ANIMAL GENETIC RESOURCES ((AnGR) AND INTELLECTUAL PROPERTY RIGHTS (IPRs)

ANIMAL GENETIC RESOURCES ((AnGR) AND INTELLECTUAL PROPERTY RIGHTS (IPRs)

Herdsmen have practiced the art of animal breeding since the beginning of domestication of livestock. From its roots in mendelian inheritance to developments in modern quantitative genetics the field has grown and enlarged its base to include modern molecular genetics. The practical applications have been to genetically improve animals that produce meat, milk and other products of economic value. The advent of molecular biology, sequencing of genomes and development of cloning have brought large amount of money. These developments are anticipated to be applicable to the genetic improvements of animals. However, more emphasis is required to drive research, which in turn needs to yield value, Patents, primarily associated with chemistry, physics are now being utilized in field of animal genetics to protect the intellcectual property that is developed. Animal genetic resources (AnGR) are essential components of global biodiversity, playing a crucial role in food security, agriculture, and scientific research. The interaction between animal genetic resources and intellectual property rights (IPRs) raises important considerations regarding conservation, sustainable use, and equitable benefit-sharing. This article explores the intersection of AnGR and IPRs, examining the challenges and opportunities in balancing conservation efforts with the need for innovation in animal breeding and genetic research.

Different forms of Intellectual property

 Intellectual Property (IP) is a category of property that confers rights over intangible creations of human intellect. Intellectual Property rights as a collective term includes patents, trademarks, geographical indications, trade secrets and copyright. IPR are largely territorial in nature except copyright, which is global in nature. At the international level, Convention on Biological Diversity (CBD) of United Nations and Trade Related Aspects of Intellectual Property (TRIPs) Agreement of World Trade Organization are the two major agreements governing access and rights over genetic resources. As India is signatory to both CBD and TRIPs, there is a need to assess the issues at hand with a global perspective and also narrate and evaluate the options for the typical livestock production situation existing in the country. There are various types of IPRs. Very few are relevant to the livestock sector which include patents, trademarks, trade secrets and geographical indications. Each of these forms of IPR has different requirements and grants different legal status.

Patents

A patent is a set of exclusive rights granted by a sovereign state to an inventor for a limited period of time in exchange for detailed public disclosure of an invention Patents grant an exclusive right to prohibit others from using an invention for commercial purposes. Patents are given to the invention which fulfils the criteria as: · Should be new compared with what was previously known · Should involving an inventive or non-obvious step · Should be capable of industrial application Patents are “territorial rights” and only granted and effective in the countries that they have been applied for. So if a patent has been granted in India, then the invention is patent-protected only in that country and not elsewhere. Basically, each country has its own national patent law in which it defines what can be patented and what not. In Europe there is only one institution dealing with patent applications, the European Patent Office (EPO) in Munich. The patents granted by the European Patent Office are called European patents. However, World Intellectual Property Organization (WIPO) accepts applications for patents that it then forwards to all other countries. WIPO is also seeking to harmonize patent law worldwide by establishing a substantive patent treaty that will be globally effective.

Patenting in livestock sector

The idea of an animal patent exploded in 1988 when the Patent and Trademark Office (PTO) issued its first animal patent to the transgenic mouse known as the “Harvard Mouse”(Woessner, 2001). However, no clear policy was ever articulated regarding animal patents. Rather, the PTO accepted transgenic animals as patentable subject matter, essentially, by default (Michael, 1993). In the livestock sector, patents have been granted for gene sequences in connection with genetic markers. A New Zealand company, Agmark, has claimed a patent on the “Booroola” gene, which regulates the ovulation rate in sheep. The patent covers animals that are produced in a breeding programme in which the DNA test has been used, but not those animals that carry the gene naturally. However, the open question is whether the patent also covers the offspring of the animals that have been tested for the presence of the gene. Another notable patent application is one by Monsanto for a series of twelve patents on pig breeding. It is currently pending at WIPO. The rationale of patents is that they should provide incentives for innovation, research and development. However, the challenge ahead is whether they would really fulfil this purpose in the animal breeding sector and inhibit use of animal genetic resources by researchers, breeders and farmers.

