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Open letter from Dr. Ingo Potrykus to Hope Shand and
RAFI in Response to
Their Press Release on "Golden Rice" from October 13
Dear Mrs Shand,
It is unfortunate that you did not contact the inventors before producing
the press release. It contains, therefore, unnecessary wrong information,
which I have now the task to put right again. As I stated in public at
the World Food Prize Symposium I share your motivation to improve the
lives of the poor in developing countries, and I even share much of your
concerns with regards to the role of industry and pubic research in plant
biotechnology are playing. We only differ in our approaches to ensure
that as much benefit as possible from the new technology is reaching the
underprivileged. I do not beleive that attacking industry and patents
will be very helpfull. Getting help from industry and making best possible
use of the patents offers, probably, a better chance to serve those we
both want to help, you as an NGO representative, and I as a scientist.
In your press release you complain that we "surrendered" "unnecessarily"
Golden Rice to industry, that this has to be investigated and reversed.
This view could not be wronger and a reversion would do more harm to the
subsistance farmers. The inventors did not "surrender" they actively saught
support for their task, making "Golden Rice" available to subsistance
farmers free of charge and limitations. We had a deadline of April 1999
because we wanted the commercial partner to also take care of the application
of the International Patent. Why did we need to involve a commercial partner?
Because "Golden Rice" also needs a commercial basis to reach the urban
poor. Why do we need a patent? Because only then we can ensure, that nobody
interfers with our task. We were glad that we could come to an agreement
with Zeneca which 100% supports our humanitarian task, because we even
had legal obligation to involve Zeneca: the development of "Golden Rice"
was also using funds from the Eurpean Commission to Peter Beyer.
In the last three years of ist development it was part of an EU-consortium
in the Fourth Framework Program. Funds are only avalable if there is a
commercial partner. This was Zeneca. Zeneca had, therefore, legal rights
on the Golden Rice. It did not play this card, but it could have done
so. Rather it agreed in a very generous solution for the "humanitarian
use", $ 10'000 gain from "Golden Rice" per unit involving also local and
national opportunities for commerce. And it is taking every effort to
support the humanitarian use.
Why are you upset if in return Zeneca is trying to make profit from
developing a commercial "Golden Rice", which even also will have benefits
for the poor not directly linked to subsistance farmers? Could you not
agree that it is neither fair nore wise to blame industry for working
for profit? This is for what they are there. If you want to blame biotechnology
for not helping with the problems of the poor, you should blame public
research. Public research has the freedom to invest in research from which
a financial return can not be expected. To come back to the excample of
the EU funding.
I consider it neither fair nore wise to force public research into coalitions
with industry. Now lets turn to the patent problematic. I understand your
anger about the situation which puts public research into total depency
of those who have patented the basic technologies. I too was most upset
when I realized that despite the fact that "Golden Rice" was developed
without industry support and within public research, I would need permission
from numerous holders of intellectual and technical property rights. I
was even motivated to join those who are fighting against patenting in
plant biotechnology - until I thaught it little bit deeper and realized,
that I was able to develop "Golden Rice" only because there were patents
and consequently all the information available publicly which otherwise
would have remained company secret. I, therefore, beleive that we serve
the underprivileged better if we work towards a better use of intellectual
property right, were better means free use for humanitarian projects in
developing countries.
Exactly this has been the task of a satelite meeting at the World Food
Prize, and it is unfortunate that you were not invited. This meeting demonstrated
that there is a lot of good will in agbotech companies to accept this
task and to make "enabling technologies" available for food security projects
in developing countries. What also became obvous was that the majorstumbling
blocks for this attempt are not the IPR/TPR's in the hand of industry,
but those in the hands of universities. The participants of this workshop,
both from industry and public research, and from developed and developing
countries agreed on a statement which reads as follows: "In response to
concerns about food security, we encourage universities and industry to
work together to form a mechanism to facilitate sharing of enabling technologies
in agricultural biotechnology for humanitarian needs." For more information
please contact prakash@tuskegee.edu.
