Grpc 25 Minutes Final April09

MINUTES OF THE GENETIC RESOURCES POLICY COMMITTEE (GRPC)

25th Session, WorldFish Center, Penang, 17-19 March 2009

Members present: Carlos Correa (Chair)
Emile Frison (Committee Secretary)
Carl-Gustaf Thornström (CGIAR member)
Tony Gregson (Alliance Board)
Shadrack Moephuli (CGIAR member)
Orlando de Ponti (Private sector)
Dan Leskien (FAO Observer)
Benito Odala Eliasi (Farmers’ Organizations)
Chee Yoke Ling (NGOs)

Excused absences: Mike Gale (Science Council), Teresita Borromeo (NARS)
Mahmoud Solh (Alliance Executive)

Members of Secretariat: Michael Halewood (Bioversity)

Resource Persons: Victoria Henson-Apollonio (CAS-IP), Guat Hong Teh
(CAS-IP), Lim Eng Siang (Bioversity International)

Observers: Nguyen Hong Nguyen; Curtis Lind (WorldFish Center)

Tuesday 17 March

A. Welcome, introductions, logistics, and adoption of the agenda
Dr Stephen Hall, the Director General of the WorldFish Center, welcomed participants to
the meeting. The agenda was adopted; it is included as Appendix 1 to these minutes.

B. Overview of activities from GRPC 24 work plan
Michael Halewood summarized progress to date on the work plan developed by GRPC
24. He also introduced the issues raised by the Executive Committee of the Inter Centre
Working Group on Genetic Resources (ICWG-GR) in a teleconference held on 9 March
2009, concerning issues they wanted to bring to the committee’s attention.

C. Report concerning preparations for the Third Session of the Governing Body of
the International Treaty
The committee reviewed the agenda of the Third Session of the Governing Body to be
held 1-5 June, 2009. Michael described the reports that are being prepared, through the
SGRP, on behalf of the Centres, for submission to the Governing Body meeting.

D. Report of the intersessional activities of the Secretariat of the Commission on
Genetic Resources for Food and Agriculture
Dan Leskien provided an update on the relevant intersessional activities of the Secretariat
of the Commission on Genetic Resources for Food and Agriculture (the Commission).

Minutes of the 25th Session of the GRPC.

The Commission’s Intergovernmental Technical Working Group on Animal Genetic
Resources for Food and Agriculture held its fifth session in January 2009. The Working
Group requested FAO, inter alia, to prepare a draft Funding Strategy for the
implementation of the Global Plan of Action for Animal Genetic Resources. The
Intergovernmental Technical Working Group on Plant Genetic Resources will hold its
fourth session in July 2009; it will focus on the review of the second State of the World’s
Plant Genetic Resources for Food and Agriculture. The Working Group will also consider
the process for the review of the Global Plan of Action for the Conservation and
Sustainable Utilization of Plant Genetic Resources for Food and Agriculture (GPA
PGRFA).

The Commission will hold its Twelfth Regular Session on 19-23 October 2009. The
Session will be preceded by one-day regional consultations and a one-day special event
on access and benefit-sharing for genetic resources for food and agriculture. The
Commission will focus on (1) Access and benefit-sharing for GRFA; (2) the Strategic
Plan for the implementation of the Multi-year Programme of Work; and (3) the up-dated
State of the World’s PGRFA and the process for up-dating the GPA PGRFA. The draft
Strategic Plan will be circulated to the regions, intergovernmental organizations, the
CGIAR and non-governmental organizations, in March/April 2009. The Commission
Secretariat has commissioned studies on the use and exchange of genetic resources in the
various sectors of GRFA. The CGIAR is directly involved in the preparation of the
studies on microbial genetic resources and forest genetic resources and is coordinating a
study on climate change and GRFA.

It was noted in subsequent discussion that a number of products of the Global Public
Goods II (GPG 2) project should be reported to the next meeting of the Commission,
including for example, the crop-specific guidelines to address the risk of adventitious
introgression of transgenes into ex situ collections.

E. FAO/Bioversity/Treaty Secretariat Joint Programme on Treaty Implementation
Michael described the activities of the Joint Programme. The committee noted the
importance of countries and regions making significant progress with Treaty
implementation. In the absence of such progress, the committee expressed concern that
the Treaty could become a ‘dead letter’.