Trademarks

Trademarks are distinctive signs, such as symbols, letter, shapes or names that identify the producer of a product and protect its associated reputation. They are an asset and as such may be licenced by the owner of the trade mark. Well known example include the Coca-Cola lettering, McDonald’s “golden arches” etc. A specific type of product from a specific breed can be trademarked but not genetic material. Examples include “Berkshire Gold” and “Certified Angus Beef”.

Trade secrets

They consist of commercially valuable information that is kept secret from competitors. As long as they remain secret, trade secrets are protected by laws which prevent acquisition by commercially unfair means and unauthorized disclosure. Trade secrets do not establish an exclusive right over a genetic resource, but have been used with great success by genetics companies in the poultry sector and in hybrid pig breeding. These companies go to great length to keep their nucleus stock and information about pedigrees out of reach of competitors. Examples include selection indexes used by breeding companies .

Geographical Indications

Geographical indications identify the specific area of origin of a product, and the associated qualities, production process, reputation, and other characteristics. They do not protect the genetic resource, but can add value to products of a particular breed in a particular region. Examples include Karoo lamb (South Africa) and Chos Malal goat meat (Argentina). There is strong evidence from both developed and developing countries that origin-based marketing in which control over production processes remains with the livestock keepers can empower them versus corporate interests and provide greater earning power.

Sui Generis System

The term sui generis is used in the TRIPS Agreement in connection with the protection of plant varieties. It means that an IPR law of its own kind adapted to the specific needs of the crop sector can be developed as alternative. In spite of significant contribution of animals to the food security and nutrition, laws and policies including intellectual property protection on genetic resources at the national as well as international level should be strengthen. There is a need for legally binding internationally accepted system for access and sharing of benefits from the use of Animal Genetic Resources (AnGR) and associated traditional knowledge and recognition of community rights over knowledge and biodiversity. Considering the special characteristics of AnGR it is essential to develop a suitable sui generi system for AnGR for protection of intellectual property rights (Ramesha et al., 2007).

Livestock Keepers’ Rights

• The concept of Livestock Keepers’ Rights has been developed over a period of almost seven years in a series of livestock keepers’ and pastoralists’ meetings on three continents. The cornerstones of this concept include:
• · Recognition of livestock keepers as creators of breeds and custodians of animal genetic resources. · Recognition of traditional breeds as collective property, products of indigenous knowledge and cultural expression. · The right of the livestock keepers to make breeding decisions. · Right of livestock keepers to participate in policy making processes on issues relating to animal genetic resources. · Support for training and capacity building of livestock keepers in the provision of services along the food chain. · Some governments, including India support the concept of Livestock Keepers’ Rights, but other governments regard them as unexplored legal or political ideas. · Some experts believe that Livestock Keepers’ Rights could conflict with patents on genes.

Current issues of concern

The continued availability of animal genetic resources for the purpose of sustainable agricultural production is a matter of concern for both developing and developed countries. Coupled with this concern are the issues of the conservation of the locally adapted breed populations developed by agriculturalists, the continued access to and sharing of the benefits derived from these resources, the importance of Livestock Keepers’ Rights and the implications of intellectual property rights protection in various forms of these resourcesAs an adjunct to these issues is the use and protection of transgenic animals for the purposes of modeling human diseases and the production of human pharmaceuticals for commercial purposes (Woessner, 2001) .

Importance of Animal Genetic Resources

1. Genetic Diversity:

• AnGR encompass a wide variety of species and breeds, contributing to genetic diversity within and across populations. This diversity is essential for the adaptation of animals to changing environmental conditions and emerging diseases.

2. Livestock Production:

• Livestock breeds derived from AnGR are integral to global livestock production systems. They provide a source of meat, milk, fibers, and other products, contributing significantly to the livelihoods of farmers and the economy.

