or moved to San Francisco because the jobs are better there? Moreover, they are not the slightest bit interested in conserving biodiversity in Queens, or perhaps their communities of origin. Are diasporic communities disenfranchised because they happen to leave what we romanticize as their roots in the developing world?
ANIL GUPTA:
Well I just want to say that many times we have committed what we call ecological fallacy which is to argue that something that holds true at macro-level must hold true at micro-level, too, and visa versa. I don't know what Charles Zerner is hinting at. I come from a village, my parents live in a village, I know it has a very defined boundary, I know it has a very defined and explicit bundle of entitlement. People who can use a common land are only the ones who reside in that village, others have to take permission. I don't know what he is talking about. There are millions of villages in a large number of countries which are defined with clearly defined rules, both moral and legal, so I do not know where this confusion is coming from. I do not know, the social disillusion that you talk about village rights belong to people living in villages, these rights must become exhausted simply because people move? Of course people move in the corporation too. People join, leave, transfer, resign, they are shifted, does it mean that the corporation loses the right to those inventions which people has participated in, obviously not.
CHARLES ZERNER:
We just heard that all information is legally imputed to all members of the corporation, it's held that information is evenly diffused.
HOWARD STANLEY:
I think Rule 56 under the patent rules in fact does not impute all knowledge of every member of the corporation to the individuals who may be prosecuting that patent application before the patent office. That's just not true.
THOMAS FIELD:
For some reason I'm reminded of the story of the fellow who moved to Vermont and lived there for 30 or 40 years. He then decided to run for office but was not elected. A neighbor told him that it was because he was not a Vermonter. He said to the neighbor that perhaps his children who were born in Vermont could be elected. The old Vermonter responded, "Just because a cat crawls into an oven and has kittens, that doesn't make the kittens into muffins." Still it often doesn't take long for people to be in an area before they are regarded as "us", rather than "them." I think that when we're talking about the development of useful information, we're talking about a fairly short time span - certainly not millennia. The fact that American Indians probably originally came from Asia really doesn't play much of a role in this kind of discussion.
GLORIA ISLA:
I have noticed that the fact has not been mentioned that while environmental issues are of worldwide concern, industrial property rights have a geographical protection limited to the borders of the nation or nations being part of an international agreement granting them. Through this I want to leave clear that an international set of environmental rules may be achieved, while rules regulating each country's intellectual property will have to be amended separately to promote and grant incentives to those inventing environmentally safe and healthy technologies.
WILLIAM HENNESSEY:
From the standpoint of another intellectual property practitioner, going back to Stephen Brush's point about boundaries with regard to inventorship and boundaries with regard to prior art, in terms of what I'm hearing Gloria say is that environmentalists act globally and intellectual property practitioner think locally.
HOWARD STANLEY:
To follow up on that just a little bit, I think it's quite true that probably the most of the intellectual property systems of Europe, the U.S., perhaps Japan and a few other ex-Commonwealth countries are very similar. But even within those very similar systems, there are vast disparities in terms of the ways in which the systems are set up to operate and the way in fact they do actually operate. Then there are many areas in the world which for all practical purposes there are no IP laws that have any bearing at all. So the idea of speaking as if intellectual property rights are a global body of law i s just absolutely incorrect, it's a mishmash of everything out there, in every country, and even in this country you get down to trade secret laws or a state law it's. . . we've got 50 different ones, unless we happened to have passed the Uniform Trade Secret Act. It's whatever a state says it is.
STEPHEN BRUSH:
That certainly is true. Although we've now just successively negotiated a GATT agreement, I'm not sure what the results will be in terms of creating greater global uniformity. I see some hope in the plant area in the UPOV, that countries will be allowed to develop their own sui generis systems. I question, and I'm not sure anybody can answer this, what pressure will there be for a uniform system of sui generis plant variety protection legislation in countries that now don't have them or that are very different from the UPOV convention.
H. WALTER HAEUSSLER:
Well, if you look at the history of intellectual property law generation in the area of plants and UPOV, tell me who controls the legislature in the country (whether it's the farmer or the industrial section of the country), and depending on that you will wind up with two separate laws, and two separate slants on the law. I think there will always be this issue of how far in the continuum the country is in industrial development, whether or not it is agriculturally driven, and whether it's in the best interest to the country to design its law for its own economic regime that it is under at the time. So I don't think there will ever be a uniformity in approaching plant materials because it depends on what the national goal is.
MICHAEL GOLLIN:
As a trustee of the Rene Dubos Center for Human environments I must rise to give credit to the "intellectual property" of Rene Dubos, who was the one who came up with the phrase "think globally, act locally." Unfortunately, his authorship is a fact that's not widely known but now everyone here knows that. The other point that I wanted to make in the context of this fascinating discussion of what kind of a community right might apply, with trust funds or some kind of taxation or some other kind of compensation, who would be entitled, and so on, I think that this is going to be a long and very interesting discussion, we're certainly not going to resolve anything on that today. I wanted to bring up something again that James Buchanan had said that these trade routes and this trade approach is not in and of itself sufficient for conservation. What we're really talking about is development, in doing the development part of it sustainably and as best we can. That trade should be done well and in an environmentally sound manner, but we must not forget that intellectual property and trade are not the only tools that we need to bring to bear on conserving our dwindling global natural resources. Of course, that is an area of environmental protection and conservation. We need to keep those areas in mind, although it may be somewhat outside the scope of this discussion here today. Because what were talking about is the interplay between the two. There is a lot of environmental law and conservation activity that doesn't really have anything to do with intellectual property rights, and of course there's a lot of intellectual property law that really doesn't have a whole lot to do with environmental activity, so we are talking about just that area of intersection between them.