Finally to the question whether the financial resources have been properly
used and unduely "surrendered" to industry. The project was financed with
funds from The Rockefeller Foundation, the Swiss Federation, and the European
Union. We have already discussed the latter and have done exactly what
was expected. Concerning the funds from Rockefeller, the conditions are
that results must be freely available for subsistance farmers in developing
countries. Again, exactly this is the case, and we have additional support
for this from industry. The funds from the Swiss Federation were for "basic
research", with the requirement that they should be used for competitive
science. This was, again, the case. The achievement was scientifically
remarkable. That I tried to use the funds for both, competitive science
and contribution for food security in developing countries was my personal
and free decision. I could have used the same funds for studying why the
hairs on the leaves of the small weed Arabidopsis thaliana are sometimes
2- and sometimes 3-forked.
>From your press release I can conclude that you beleive that "Golden
Rice" has a chance to releive many poor from severe ilness and even death,
and that it is, therefore, important that it reaches the poor without
industry intervention. If I would have studied the leaf hairs I would
not have any problems with you, and Greenpeace, and other opponents. Again,
I am afraid, you are addressing the wrong, if you want that the poor will
benefit from biotechnology. Your actions are not encourageing other scientists
to contribute to this goal, they are heavily discourageing. In the interest
of the disadvantaged we should not fight, but we should try to collaborate
on the ground of common motivation
Here is the statement from RAFI that provoked the above response from
Dr. Potrkus:
RAFI News Release
Thursday, October 12 2000
Update on Trojan Trade Reps, Golden Rice, and the Search for Higher
Ground
"Golden" Goosed?
The Golden Rice AstraZeneca saga is a case study in public science's
failure to understand and address patent issues. In justifying their surrender
of Vitamin A enriched GM rice to the giant corporation, the researchers
claim they couldn't navigate the 70+ intellectual and tangible property
conflicts that could potentially scuttle their work. There are likely
no more than 11 - and possibly as few as 4, patent conflicts and one outstanding
tangible property issue. A public sector group - including the people
Golden Rice is intended to help - should meet to debate all the options
and alternatives. The contract and the events surrounding it should be
investigated.
When shareholders confirm this week that the agricultural divisions
of AstraZeneca and Novartis will indeed merge under the new name, "Syngenta,"
they will probably be talking more about their market prospects for GM
crops in the North than about the needs of poor farmers and malnourished
consumers in the South. More of the discussion will be about the opportunities
created with the coming together of the two enterprises' Terminator and
Traitor patents than about Vitamin A deficiency in Asia. But, according
to RAFI's Research Director, Hope Shand, "Syngenta had better be giving
some serious thought to its deal on Golden Rice - and quickly, or they
could have a major embarrassment on their hands."
Laying a not-so-Golden Egg: "The deal struck by Potrykus and Beyer (the
Swiss and German scientists who developed Golden Rice) with AstraZeneca
was totally unnecessary," Shand insists. "It should be thoroughly investigated
by the public institutions who funded the research." News that Golden
Rice, a GM rice containing Vitamin A enrichment genes, was showing promise
first surfaced in January. By April, however, the financial backers of
the research - including the Rockefeller Foundation, the Swiss Federal
Institute of Technology, and the European Union - were letting it be known
that commercialization of the work in countries with Vitamin A deficiency
(VAD) could run afoul of between 70 and 105 patents, licenses, and Material
Transfer Agreements (MTAs - agreements governing technical property such
as germplasm) controlled by more than 30 public and private institutes.
Their alarm appears to have been kindled by a study the Rockefeller Foundation
commissioned from ISAAA! (International Service for the Acquisition of
Agri-biotech Applications - a bio-broker with offices in the UK, USA,
and the Caribbean). The patent search was conducted on behalf of the International
Rice Research Institute (IRRI) in the Philippines, spurred by concerns
that if it adopted Golden Rice it might be sued by other patent-holders.