It was noted that involving plant breeders in Treaty implementation activities is critically
important. Victoria Henson-Apollonio provided details about the CAS-IP national
partners programme, highlighting the possibility of involving national partners in Treaty
implementation.

F. Revising/developing a system-wide policy on intellectual assets
Emile Frison informed the committee that, following GRPC 24, the draft policy was
circulated to the Alliance Executive, and was the subject of a side-meeting held during
the CGIAR Annual General Meeting in Maputo, December 2008, attended by a number
of Director Generals and other Centres’ representatives. During the Maputo meeting,
participants were requested to provide examples of how the draft policy would impact


negatively on their Centres’ activities. Participants agreed to send additional comments to
Emile, on behalf of the committee, following the Maputo meeting. The committee
considered the comments that were sent to Emile. The committee welcomed the approval
of the policy, by ICRISAT’s Board of Trustees.

The committee took into consideration two papers recently developed by the Science
Council as part of a strategic study concerning product stewardship and liability in the
context of IPR: Michael Blakeney’s “Liability of CGIAR Centres and NARS partners
under intellectual property and biosafety laws arising from the supply of biological
resources”; and Rebecca Bratspies’ and Vibha Dhawan’s “A Recommended Stewardship
Framework of the Consultative Group on International Agricultural Research”.

The committee noted that it has a mandate, as set out in its terms of reference, to “keep
development in intellectual property protection under review and advise the CGIAR on
the further modification and implementation of the Centres’ IPR guiding principles and
related policies”.

The committee then reviewed and revised the draft policy to clarify outstanding
ambiguities, in the light of comments received. The revisions consisted essentially of
clarifications to some paragraphs. The revised draft policy, with changes in ‘track
changes’ mode is included as Appendix 3 to these minutes. The same draft, with the
changes accepted is included in Appendix 4. It was agreed that the Secretariat will
develop, by 9 April 2009, a short explanatory document which will include an
introductory paragraph that mentions the evolving international legal framework; the
increasing need to be able to address IPR-related issues in the day-to-day work of the
Centres; the committee’s mandate; and the collective expertise of its members. The main
part of the document will consist of a paragraph-by-paragraph explanation of the draft
policy, including examples. The final GRPC-approved explanatory document and policy
will be sent to the Chair of the CGIAR and the Chair of the Alliance Executive.

G. Patents and Plant Breeding
Victoria provided an update concerning the enola bean case. She informed the committee
about the amicus brief, filed by CIAT, with support from CAS-IP. Oral arguments will be
heard in the Court of Appeals for the (US) Federal Circuit (CAFC) for patent appeals, on
3 April, 2009.

The presentation also covered recent developments in patent law, agreements and other
intellectual property areas dealing with agriculture and plant breeding particularly noting
a letter sent by scientists at public institutions to the US Environmental Protection
Agency (EPA). This letter expressed the concerns of scientists about restrictive
conditions under which they receive material from the private sector. Victoria’s
presentation is included as Appendix 5 to these minutes.

Orlando de Ponti described the evolution of policy positions within the International Seed
Federation (ISF) concerning the coexistence of plant variety protection and patent
protection.


In subsequent discussion, it was noted that the new trend in making patent applications
for ‘native traits’ (endogenous traits) could have significant impacts on the availability of
a broad range of materials for research and breeding. It was also noted that there is a
trend, in the US, towards patenting traits and functions, and not genes/gene sequences per
se.

Wednesday 18 March

I. Using the SMTA, including addressing the outcomes of the Meeting of Experts on
the SMTA and MLS, with consideration of distribution for non-food/feed purposes,
direct use by farmers, reporting, etc
Eng Siang Lim joined the committee by telephone for the discussion of the policy
concerning distributions of materials for non-food/non-feed purposes. The committee
expressed its appreciation for Lim’s important insights.

Following the telephone call, the committee reviewed the draft MTA for non-food/non-
feed purposes that had been developed by the Secretariat, and made recommendations for
further revisions. The Secretariat will make those revisions and circulate it for the
approval of the committee members. Once approved by the GRPC, Emile will forward
the GRPC-approved draft policy (GRPC 23) and associated draft MTA to the Alliance
Executive for approval.