KATE MURASHIGE:
Well, actually I think Michael summed it up pretty well, but I just wanted to try to refocus. As I understood the Biodiversity Convention, one of the ideas behind it was to create incentives whereby biodiversity would be preserved and sustainable, and environment would be preserved. That is really the goal. Intellectual property protection, in that context, is simply one of the tools, as Michael says, to achieve that. And I don't think we can ever assume that that's the only tool or vice versa that that's the only purpose of intellectual property rights.
ANIL GUPTA:
I would like to definitely hear Jeff Kushan on the discussion that Stephen raised about the pressure that is going to come on the governments, since we are confronted with super 301 we are under the pressure not from any other government but U.S. government, and therefore the opinion, even informally, will be very helpful to know. How much pressure is going to be from UPOV 1978 to UPOV 1991. UPOV 1991, incidently, to my knowledge has not been signed by U.S. government so far. UPOV 1991 is very restrictive in terms of farmer's exemption. UPO78 is far more liberal in the context of farmers' exemptions. So both farmers and the breeders' exemption under UPOV 1978 I am told, and I understand on authority of the people who are knowledgeable in this regard, is the basis for sui g eneris system, or to be more precise, effective sui generis system. And the word "effective" is creating lots and lots of controversy in our country. What is considered effective? The one that aligns with the intentions, the inspections of the U.S. government, because it is U.S. government because it has put the super 301 against us, or will "effective" be decided by WTO/GATT? Nobody really knows. I would like to know more about that. But I must say one thing at least, that to be fair to the system, I don't think any negotiation in the future by any superpower or any judgment by MTO will necessarily force us to move in only the way in which big business would like us to move, which means greater uniformity, much greater importance of monoculture. My own feeling is that with some modifications, for example, the sui generis system requires, under UPOV78, homogenous population or what one may call uniformity in the population as a necessary condition, i.e., uniformity and stability. Whereas we know that many of the land races are heterogeneous, because they are evolving populations. And they fluctuate and adapt in their changing environments, that is the reason they survive so long. They don't die if there is a drought or something like that. And populations of such genotypes or varieties, strickly speaking, cannot be protected under the sui generis system. So that is a case where, at least on my part, I am pleading with my government to change our laws. And permit protection to heterogenous populations with non- stability in the future, though, having consistency. This means that the stability should be seen over a 15-20 year cycle. If you look at it that way, there's a pattern to the population. What I am trying to say is, that the condition for homogeneity and stability which is required under UPOV 1978 can be maintained if you do not insist on year to year homogeneity. Which means, if you take a long time-frame of 20 years to 25 years, then you can distinguish one population from another through specific characteristics. Because in different years it behaves differently and there is a pattern to that behavior.
So, what I am trying to say is that sui generis system, the way it is being enacted in my country, and the way it is being enacted in other countries, really is subject to pressure from the U.S., which is what I am trying to understand.
GEORGE PRIMAK:
I am not really an expert in this area. I have seen the Convention on Biodiversity. There is only one small paragraph, I believe, that even refers to patents or intellectual property in it. Are we bringing up problems where there are none? I mean, I don't recall any problems in Canada being raised on the UPOV Convention, or on biodiversity. Really , we're trying to sell Durum grain to the United States and we encounter some problems in that. But, otherwise, does anyone have an example of a major problem in this area?
KATE MURASHIGE:
I think the problem is the silence you just noted in the Convention. The lack of apparent recognition that IPR is an important tool in creating an incentive for preservation is a problem.
ANIL GUPTA:
The clarification is that it saves I think in technology transfer, article 22 or 23, which deals with the technology transfer. Article 16. At least it says in one place. My recollection is probably in 21, but it may be 16 that notwithstanding other agreements aboout the technology transfer, it will encourage technology transfer from the countries which have superior technologies to the developing countries. "Notwithstanding" may be just one phrase, but it opens a Pandora's Box. Since GATT has an enforcement machinery which the Biodiversity Treaty doesn't have, the GATT will have, in my personal judgment, greater precedence of priority and power than the Biodiversity Treaty.
HOWARD STANLEY:
First a question for Anil. Are you referring to the part of the GATT TRIPS Treaty that says there must be a sui generis protection for plants? Is that the part that you are talking about? It has four years in which they're to renew it and decide whether or not they either have patent protection or some other kind of protection. That's what you're talking about. Okay.
In regard to what I believe this entire discussion is about, I thought that perhaps it would be worthwhile to read article 11 of the Biodiversity Treaty which I believe is what I thought we were talking about. And the issue is as follows, it says: 'Article 11, Incentive Measures. Each contracting party shall, as far as possible and as appropriate adopt economically and socially sound measures that act as incentives for the conservation and sustainable use of components of biological diversity.' And that's the entire article. And I believe what we are trying to do is decide whether or not either pre-existing types of laws in fact are the types of things which will give us those incentives, or if they are not, are there other ways in which we can develop, and certainly this treaty and everyone that's signed this treaty, now has the, not only the right, but the obligation under this treaty to pass those incentives that will lead to conservation and sustainable use of biodiversity.