Despite their shock as to the number of potential intellectual property
conflicts, the donors were stunned on May 16th when the two researchers
independently signed a deal with AstraZeneca turning over the future development
of Golden Rice to the Gene Giant. The agreement was negotiated through
another biotech bargainer, Greenovations, which is a spin-off of the University
of Frieburg where one of the inventors has his lab. In return for exclusive
monopoly control of Golden Rice in the North and in sales to larger farmers
in the South, AstraZeneca agreed to make the technology freely available
to the South's poor farmers. At the time, ! Beyer and Potrykus told the
media that the dizzying muddle of conflicting intellectual property claims
necessitated the deal. Aside from clearing away intellectual property
hurdles, AstraZeneca will also undertake additional research related to
the environmental and health issues surrounding Golden Rice before releasing
seeds to the market, they suggest, sometime around 2003. At the time of
the deal, some of the donors were actively exploring public sector avenues
for completing this work in Australia, Asia, and Europe. All of the donors
were apparently aware that the inventors were considering commercial options
but did not expect an agreement to be reached unilaterally or so quickly.
Their public sector efforts came to an abrupt halt. Nine years and millions
of dollars of public funding were surrendered to a multinational corporation.
The media continued to talk of the gaggles of patents and haggles of
licensing from May through August. On August 3rd, Monsanto, which had
jettisoned its own rice programme some months earlier, garnered cheap
publicity by proclaiming that its warehouse of rice-related patents would
be licensed gratis to the Golden Rice project. The next day, Potrykus
told the Washington Post, "I consider the Monsanto offer important because
I can now use this case to tell other companies, 'Look, Monsanto is giving
me a free license. Won't you do the same?' It's an important first example."
It now appears that only one Monsanto patent is a factor in most countries
in the South that have high levels of Vitamin A deficiency.
Potrykus' comments beg the question: Why didn't the public researchers,
backed by their donors, attempt to clear possible patent constraints before
striking a deal with AstraZeneca?
At the beginning of September, AstraZeneca let it be known that as few
as four patents and two MTAs might have to be negotiated. RAFI now understands
that only one MTA continues to be a problem.
Counting Eggs Before They Hatch: At the beginning of October, RAFI received
a copy of ISAAA's IP audit on Golden Rice. The ISAAA study identifies
70 patents and 16 technical property constraints (MTAs and other licenses)
that could have implications for Golden Rice commercialization. RAFI's
review of the claims indicates that no more than 11 patents potentially
complicate the completion of the project. RAFI's analysis focuses on the
60 countries that are designated by the World Health Organization (WHO)
as having clinical or severe levels of Vitamin A deficiency.
Although there are technically 70 patents, many of the same patents are
replicated with different codes in the United States and the European
Patent Office. In fact, there are only 44 patents applicable in any one
country.
- Of the 44 patents, 26 are for process claims. These patents are not
applicable if the product using the process is made in a country where
the patent does not apply.
- Of the 60 countries that suffer the most serious levels of VAD, 35
countries recognize no patents related to Golden Rice.
- Of the 25 VAD countries where Golden Rice patents have been recognized,
only a dozen patents are actually relevant.
- Of the 12 patents that are recognized in VAD countries, 7 patents
are held by four Gene Giants (AstraZeneca -1; Aventis - 2; Monsanto
- 1; and DuPont - 3 though the 3 DuPont claims are all identical). One
patent - recognized only in Mexico (of the VAD countries) is held by
Yissum Research & Development Co. - a biotech company spin-off of the
Hebrew University of Jerusalem. The remaining 4 patents are held by
four public sector institutions (University of Maryland; Centre National
- France; National Research Council of Canada; University of California).
- But, only 12 countries have VAD and consume rice in sufficient quantity
to make them potential targets for introducing Golden Rice. Of these
12 countries, 6 have no patent conflicts for the production of Golden
Rice.
- At most, 11 patents can be considered a constraint to the project.
In sorting out the ownership conundrum, three points become clear.
