Delegates at the World Trade Organization meeting in Seattle will tackle the thorny issue of patenting "life"
The Oregonian | November 14, 1999 | By Jennifer Bjorhus of The Oregonian staff
Jackson & Perkins' wholesale catalog, with dewy cut roses with such names as "Tango," "Kiko" and "Opulent," seems an unlikely place to glimpse the growing international furor about intellectual property rights.
But like software, videotapes, hybrid corn seeds and computer chips, the hybrid roses are intellectual property subject to such ownership rights as patents, trademarks and copyrights.
Intellectual property is one of three broad subjects on the agenda for the World Trade Organization's meeting Nov. 30 to Dec. 3 in Seattle. The topic creates one of the deepest fault lines between the agency's industrialized and developing member nations.
Although intellectual property is a term often associated with technology industries, much of the debate in Seattle probably will center on patenting plants, animals and genetically engineered organisms.
Access to the meetings will be tightly restricted, but a daylong seminar for the masses of nondelegates attending will be devoted to the subject "No Patents on Life."
Bear Creek Corp., the Medford company that breeds and sells Jackson & Perkins roses, doesn't plan to participate in the Seattle debate, but it's vitally interested in the outcome. The company loses money each year to unlicensed growers in Latin America who breed their prized patented blooms and sell the cut flowers without paying royalties, said Omer Schneider, senior vice president of Bear Creek Gardens Inc., a division of Bear Creek Corp.
Bear Creek and other companies involved in this modern day war of roses have worked with some countries, such as Ecuador and Colombia, to get them to adopt new plant patent laws.
Schneider estimates that several millions of dollars' worth of pirated roses come into the United States each year.
"It's a huge problem," said John Dolan, rose specialist with California-based Dolan International, a company that licenses rose propagators. "Millions and millions of dollars were just ripped off."
In one sense, Bear Creek's struggle is a small blip in global commerce. The Medford company is one of about three commercial rose breeders in the United States affected by the illegal rose trade. Probably only two dozen more around the world feel the sting of rose piracy. Lives are not at risk. Roses won't be on trial at the World Trade Organization meeting.
Still, Bear Creek's concerns speak to a fundamental clash in international trade about the issue of patenting plants, genes and other material associated with life.
"India is having raging battles," said Kristin Dawkins, a director at the Institute for Agriculture and Trade Policy in Minneapolis. "They presently do not allow for patents on food or medicine. Whole (parliamentary) parties have lost their positions because of it, along with other issues.
"It's of such tremendous economic importance to the Third World."
Controversial provision
At issue is a small provision in the WTO's "Agreement on Trade Related Aspects of Intellectual Property," which went into effect in 1995. The agreement created the broadest global system ever for establishing U.S.-style copyright, trademark and patent systems.
But it includes a controversial provision called "sui generis" in legal jargon, allowing member nations to develop their own intellectual property rights laws, if they wish. Many developing countries, which don't have the same "you find it, you own it" patent tradition as the United States, want looser rules to encourage development and control monopolies on vital commodities.
Because of sui generis, a rose breeder, for instance, would have to apply for whatever type of protection that country offers.
Not everyone agrees on the proper boundaries for patenting plants, seeds, human genes and genetically altered products. The United States wants to beef up the Trade Related Aspects of Intellectual Property agreement. Many developing countries want to change the agreement to exclude plants and animals from patent protections and bring it in line with the earlier global agreements on protecting biodiversity. At the very least, they want the sui generis provision left alone.
The problem probably won't be fixed in Seattle. Any agreements the trade organization makes would have to be by consensus.
Patents at great cost
To companies such as Bear Creek, plant patents are hard-won necessities of business life. Companies spend a lot of money on research and development to create better products for consumers, Schneider and others argue. It can take more than seven years to develop a rose such as Jackson & Perkins' new raspberry-scented "Veterans' Honor" or the dark burgundy rose called "Classy," patented by the Hills Floral Group in Indiana.
"That's a lot of money and testing," said Lindly Mann, president of Hills Floral Group. Mann's company, which breeds roses for cut flowers, has fought numerous legal battles with growers in Ecuador. "We put a lot of money behind a rose like Classy, not to have it pilfered.
"It hurts the whole world economy when you have someone that's not paying royalties competing with someone who is," Mann said. "This is going to be a continuous fight going forward."
Hills' company has numerous problems in Ecuador, now a major supplier of roses to the United States. Until recently, Ecuador had no plant patent laws, Mann said.
It's not hard to pirate the blooms. It's as simple as grafting a cutting of a patented rose onto a nonpatented one and growing it.
"When you go to a greenhouse facility and you want to go in and they won't let you in, then you have a pretty good idea they're not paying royalties," Mann said.
Last year, Mann's agents discovered a large cache of millions of his company's patented roses being grown illegally in a series of greenhouses in Quito, Ecuador's capital. Mann hired attorneys, getting the local sheriff and U.S. Embassy involved. They insisted that the Quito company obey international patent rules and pay back royalties as well as a $200,000 penalty. The company reluctantly agreed, Mann said.
If the WTO strengthened its patent rules even further, growers could persuade their countries to take their cases before the agency and force compliance by threatening sanctions.
To further strengthen the security of rose patents, Mann said, companies will soon begin patenting the actual DNA of the roses they develop in labs.
"We're not trying to put people out of business, we're trying to get our fair share of what is duly ours," Mann said.
Finding a system for all
Critics say a strict and global one-size-fits-all system of intellectual property rights is unfair to developing countries and harmful to the environment.
Such a system puts developing countries, later to develop patent laws, at a distinct economic disadvantage with nations whose corporations already dominate patents, they argue. Royalty payments to foreign companies drain poorer nations' cash.
Critics also argue that strictly enforced patents on medicines and seeds can make both products prohibitively expensive for the poor and stymie the development of cheaper generic drugs.
Patents can also foster monopolies on food supplies, critics argue. For example, farmers using patented corn seeds would have to pay annual fees to use the seeds instead of simply saving seeds from one harvest to plant for the next as many have traditionally done.
Another concern is that hybrid or genetically altered seeds and plants can erode biodiversity, leading to fragile monocultures of identical plants.
"Tighter property rights raise the price of technology transfer, blocking developing countries from the dynamic knowledge sectors. The TRIPs will enable multinationals to dominate the global market even more easily," concludes the 1999 Human Development Report, published by the United Nations Development Programme.
Meanwhile, Hills Floral Group and Bear Creek remain vigilant, checking greenhouses as necessary for errant roses.
Schneider doesn't think the WTO will soften its stance on intellectual property rights.
"We've worked so long and hard for plant breeders rights," he said. "I can't imagine them being so short-sighted."