ANIL GUPTA:
Article 16.3 says, and this is what I was referring to and I think this is what David mentioned: 'Each contracting party shall take legislative, administrative, or policy measures as appropriate with the aim that contracting parties, in particular those that are in developing countries which provide genetic resources, are provided access to transfer of technology which makes use of those resources (that means biotechnology) on mutually agreed terms, including technology protected by the patent and other intellectual property rights where necessary, through the provision of Article 20 and 21 (which are supplementary in nature) in accordance with the international law and consistent with paragraph four and five below' which give various exceptions. So this is the one where the problem arises.
JAMES BUCHANAN:
Just a quick comment on Kate's point and responding to George about IPR and the Biodiversity Treaty. What has to be realized is the background against which that is not there is that there was to be a biotechnology convention which was eliminated in the prep comps by the pressures of the bio industry. That had significant consideration of IPR. Also, in consideration of IPR relative to article 16, the limited amount that we have there, it's very instructive to look at the interpretive statement that the Clinton/Gore Administration has filed with the Biodiversity Treaty which is all about protecting the intellectual property rights of U.S. corporations. So that, in fact the silence is significant, but then the interpretive statement, even the silence was too much.
STEPHEN BRUSH:
I was hoping that Jeff would have something to say.
JEFFREY KUSHAN:
I was hoping that you would not notice me.
What you are asking really is a very peculiar, hypothetical question. We have seen a very long debate on technology transfer in the Uruguay round negotiations, and before that in efforts to revise the Paris Convention. This north/south debate has run for over a quarter of a century, probably more. The big questions for patent systems have been what should the standards be, and what are the proper restrictions on these standards. With the conclusion of the Uruguay round, you obviously have changed the floor, so to speak, on what the correct standards should be, particularly on protectable subject matter and permissable restrictions on patent rights. That's all I wish to say.
I was really half-joking and half-serious when I said it's an impossible question for me to answer simply because we don't know how countries are going to effectively implement their obligations under GATT. And we don't know when they are going to implement them. As you know, there is up to a 10-year lag time built into GATT for some provisions. That means that it is not going to be next week, it's not going to be next year that we will have a new international system. You're going to have to wait a fairly long time to see the true effects of GATT.
The more pressing concern really goes to what GATT does in terms of the minds of countries in changing their systems to be more receptive to technology transfer. Now, at that level you're not necessarily looking to the literal words of the treaty, but really looking to the concepts that the treaty embodies, especially that you will promote technology transfer by establishing market conditions that are going to facilitate technology transfer. And, so my first comment today was geared toward emphasizing that improving the structural systems of protection will allow people to cooperate. Erecting and maintaining systems in a logical way will be the most significant way that you can promote cooperation, promote agreements and promote benefit sharing. When you speak of technology transfer without the intellectual property rights framework through which technology transfer is going to work, it kind of leaves us puzzled. It leaves me puzzled I guess, simply because you are speaking of a hypothetical, and until you set up a system that makes the transfer of technology possible, it's always going to remain a hypothetical solution. You're always going to have to find some work around to the absence of intellectual property system. And once you set up a system, you're going to have one less thing to worry about.
I can't say anything about what we might do under 301, where we might take our next step. But by focusing on the larger question of what is the ideal system, what are the parameters we need to start setting up, you may have a more productive discussion.
WILLIAM KEEFAUVER:
I'm going to speak just a little bit beyond my knowledge, but certainly when the first draft of this article 16 appeared, or became known, it had much more devastating language in it, and that's what caused a lot of the furor. And the efforts to "fix" that, you can see more in paragraph 2 than in paragraph 3 where words like "where mutually agreed" got along with some words that were lifted largely from the GATT: 'shall be provided on terms which recognize and are consistent with the adequate and effective protection of intellectual property rights'.
For those of us who are used to treaty writing, this sounded okay. But some of the people who are closer to the biotechnology firing line weren't very comfortable with it and so the government had to put out a spin statement to try to keep things calm. And my personal view as a citizen is that this is very comfortable treaty language, and a lot of the smoke was taken away by those added words. Now it remains to be seen how other people will interpret it. As Jeff correctly points out, this issue didn't arise just two years ago. It started in 1976 I think in Laussane when the developing countries first enunciated in very clear terms what they would like patents not to do, particularly in their country. And that flowed through fifteen years of Paris Convention revision negotiations, and came up to some extent in the GATT, although not very much there. But again, in the biotechnology world, there were two problems with GATT. First, there was the permitted exception from patentable subject matter which affects some biotech subject matter, so again they got a little skittish. And then there is some ambiguity in the UPOV area on what happens to plant species and plant varieties. And then there is the recent UPOV revision, which most people in the United States, I think, thought was pretty good because it sanctified dual systems of protection. But there are a lot of unknowns still floating around, which together create the milieu, which has some IPR owners a little nervous. Whether they should be or not, I don't know. But they are.