The committee reconsidered its previous recommendation as follows:
“The committee noted the importance of the principle that the CGIAR Centres
should make PGRFA as widely and openly available as possible. The committee
further noted that the Centres’ practices and policies in this regard may represent
precedents for countries to follow. The vast majority of materials distributed by
the Centres as PGRFA under Development since January 1, 2007 has not been
subject to additional conditions, and therefore could have been distributed as
PGRFA. The committee recommended that the Centres adopt a ‘best practice’ of
distributing improved germplasm as PGRFA, and only distribute it as PGRFA
under Development when it is necessary to have additional conditions to those
included in the SMTA.* Those conditions must be consistent with the Treaty, the
SMTA, and the Policy of the Alliance of CGIAR Centres on Intellectual Assets,
when it has been adopted.

The committee noted that while the Centres’ designation of their improved
germplasm as PGRFA under Development should be limited to special
circumstances, it should still be open for Centres to do so, where appropriate,
including where that germplasm is derived from materials accessed from the in

*
Article 6.6 of the SMTA states: “Entering into a material transfer agreement under paragraph 6.5 [i.e., as
PGRFA under Development] shall be without prejudice to the right of the parties to attach additional
conditions, relating to further product development, including, as appropriate, the payment of monetary
consideration.”


trust collections before the entry into force of the Agreements between the Centres
and the Governing Body of the Treaty.”

In light of comments received from IRRI, the committee reconsidered the issue, and
recommended that:

All material in the in trust collections should be distributed as normal PGRFA.
•
Materials from the Centres’ breeding programmes can be distributed as PGRFA
•
under Development. The committee discouraged Centres from exercising the
option to include additional terms that restrict availability.
Reports to the Governing Body should differentiate between PGRFA, PGRFA
•
under Development with additional conditions, and PGRFA without additional
conditions.

J. Question and answer session regarding update papers
The committee noted that the World Intellectual Property Organization (WIPO) is
coordinating technical assistance at regional and national levels for the development of
traditional knowledge protection laws.

The draft Guidelines for the Acquisition and Use of Traditional Knowledge by CGIAR
Scientists will be forwarded, by Emile to the Chair of the Alliance, for subsequent
distribution to the Alliance Executive.

K. Roundtable on additional genetic resources policy issues of relevance to the
CGIAR
The committee reconsidered the two papers developed by the Science Council, “Liability
of CGIAR Centres and NARS partners under intellectual property and biosafety laws
arising from the supply of biological resources” and “A Recommended Stewardship
Framework of the Consultative Group on International Agricultural Research”.
Committee members expressed their appreciation of the papers, particularly the case
studies in the paper by Bratspies and Dhawan. It was noted that the both papers rely
disproportionately on US and European laws and contexts. In addition, it was noted that
both papers appear to assume that once a patent is granted in a single jurisdiction, the CG
Centres and actors in other countries are bound by those patents; it must be recalled that
IPRs are territorially bound in application to the jurisdictions granting them.

It was noted that uncertainties about liability and stewardship are making it difficult for
public sector organizations, including the Centres, to finalize agreements with private
companies. It was also noted that while it is important to implement appropriate policies,
the increasing costs of complying with liability and other forms of regulation ends-up
working to the advantage of big companies that can afford the high costs of compliance.

Committee members then identified the following issues, of particular relevance to the
CGIAR, which will need to be addressed on a system-wide basis:

Implementing agreements with the Governing Body.
•


Acquiring and distributing PGRFA outside the scope of the Treaty.
•
Evolving international frameworks that address animal, fish, tree, and microbial
•
genetic resources
Partnerships with the private sector.
•
Centres’ generation and use of intellectual assets.
•
Liability and stewardship.
•
Science and quality control risk management awareness.
•
Building-up capacity within the system to be able to address complex legal issues.
•
Developing a framework to promote connections to farmers, creating
•
opportunities for farmers to inform Centres’ policy priority-setting, and
‘translating’ the relevance of the Centres’ work to farmers.
Evolving policy frameworks concerning farmers’ rights, and the contributions
•
made by the Centres to their realization, both at the level of programmatic
activities, and contributions, based on those activities, to meetings of the
Governing Body of the Treaty.
Evolving policy frameworks in support of sustainable use of PGRFA and
•
contributions Centres can make to them.
Multi-stakeholder perspectives to give ‘heads-up’ to the Centres on nascent policy
•
issues, and to help the Centres ‘think-through’ policy options. Given the kinds of
issues that may arise in the future, it may be necessary to increase representation
on the GRPC (or similar body) of people with expertise in microbial, animal, and
other kinds of agricultural genetic resources beyond plants.
Day-to-day technical assistance dealing with the complexities of access and
•
benefit-sharing rules (both those that exist, and the complexities that arise when
they don’t exist).
Genetic resources impact assessments, particularly with respect to the
•
introduction of exotic species, varieties and breeds.