First, only a very small percentage of the patents are relevant for
the poor countries suffering the most from Vitamin A deficiency. Second,
only a few patents held by the private sector actually conflict with the
further development of Golden Rice for the South. Of the four companies
with patents, two - Monsanto and Astra Zeneca - have already agreed to
royalty free licensing, leaving only two other major players, Aventis
and Dupont to agree to the same. Third, the abuse of MTAs as a market
weapon to frustrate scientific advances has been underestimated and is
in urgent need of examination.
Trojan Trade Reps? "The researchers appear to have surrendered a decade
of public funding to the commercial and PR interests of the biotech industry,"
notes Julie Delahanty of RAFI, "The threat of a plethora of industry patents
that had no relevance to the development of Golden Rice turned the project
into a "Trojan Trade Rep" for northern industry's campaign to impose their
IP rules on the world." Even though poor countries have every legal right
to utilize any technology not patented within their territories - pressure
from industry seems to have convinced public science - and its funders
- that they had to negotiate access to all the patents in order to develop
Golden Rice.
RAFI believes that a number of questions need to be answered in order
for the public to have confidence in any ongoing research related to Golden
Rice:
- What were the terms and conditions of the contract with AstraZeneca?
Were there other related arrangements between any of the parties involved
in Golden Rice research and funding?
- What was the substance of the initial report made by ISAAA on Golden
Rice prior to the publication of its later document in September? How
many conflicts did it identify and what was its advice? Why didn't ISAAA
researchers give a more accurate and transparent IP audit - taking into
account the rather limited number of IP constraints for most poor countries?
- What is the commercial potential for Golden Rice in the North and
among larger farmers in the South? In other words, what market was surrendered
to AstraZeneca?
Action Needed: RAFI, along with many other civil society organizations,
is increasingly skeptical about the public health and environmental safety
aspects of any GM crop. A great deal more research will be needed in these
areas as well as a full examination of the socio-economic impact and other
alternatives, before Golden Rice can be considered. RAFI believes that
there are other more cost-effective strategies for addressing micronutrient
deficiencies in the South that not only meet human needs but also promote
- not restrict - biological diversity. RAFI also believes that the technological
and public relations disaster surrounding GM seeds is continuing into
biotech's second and third generations. As a Generation Three product,
Golden Rice requires forensic scrutiny since it is aimed directly at poor
consumers - in the centre of genetic diversity of the world's most important
food crop.
RAFI recommends three initiatives:
1. The public sector funders who supported this research should form
a consortium to conduct an immediate investigation of the events leading
up to the contract with AstraZeneca.
2. The funders, in cooperation with the Consultative Group on International
Agricultural Research (CGIAR) should discuss mechanisms that could allow
the issue of public scientific research and intellectual property conflicts
to be addressed to the Office of the High Commissioner for Human Rights
in the United Nations and the International Court of Justice.
3. The consortium of donors should invite concerned organizations -
especially organizational representatives of the poor farmers and consumers
who are the focus of Golden Rice research - to meet and discuss not only
Golden Rice but the wider issue of meeting the micro-nutrient needs of
malnourished peoples. Hopefully, such a meeting would lead to a renewed
and collective commitment to address this issue. Whether or not Golden
Rice is seen as part of the problem or part of the solution would be for
the meeting to decide. Astra Zeneca (now Syngenta) should immediately
surrender its exclusive rights to the public sector, if this meeting asks
it to do so. The company should also assure the public that its own intellectual
property claims will not interfere with the research or its final commercialization
- if the work should eventually be acceptable for marketing.
Searching for Higher Ground: RAFI will continue to follow this issue
closely in the months ahead. "We don't want to suggest that patent conflicts
are not a major problem. They are." Hope Shand concludes. "But the only
clear intellectual property claim right now comes from ISAAA which has
applied for a trademark on the name Golden Rice." "The clear conclusion,"
Julie Delahanty adds, "is that the public sector has not been facing up
to the complex issues and moral dilemmas associated with intellectual
property. It's time they got their head out of the sand and looked around
before it's too late."
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