ALAN MILLER:
If this isn't out of order, I wanted to go back to something that I had intended to mention after Stephen Brush's comment some time ago, as well as Anil's comment about their applicability in his experience in India. This is going back to the issue of the difficulties that might be created by injecting certain kinds of incentives in parts of the world that have functioned quite well in communal life-styles. The specific example I have in mind is a debate that occurred in the pages of the New Yorker Magazine last fall. The article described the efforts of some U.S. environmental groups to assist native Indians in Ecuador to negotiate the development of oil rights that the government had proposed in a reserve area. One source of controversy concerned who was the true representative of the native people's opinion in that area? I think that the issue is, to come back to Anil's point, not that there was a long established set of rights and understanding among people that live there , but that once these new economic interests were injected into that area that it created an instant, disruptive force that may never, in fact, allow that set of relationships to be put back together again.
I also wanted to make a totally unrelated but general observation if I might at the risk of repeating something at the end of such a long day. Earlier I heard concerns from some of the intellectual property experts here about their perception of an anti-
property bias in the attitudes of the environmental community about intellectual property; I think it is noteworthy that this bias has not been demonstrated during the course of the day. I don't think there is a consistent view toward intellectual property among environmental lawyers. Indeed, quite the opposite seems to me to be very clear, that for certain purposes there is a desire to have very strong intellectual property protection to achieve environmental ends. Where the issue is accelerating the transfer of technology and making it easier for developing countries to obtain state of the art technology, the issues may run the other way. I hope this point is made clear since I think that there is sometimes a tendency to think that if you are for the environment, then you are against strong intellectual property protection. I hope that has been clearly demonstrated to be false.
WILLIAM HENNESSEY:
We are about to move on to this next question which Alan Miller has just raised First, let's mentio n the Information Superhighway. We don't have a node here at the Law Center yet, but the Dean has made a commitment that in a short period of time, the Law Center would become a node on the InterNet. A proposal that the Law Center would make is that we would like to establish a bulletin board, if possible, where the issues that we have been discussing today could be continued. And of course that's, to go back to Kate's point, so that we don't burn as much jet fuel as most of us did getting here that way. We are going to try within the institution, given our technical capabilities, before the end of the year, to develop a billboard which will be accessible from wherever you are.
JANET McGOWAN:
I just have a request on the line of pro bono assistance. At Cultural Survival we get occasional requests from indigenous groups who are seeking to protect their names or a medicinal plant or a protection strategy for folk crops. These requests are sort of beyond the resources of our organization at this point. I'd like to, if anyone is interested in providing either direct pro bono help to a tribe, or just some advice, to create a general advisory council. If you are interested I would be very grateful if you could contact me or pass your card to me later. This is a field that is growing. It's emerging and I think there are some strategies I think we can work within traditional intellectual property law. We are talking about groups that really have very little legal resources but have a great interest in this type of protection.
WILLIAM HENNESSEY:
I wonder, Tom Field, if you could for a minute, talk about the Innovation Clinic which, Tom, you've been working here on for a number of years and maybe you could speak to what Janet was talking about. Just from a standpoint of what the school has done thus far.
THOMAS FIELD:
Well, when the Innovation Clinic started out, we talked to inventors, artists and what have you, but it quickly became apparent that most people had pretty much the same questions. I should add that we're not practicing law because we can't get malpractice insurance. So, since '76, I've developed a bunch of booklets on what trademarks, copyrights and patents are about. These have been distributed all over. As a matter of fact, I got a letter from the Peace Corps a week or so ago wanting to translate some of this stuff and distribute it in Russia and Eastern Europe. I would be happy to work on something for similar audiences elsewhere.
JANET McGOWAN:
Some of these requests come from groups in foreign countries and that is way out of my sphere of expertise. The other thing, I just wanted to tell you, there is a kind of EcoNet for IPR issues that's being discussed and I am completely blanking on the name. Is it CEID or CIED? David, you must know this. With Preston Hardison?
DAVID DOWNES:
It's a conference that I think is on EcoNet, which is linked to InterNet, and it's called something like INDKNOW . . .
JANET McGOWAN:
Yeah, and I can send information to people once I find it in my files.
UNIDENTIFIED PARTY
Indigenous Knowledge Network
JANET McGOWAN:
Yeah.
MARTHA TRAYLOR:
I have a proposal floating around in various places. Mainly I am going to give a synopsis of it at a meeting in Moscow in May. The meeting is sponsored by the University of Wisconsin Women's Studies and Environmental Studies. And my proposal is, I have been to several of the International Women's Meetings, and I'm so impressed with the strength and the beauty and the intelligence of the women from Africa and from the Third World. And several of them have asked me if there is any way that American engineers or scientists can help them. They are totally unfamiliar with our system. So my proposal is, I will start it and I will talk to these women and find out exactly what kind of technology they need. Now they need technology to use in their villages, they need technology to help them process the fish that the men bring in. They need water filters, they need cookers, this kind of very basic technology. And they say to me, "Don't you have any patents that will help us?". Of course we do, and they're sitting back there in the archives in our patent office in expired patents. Now my proposal is, I can go through . . . when I know what they need, I can go to the database which is already available in depository libraries, and I can probably pull out expired United States patents that will help them. Now this is what I think I can do.
Now the structure, the actual logistics of setting this up is still to come. And the people who are interested in it are saying to me, well we'll fund it if you'll tell us how you're going to do it specifically. And I am in the process of doing that now .
If anybody wants to help me, please let me know.