L. Future of the GRPC in the framework of the new CGIAR – suggestions to put to
the Transition Management Team
Emile Frison provided an update of the CGIAR Change Management process. A new
Consortium Board will be created within the next year. It will be up to the Consortium
Board to decide what kinds of committees it needs to provide advice.

The committee reiterated its earlier observation (GRPC 24) that the CGIAR system will
continue to need expert advice on genetic resources and other legal and regulatory issues
in the future. The committee reiterated its earlier recommendation that a committee like
the GRPC should be established to provide advice to the Consortium Board.

The Chair of the committee sent a message to Kathy Sierra on 18 December 2008,
regarding the future roles and activities of the GRPC and CAS-IP. On 8 January 2009,
Ren Wang replied, saying that the issue will be addressed by the Transition Management
Team. The committee agreed that the Chair will send a follow-up message to Kathy
Sierra, as the Chair of ExCo, confirming its opinion concerning outstanding genetic
resources policy issues that will need to be addressed in the years to come, the
importance of maintaining a mechanism for obtaining advice on these issues from a


multiplicity of perspectives both inside and outside the CGIAR, and indicating the
committee’s willingness to continue to serve if called upon to do so.

M. ICWG-GR request to consider coordinating a system-wide process to develop a
policy on the implementation of the risk assessment management guidelines
The request by the ICWG-GR to the GRPC was introduced by Michael. The committee
members noted with appreciation the work that has been done in the development of the
risk management guidelines in the context of the Global Public Goods II project. The
committee noted that the current drafts are too elaborate to be implementable. The
committee noted the importance of having a coordinated system-wide approach to risk
management and recommended that the SGRP develop a more manageable, user-friendly
framework, which could be considered by GRPC 26 for recommendation to the Alliance.
Furthermore the committee noted the need for consideration of science risk management
including quality control management.

N. Update on the development of CAS-IP’s License Central
Guat Hong Teh presented the ongoing work of CAS-IP in the development of a web-
based contract tool, to be used by the CGIAR Centres. The first type of document, which
will be available on line later this year, will be memoranda of understanding.

The committee welcomed the development of license central and recommended that
additional funds be made available to CAS-IP for further work on this tool. The Chair of
the committee will also send a letter emphasizing such a recommendation to the Director
of the CGIAR.

The committee commented on the importance of such a tool for the Centres with regards
to developing a better capacity and understanding of the language and use of agreements.
Such capacity will be needed in particular by the Centres to implement the international
assets policy.

Thursday 19 March

O and P. Review/update of the GRPC work plan, and adoption of main conclusions.
The committee amended the GRPC work plan, which is attached as Appendix 2 to these
minutes.

Q. AOB and next meeting
GRPC 26 will be held Sept 22-24, in Rome.


Appendix 1: GRPC 25/A.1

GENETIC RESOURCES POLICY COMMITTEE
25th Session
WorldFish Center
Penang, Malaysia
17-19 March 2009
DRAFT AGENDA

Tuesday 17 March

9:00 – 9:30 A. Welcome, introductions, logistics, adoption of agenda.
(Introduced by Carlos Correa, Emile Frison, Stephen J. Hall)
Documents
A.1. Agenda
A.2. ICWG-GR teleconference concerning GRPC 24 report and
GRPC 25 agenda

9:30 – 10.00 B. Overview of activities from GRPC 24 work plan
(Introduced by Michael Halewood)
Documents
B.1. GRPC 24 work plan (annotated)