3. Research and Development:

• AnGR are valuable resources for scientific research and development in areas such as animal health, disease resistance, and adaptation to specific ecological niches. They serve as a foundation for breeding programs aiming to enhance desirable traits.

Intellectual Property Rights (IPRs) and Animal Genetic Resources

1. Patents and Breeding Technologies:

• IPRs, particularly patents, have been applied to breeding technologies and genetic traits. This includes the patenting of specific genes or genetic modifications, raising concerns about the potential concentration of genetic resources in the hands of a few entities.

2. Biopiracy Concerns:

• There are concerns about biopiracy, where genetic resources are exploited without proper authorization or benefit-sharing agreements with the communities and countries of origin. This raises ethical questions about equitable access to and utilization of AnGR.

3. Access and Benefit-Sharing (ABS):

• The Nagoya Protocol under the Convention on Biological Diversity addresses the fair and equitable sharing of benefits arising from the utilization of genetic resources. ABS mechanisms aim to ensure that the benefits derived from AnGR are shared with the providers.

Challenges in Balancing Conservation and Innovation

1. Ownership and Control:

• IPRs may grant ownership and control over specific genetic resources to individuals or corporations, potentially limiting access for traditional farming communities and inhibiting conservation efforts.

2. Biotechnological Advancements:

• Rapid advancements in biotechnology, including gene editing and cloning, raise questions about the ethical use of AnGR. Balancing innovation with the conservation of natural genetic diversity is a complex challenge.

3. Global Equity:

• The distribution of benefits from the commercialization of genetic resources is often unequal, with more developed countries and corporations benefiting disproportionately. This highlights the need for global equity in access and benefit-sharing.

Opportunities for Conservation and Sustainable Use

1. Community Engagement:

• Involving local communities, especially those with traditional knowledge of animal breeding, in decision-making processes ensures that the conservation and sustainable use of AnGR consider their perspectives and needs.

2. International Collaboration:

• International collaboration and agreements can facilitate the exchange of genetic resources for research and breeding purposes while ensuring equitable benefit-sharing and adherence to ethical standards.

3. Regulatory Frameworks:

• Establishing clear regulatory frameworks that balance the protection of intellectual property with the conservation of genetic resources is essential. This includes implementing and enforcing ABS mechanisms at the national and international levels.

4. Educational Initiatives:

• Promoting awareness and education about the value of AnGR, the importance of conservation, and the implications of IPRs can empower stakeholders to make informed decisions that align with both conservation and innovation goals.

Conclusion

The interaction between animal genetic resources and intellectual property rights represents a complex and multifaceted challenge that requires careful consideration. Balancing the need for innovation in animal breeding and genetic research with the imperative to conserve genetic diversity is crucial for the sustainable future of agriculture and food security. Through thoughtful regulation, international collaboration, and community engagement, it is possible to develop a framework that ensures the responsible use of AnGR, respects traditional knowledge, and promotes global equity in the benefits derived from these valuable genetic resources.

We may conclude that the full scope of patent protection in the field of animal breeding has not yet been determined. The effects of IPRs on animal genetic resources on genetic diversity, genetic improvement and the livelihoods of livestock keepers have scarcely been analysed, but are in urgent need of exploration. The customary right of livestock keepers to breed their animals, which has been the driver of livestock biodiversity, may be under threat unless specific national and international legal frameworks were developed. For example, are patents likely to promote or stifle breeding, research, and development in the animal sector? What distributive effects will these changes in patent law and patent practice have among farmers, livestock keepers, breeders and multinational breeding companies? More knowledge about the effects of patents in this field of technology would help to provide the courts and other decision-makers with a better foundation for deciding on questions concerning the scope of patent protection in this field of agriculture and innovation.

Compiled  & Shared by- This paper is a compilation of groupwork provided by the

Team, LITD (Livestock Institute of Training & Development)

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Intellectual Property and Its Management for Animal  Resources in India