DAVID DOWNES:
I have a specific project coming up where I could really use some help. As Susan mentioned, the Andean Pact is considering developing guidelines on the rules of the Biodiversity Convention about access to a country's genetic resources. I have been asked to help out with a working group that's giving advice to the Andean Pact on this. When we have a draft outline of principles, I would like to be able to circulate that to people in this group who are interested. As I said, this draft will cover the access rules for genetic resources. Part of that could include proposals for new kinds of intellectual property for traditional knowledge, or for indigenous peoples' innovations. In the Biodiversity Treaty negotiations, a couple of Andean countries, Columbia and Peru, both wanted stronger language about protecting traditional knowledge as intellectual property than ended up appearing in the Biodiversity Convention. So that may be a direction they want to move in. Once you move in that direction, as Anil has discussed, all kinds of law and policy issues come up. For instance, as we discussed here, what is prior art in this context? Or, how long a term of protection would you have for these new kinds of intellectual property? How did we come up with the terms that we have now? I hope it wasn't entirely ad hoc. And if it was . . . okay, well in that case maybe we all have something to learn by thinking about those issues.
SUZANNE WATSON:
There were a couple of things I wanted to say. First of all, I would really like to continue working with a general forum like this in the future. Perhaps bringing, not only you all together again, but perhaps some other people that are missing at this point, who might have been here, who might have contributed. We might like to try to do this again in about a year from now.
I would also like to think about taking working groups from this gathering. Perhaps some specific geographical groupings could be formed, and to take a look at specific models out there. There are a number of models I know, that David and I have discussed. I know that he's got a list of potential models. ICOLP could be one of them. And take it apart, the pieces, and then an individual working group could bring that model here and teach us what that model might teach. If anybody has any ideas, let me know.
WILLIAM HENNESSEY:
I'd like to speak for a minute to some of the committees that work in this area in professional associations in intellectual property. The Licensing Executives Society formed their environmental committee just last year. Also, the International Trademark Association does have a committee which is responsive to requests from the community from the public or other areas of the legal sector about information concerning trademark law and practice around the world. The Education Committee of INTA has information packages about how trademarks work. And I would like to ask Karl Jorda, as the chairman of the Education Committee of the Licensing Executive Society, if you could say a few words about the education role.
KARL JORDA:
We have actually only one on-going project at the present time and that is to survey business schools to see what they do in terms of teaching licensing and technology transfer, because we have a suspicion that there's very, very little appreciation and consequently very, very little is done in business schools around the country. They need to do more, or start doing something because licensing is really becoming very prevalent. There used to be many corporations that didn't license at all, didn't license in or didn't license out, but there is nobody left who doesn't engage in licensing. LES would be prepared to field LES members to teach introductory courses or courses of longer duration at business schools on some basis. But first of all we have to find out if there is any interest on their part. That's our major project at the present time.
HOWARD STANLEY:
I believe LES is working with the United Nations on writing a technology licensing manual. Do we know when that's going to come out?
LEONARD MACKEY:
The short answer is no. The longer answer is, it has been written and edited and all that is now needed is some funds from UNIDO or some other source within the UN organization to go forward with the publication. So I would speculate it will be some time before too late this year.
Moreover, it is planned to be used at least as a partial basis for putting together a curriculum for a proposed licensing seminar in Moscow in September, which at this time is in the formative stages. UNDP is going to participate some. But right now it is a project with WIPO, with underwriting from LES USA and Canada and underwriting from LES International.
JANET STOCKHAUSEN:
At the risk of sounding like a page out of a public service announcement, I don't know how many of you are aware of all the research and development that the federal government is involved in the area of environmentally sensitive or "green" technologies. But in the recent budget that was passed, the National Institute of Standards and Technology was one of the few government agencies that actually got an increase in their R&D budget. And that was specifically with the idea that they were going to be the lead agency in the area of eco-technologies. EPA also got a substantial increase in the area of R&D with that same mission in mind.
I work for the Forest Service, and just in the last six months or year we've been told that ecosystem management is going to be incorporated into our mission and vision. So all of the R&D is supposed to be related to green technologies as well. I'm sure that will take some time for that to sort of sift down to the ranks, but I think that that will be happening. So if you have clients who are doing research or patenting things, it might be worth checking whether or not there is a federal government agency that's doing something related to it. There are also a number of databases that are available and if you contact me, I'd be happy to give you all of those sorts of connections.
The other thing I should mention is the Federal Technology Transfer Act passed in 1986 which mandates that all federal agencies attempt to transfer their technology out via patents as an effort to increase the economic well-being of the country. So there really is a thrust, and this new administration really seems to be very supportive of the Technology Transfer Act, generally and specifically in the area of eco-technologies.
JAMES BUCHANAN:
Along those same lines, there's an organization that was set up called the United States Asia Environmental Partnership, USAEP, which is basically a technology transfer mechanism for bringing environmental technologies into Asia. They've set up 33 offices throughout Asia. They have the initial funding, I think was one hundred million dollars, so it's quite well funded. Again, if you have clients or people who have environmental technologies and want to use this particular mechanism, I mean, it's basically a marketing mechanism for United States technologies, environmental technologies in Asia. Again, if you have clients who have appropriate technologies, it's another mechanism that you might use.