10:00 – 10:30 Coffee/Tea break

10.30 – 11.15 C. Report on the intersessional activities of the Governing Body of the
International Treaty, including the Meeting of Experts on the SMTA and
MLS
Documents
C.1. Second Technical Consultation on Information Technology
Support for the Implementation of the Multilateral System of
Access and Benefit Sharing

11.15 – 12.00 D. Report on intersessional activities of the Commission on Genetic
Resources for Food and Agriculture
(Introduced by Dan Leskien)
Documents
D.1 SGRP/Bioversity coordinated papers concerning sectoral
approaches to ABS

12.00 – 12.30 E. FAO/Bioversity/International Treaty Secretariat Joint Programme on
Treaty Implementation
Documents


E.1 Capacity Building Project for Developing Countries on
Implementation of the Treaty and its Multilateral System of Access
and Benefit-sharing

12:30 – 13:30 Lunch

13.30 – 15.00 F. Revising/developing system-wide policy on intellectual assets
(Introduced by Emile Frison)
Documents
F.1 Collected responses from Director Generals of the CG Centres
regarding the proposed Intellectual Assets Policy Statement
F.2 Liability of CGIAR Centers and NARS partners under IP and
biosafety laws arising from the supply of biological resources
(Michael Blakeney)
F.3 A Recommended Stewardship Framework for the CGIAR
(Rebecca Bratspies and Vibha Dhawan)
F.4 Draft Summary of Discussion on the GRPC, “Draft Intellectual
Assets Policy Statement”, held at Maputo, 30 Nov. 2008


15:30 – 17:00 F. Revising/developing system-wide policy on intellectual assets (cont’d)

Group dinner

Wednesday 18 March

8:30 – 9:00 G. Patents and plant breeding. A discussion led by Orlando de Ponti with
presentation by Victoria Henson-Apollonio, including an update on enola,
patent case law, etc.
Documents

9.00 – 10.00 H. Assessment of Centres' impact concerning technology transfers as
benefit-sharing, and contributions to the implementation of farmers' rights.
(Introduced by Victoria Henson-Apollonio)
Documents

10:00 - 10:30 Coffee/Tea break

10:30 – 12:00 I. Using the SMTA, with consideration of distribution for non-food/feed
purposes, direct use by farmers, reporting, etc
Documents
I.1 Draft MTA for non-food/feed purposes with changes
I.2 Draft MTA with changes approved
I.3 Notes on MTA (including Policy)


I.4 Revised Guide for the CGIAR Centres Use of the SMTA
I. 5 The SMTA, commercialization and distribution to farmers
I.6 Reporting template for Centres

12.00 – 12.30 J. Question and Answer session regarding update papers
Documents
J.1 Report of the CBD meeting on Group of Legal and Technical
Experts on Concepts, Terms, Working Definitions and Sectoral
Approaches. 2 – 5 December 2008. Windhoek, Namibia
J.2 Update on WIPO
J.3 Update on Guidelines for Traditional Knowledge practices in
the CGIAR Centres

12:30 – 13:30 Lunch

13.30 – 14.30 K. Roundtable on additional genetic resources policy issues of relevance
to the CGIAR
(Introduced by Carlos Correa)

14:30 – 15:30 L. Future of the GRPC in the framework of the new CGIAR – suggestions
to put to the Transition Management Team (TMT)


16.00 – 17.00 M. Request from ICWG-GR regarding risk management guidelines

17:00 – 17:30 N. Update on CAS-IP’s License Central

Group dinner

Thursday 19 March

08:30 - 10:00 O. Review/update of the GRPC work plan
(Introduced by Emile Frison)
Documents
M.1 minutes GRPC 24

10:00 - 10:30 P. Adoption of main conclusions, action list and report

10:30 - 11:00 Coffee/Tea break and Group photo

11:00 - 11:30 P. Adoption of main conclusions, action list and report (continued)

11:30 - 12:00 Q. AOB, next meeting, closing


12:00- 13:30 Lunch

13:30 – 16:00 Workshop: Policy issues affecting the conservation and use of aquatic
genetic resources


Appendix 2: GRPC Work Plan (as amended at GRPC 25)