JOAN CLARK:
I'd like to just give you a few details of what AIPPI plans to do. As I mentioned, the subject of patents and protection of the environment will be considered, at least they're proposed to be considered. And I think it's a foregone conclusion that they will be voted on to be considered at the 1995 Congress in Montreal. And towards that end, working guidelines have been prepared which will be distributed in July 1994 to, I think it's 45 countries, George? 45 countries, each to the groups, the national groups in 45 countries, which gives a pretty good cross-section of the world opinion I would hope. And the questions will include whether there should be separate protection if there be problems in the individual countries, if in fact there be conflicts between patent protection and environmental protection, what kind of incentives, what kind of disincentives should be considered. And I believe there will also be a question on the possibility of a separate convention following, I suppose you could say following the Rio Convention. In other words, whether there should be a separate international convention dealing with this issue rather than amendments to the Paris Convention.
The working guidelines are, the drafts I've seen are very complete. As I say, they will probably be distributed in July of this year, following the Copenhagen meeting of the Executive Committee. And I would expect the groups would send in their responses before the meeting in Montreal, which is to take place the last week in June, 1995. And at that meeting, there will be a report of synthesis of the work of all the groups. And the large plenary session will be chaired by George Primak and we hope there will be a resolution resulting from that.
And I think that one of the interesting points is the AIPPI has been influential for it's history of nearly one hundred years, one hundred years in 1997, in influencing a good deal of international legislation. And in recent years its recommendations have been relied upon to a considerable extent by WIPO. So I am hopeful that this will result in something concrete. Of course it will relate only to patents. So that I guess the dates that we might consider here, you might consider would be that the working guidelines would be available, since they are sent to all the working groups, they'd be available I think in July, 1994 and then the result of the congress in 1995 would be available, I would hope, in July, 1995. We'd be glad to keep you informed of these documents as they become official.
ANIL GUPTA:
Don't get deterred by the long list I am going to present of what needs to be done. Because the reality is, we don't have much choice, we have to do all of those things. If colleagues would help, that would be great. But if not, our task will become more difficult. And if our task becomes more difficult, your task is going to become more difficult too.
Firstly, as David said, when we can cover only one issue, some today perhaps, but there are several other issues in TRIPS and the Rio Treaty which need considerable chiseling from the point of varying interpretations. I have seen the interpretation which the Environmental Law Center of IUCN brought out, which is very helpful. But again, it takes us a few steps forward, but not sufficiently. It doesn't provide case evidence on various interpretations as to which one is likely to hold more than others. So first suggestion that I have is that maybe to have discussions through bulletin board, which should be done as early as possible. Possibly in two weeks, which is not too difficult. Lists are available of what programs are in public domains, so setting up a bulletin board is not a big deal. It is very easy. And Preston Hardison in University of Washington can help because he runs two networks: one Conservation Biology Network called CONSBIO and the INDKNOW Network co-sponsored by SRISTI. So it is not difficult at all. It is very simple technology. The bulletin board could be a moderated bulletin board to begin with because there will be some questions which are of less general interest than others. A moderator would decide which one to put on the list and which one to reply on a one-to-one basis. So maybe some students can volunteer to begin with to decide which goes on the list side and which goes on the bulletin board.
The second point is that the interpretive commentaries on TRIPS, Rio Treaty and the European Community Law to me are very, very important. Unfortunately, I do not know why, it doesn't get discussed adequately. But to me it is very important because whether we like it or not, just like U.S. law is becoming like a standard for the developing world, who knows, tomorrow European law may become and that is much less progressive on certain issues but very progressive on other issues. On biodiversity it is very less progressive. On other issues, it is much more progressive than U.S. law.
So to highlight those distinctions in European Community Law and various conventions, I suppose it is very important to put them together again with the FAO's concept of farmers' right (which is again more a statement of intentions, rather than action) would be useful. And I will be very happy to contribute whatever little I can from my understanding of this since I have been pursuing it for my own education. But I am not adequate for this task and I am sure there are more people who know better than me on this subject.
Secondly, there is a PEW scholars' initiative started last October to develop ethical guidelines for accessing biodiversity. This is an informal initiative which eight or nine of us took essentially to look at all the guidelines that we have in our possession. David has given me some, but if others have more, I'll appreciate receiving them. But one, just one example of what we are finding, kind of black boxes. Guidelines of World Bank, WWF, IUCN and many other such agencies which talk a great deal about community rights and community involvement, do not mention even in one line that the knowledge which is gained from them, must be shared back with the people in the local language. Not one sentence! Not one sentence, in any of these guidelines. I'm just giving you an example. There are many more issues of this kind. So the question of their (the people's) involvement does not arise if they do not know what did we state in project documents and why we do not give back to them in their language. No UN document has ever been given and distributed among people in local languages. Even the treaty, the Biodiversity Treaty, has not been translated into local languages, by any government for that matter, to be distributed among the local communities. These are just examples of how phony the argument of involvement of local people is, so far as governmental actions are concerned. I will very much appreciate if colleagues could share whatever guidelines they have and I will be happy to share
when the synthesized guidelines are developed at our end.
The third point is about Innovation system. I am a bit at a loss to appreciate a registration system which does not provide any entitlement but only provides right of precedence and some disclosure. But there is a need for more information for people like us who are building databases on indigenous innovations. And how do we register these innovations, claim a right of precedence, prevent others from patenting it and in the process gain time to file patent applications? These are the questions we are facing and I would very much appreciate any suggestion on that. I have already discussed with Bill and Chris and others that we would appreciate any help in patenting. Filing patent applications on behalf of individual innovators as well as communities with whom we are working. And I'm not worried whether the U.S. patent office will accept or not. Even a rejection will be helpful. I don't want this to become only an academic issue. We will never go very far if it just remains academic. We have to confront the issue by filing applications and learning the hard way.
We would also appreciate, and I think I will ask this on behalf of other groups interested in the subject. Two other aspects, one is about several legal cases mentioned today. The one which I am very particularly interested in was mentioned by Bob Shaw. You know various kinds of legal cases which may help us understand these issues better. We don't ever go through the legal case data, we won't even know how to search for them. We're not legal people. Somebody with a legal background can select ten cases, 20, 50, whatever, which are the best for us on a particular topic. What is prior art, what is public domain? From the biodiversity perspective, from the point of view of intellectual property rights as they apply to people. Such information on these cases, making these cases available so that we can read about them, become more educated, ask better questions in the future and don't ask the irrelevant questions which is possible if we don't know much about it. So that is another thing.
THOMAS MAYS:
I just wanted to quickly respond. Some of the concerns that you are raising are accessible as publications on the market, such as Chisum on Patents, or Walker, which specifically addresses what you are asking.
ANIL GUPTA:
Well I have, in fact, collected a few books, bought a few things like this. The Inventors Assistance Program of New Hampshire, which the Franklin Pierce Law Center is supporting and I think it should have received some more time for discussion, is a wonderful program in that sense. It is supposed to help inventors in getting answers to these questions. But it is for all inventors, and there are some difficult problems for inventors dealing with biodiversity which obviously may not have been addressed understandably. So I'm saying that maybe we need to go further, already a step has been taken, the next step would be to address these issues for the biodiversity-based innovations which require some more complications than just a mechanical invention, though that is also important. Similarly, the bibliographical literature support would be extremely important. I am very happy that I got some very useful documents from here. But this is an ongoing process. So perhaps the bulletin board that you have would serve as a clearinghouse for both the concerns and the questions that have to be raised.
I had read in the program that you had mentioned some kind of working group, I think Suzanne also mentioned some kind of working groups, which could address different issues and deepen the understanding. Whenever somebody meets, or will meet and discuss those reports, we will make much more advance. This meeting is very useful in helping us understand each other's strengths, perspectives and biases. But some working groups could be set up to deepen understanding on specific dimensions of the TRIPS, or the technology transfer and impact on environment. Such discussion would be very helpful and will help us all. Thank you.
WILLIAM KEEFAUVER:
Just to state what many of us know. And that is that WIPO is a rich source of information and they do have people who will go into developing countries to do education and training on a variety of aspects of intellectual property. And even though you may ask them a new question on which they are not prepared, they're always looking for new worlds to conquer. And if the Director General Arpad Bogsch doesn't have people now, he'll find them, and so I think if you make your needs known to his folks in Geneva, you will be surprised how many documents and people you may get to help you.
MICHAEL GOLLIN:
One trick to making this process of ex ploration and research come up with some meaningful results and ones which will be useful for both intellectual property practitioners and people who are in environmental groups and in the environmental community I think is to be sure that the dialogue goes both ways. That is, we've spoken about the various intellectual property organizations which are laudably undertaking initiatives to look at environmental aspects of intellectual property law. The dialogue needs to be not only among intellectual property lawyers, but to bring in the environmental community. I think there's a process going on where intellectual property lawyers are beginning to address some of these questions, but they should be addressed to people who are really more expert in the environmental community. And vice versa, I think there is a process going on in various environmental groups which has been evident in the past year or so, to address these questions to intellectual property lawyers and experts. How does this work, how does that work? What is prior art, do patents cover this situation, why can't petty patents be used? (because they are not internationally recognized), and so on. And I think that flow of information is beginning to work pretty well.
I think the other side is lagging, and that is formulating the questions for the environmental community to teach intellectual property lawyers.
GEORGE PRIMAK:
I would like to suggest that if there is a follow up meeting or something, that maybe we should have a different format. Today we have discussed all these issues very generally. At LES, we often have some specific cases that are presented and then discussed and results are provided and obtained. And it seems to me that if we could have some specific examples of intellectual property transfer, how it's done, how specifically somebody has actually done it and whether it was a success or failure, how this is done in biotechnology areas as well, then I think this would be very useful and probably, provide very useful information that people could actually use in the future.
MICHAEL GOLLIN:
One area that we haven't talked about really much today and I guess as close as we've gotten is through Tom Mays' work with NCI and the agreement that they've got, and Liliana Obregon mentioned the agreement in Surinam that Conservation International has been involved in. But there are currently two fairly substantial operations going on which are going to create a whole lot of information, which we need to monitor, assess and keep track of. These are the NIH/ NSF/ USAID program for international cooperative biodiversity groups, which is paying out on the order of a million dollars a year over three years to five different groups who are engaged in biodiversity prospecting in Surinam, in central Africa, in Mexico and Chile and Costa Rica. Each of these consortia include pharmaceutical companies, other industrial companies, conservation organizations, local groups and taxonomic specialists. They all involve some kind of intellectual property agreement, and some kind of conservation plan. And there's also a program under way with the Biodiversity Conservation Network which has about twenty million dollars of USAID money to do similar kinds of things in Asia. People with the incentive of federal funding are going out and trying to set up these programs. The NCI agreements have been really a guidepost in drafting those things, but we're at a point now where hopefully there will be some information, some of which is now being closely held because deals are in negotiation and so on. I've been involved in two projects that I can't talk about in detail. But hopefully we'll be at a point soon where we can begin to share that information and see what works and see what doesn't. My feeling is that we should listen to the aphorism of "let a thousand flowers bloom" because we're making it up as we go along. And some of it's going to work and some of it's not. But the key is, and I don't know exactly the best way to do it, but we need to come up with something like a licensing manual for biodiversity to compile all this information.
H. WALTER HAEUSSLER:
In that regard, the Bristol-Meyers/INBIO Agreement is finished. Cornell is a party to that agreement as well. And there is a redacted version of that agreement that has been released by INBIO, I understand. So that information is, indeed, available in redacted form. It does not have the royalty rates and that sort of thing. But outside of the specific economic terms, that agreement is presently available.
JOHN BARNES:
Maybe Walter just stole my thunder but I was thinking that maybe an area of activity for the LES Committee would be to, with the thing that Tom Mays has given us, work on forms for such license agreements between the licensee of an agent and the source country, individual or association that found the agent. If there are some of those agreements that have already been worked on, we can collectively gather some of those and digest them with some of the experts that we have in our organization.
WILLIAM HENNESSEY:
I know David Downes and some other people have worked on some model agreements that were published in the "Biodiversity Prospecting" book of World Resources Institute. David, would you want to just mention that, or how that came about?
ANIL GUPTA:
That is the NCI agreement I think.
DAVID DOWNES:
There's several models worth looking at. The draft agreement I and others did in Biodiversity Prospecting was sort of a thought piece, based on the NCI letter of intent, business contracts with analogies to prospecting transactions and other sources. Since that time, some people have signed actual agreements that should be publicly available. As Walter mentioned, those are available in redacted form now, I assume from NCI.
THOMAS MAYS:
Currently, at the present time we have about, I think we have as of today, 12 signed agreements in place. Some of those are the older form. We have another eight under negotiation and the model I gave is obviously not redacted. We are correctly putting together a compendium of alternative clause phraseology which we're using as a negotiations guideline. We could review that to see if we could make that publicly available.
John, I would be very interested in working with LES. First I have to get my membership application in, but I would be very interested in getting advice as well as providing some information.
KATE MURASHIGE:
Perhaps more helpful, or as helpful as the clauses in the agreement, would be some anecdotal experiential disclosure of how these agreements are negotiated, how you pick out who you are going to negotiate with, what kind of response you get,
what kind of flow of information actually results from these agreements. Perhaps a panel comprising NCI, Merck, Cornell, and Bristol- Meyers would put a sense of reality on this.
WILLIAM HENNESSEY:
James Buchanan.
JAMES BUCHANAN:
Just to follow up on all of this that's been said, I think one of the things that we need to do is to get these kinds of forums, this kind of anecdotal information, as much information as we can into the hands of NGOs that are working with indigenous communities, because those are the people that can carry out the educational process that we've all admitted is very necessary from that end of the spectrum. I mean, we can do what we want to from our end, but we need to get the information into their hands as much as possible. We're networking here, but work to network beyond where we are, I mean for example to get the third world network people involved in this, who are involved with lots of indigenous groups, they need to know what's going on here about these things and so forth and other organizations that I'm sure we're all aware of.
CHARLES ZERNER:
The natural resource and rights program of the Rainforest Alliance is sponsoring 14 case studies of specific extraction of resources from tropical countries in Asia, Latin America, the South Pacific, and Africa. We would be delighted, when those cases are completed, to share them with whatever network or electronic forum billboard that's being conceptualized right now. Also, we'll invite critique and comment on the studies.
ANIL GUPTA:
Just a two small points, one that you may realize, that many people who subscribe to bulletin boards, particularly from developing countries, have an E-mail access and not an online access. This essentially means they have to pay a telephone cost for getting the message from one of the nodes in their country, which can be very exorbitant sometimes. So there should be some possibility of sending indexes or index of whatever information is available and then raise some resources to send them on floppy, larger documents like the one mentioned. I mean, I dread to think of a 100K or 200K file coming in and clogging the system. This suggestion I have made to many other bulletin boards, but you may like to keep in mind, not many have implemented it but it is very important from the receiving end and you're going to face this problem from many developing countries where this is the state of the art today. Second suggestion is that I have tried getting the acts which have been drafted in different governments in the post GATT phase. I wrote to IUCN Law Center, I wrote to many other places, I have to write to WIPO also, so far I have not gotten any response but I may yet. It is not easy to get this information which is being generated regularly . At least, I could not get it, and let me say that I tried my best and sent several faxes to several people very persuasively. So my suggestion is that if Franklin Pierce Law Center is trying to become a resource center of this kind, then it might be useful to think of a quarterly portfolio of some of the useful documents of this kind which we can suggest could be given to people and maybe some funding should be raised for that kind of quarterly support system, to the NGOs, to the bulletin board members and the professionals in the developing world and maybe even here for that matter. Here you may charge, there you may give it with compliments or whatever to others, so the information gets disseminated properly. Thank you.
MICHAEL GOLLIN:
To change the subject a little