Issue Activity/Input Outputs Timetable
Consultations with The GRPC Secretariat will work Documents Whenever the
the legal experts closely with the Secretariat of prepared for meeting is held
convened by the the Governing Body to develop Expert Group in 2009
GB secretariat submissions to the Second Meeting
International Expert Group
Meeting.
Reporting on uses Secretariat will revise the Revisions of June 2009
of the SMTA recommendations in the Centres’ the Centres’
Guide to Using the SMTA. Guide

Centres will submit reports on Submissions
acquisitions and transfers using to the
the SMTA, to the third Session Governing
of the Governing Body. Body

Template with Secretariat will develop next Revised draft
optional conditions draft of the template after the template
for PGRFA under intellectual assets policy has
Development been finalized and adopted.
Guidelines for Secretariat will forward the draft End of March End of March
Centres acquisition guidelines and draft GAA to the 2009
of germplasm AE for approval via E-mail.
Guidelines for the The Guide for the Centres’ use Revised guide 19 March 2009
Centres’ use of the of the SMTA will be further sent to the
SMTA revised to include work on the committee
template with optional members
conditions for PGRFA under
Development, best practices for Comments 19 April, 2009
associated information, and from
system-wide policies on members to
distributing materials for non- Secretariat by
food/feed, acquiring new 19 April,
materials and intellectual assets 2009
if/when they are adopted.

The revisions in the guide should Final revision
be highlighted. of the Centres
Guide
(version 2)


Including materials Secretariat to prepare Draft message July 2009,
in the MLS communication to the Director following GB3
of the CGIAR concerning the
message from the GB Secretariat
to Treaty Parties requesting them
to provide a list of the
collections they are including in
the MLS.
Distributing Secretariat will revise the MTA Revised draft End of April
materials for non- and send it to committee for MTA 2009
food/feed purposes comments/approval.

The draft policy document and Comments End of May
draft MTA will be forwarded to from 2009
the AE Chair for distribution to members
AE for comments/approval.
Message to GRPC 26??
AE Chair
Guidance for Emile will forward the draft E-mail
Centres’ research guidelines to the AE for message to
involving approval via e-mail. AE, copied to
traditional ICWG-GR.
knowledge
CAS-IP will prepare information Considered/ap
document to be sent to WIPO proved
and UN Permanent Forum for guidelines
Indigenous Peoples.
Report to
GRPC 25
Policy on Secretariat will write Draft 9 April 2009
intellectual assets explanatory document. CAS-IP overview
will contribute as well. document

Explanatory document will be Comments 24 April 2009
sent to committee members.

Committee members to Revised
comment/approve. overview
document

Draft policy and explanatory
document sent to the Chair of the
AE and Chair of the CGIAR.


Implementation of CAS-IP to conduct a survey of Survey GRPC 26
the IA policy current and future capacity in
legal and IP across the Centres.
Assessment of CAS-IP will draft paper for Draft paper Before GRPC
Centres’ impact presentation to the GRPC. 26
concerning:
1. technology
transfers as
benefit-sharing,
and
2. contributions to
the implementation
of Farmers’ Rights
Demand driven Secretariat will continue to Update papers GRPC 26
GRPC agenda consult systematically with the GRPC by
setting process ICWG-GR, AE. Secretariat

The Chair will send a message to Message from March 2009
the ICWG-GR executive. the Chair
Developments at Secretariat will prepare short Update papers GRPC 26
CBD, WIPO, update paper(s) summarizing
WTO, other bodies relevant developments.

CGIAR Centres will be
represented in relevant meetings.
Cartagena Protocol Monitoring progress of the Update paper GRPC 26
on Biosafety international meetings.
(Cross)-sectoral Secretariat will continue work Draft papers GRPC 26
approaches to ABS with University of Louvain to and or
develop paper on AMiGR to progress
submit to the 12th session of the report
Commission.

Bioversity will make
contributions to Plant, AnGR
sectoral papers for the
Commission.

Lead development of paper,
through SGRP, on impact of
climate change on
interdependence.


Patenting CAS-IP to write 3 page Short paper GRPC 26
strategies document on patenting trends,
including focus on developing
countries.
License Central Message to CGIAR Director Message
recommending additional funds
for License Central.
GRPC at Chair to report to business Chair’s report November
ExCo/Business meeting/ExCo. 2009
meeting
GRPC in the Follow-up letter to Kathy Sierra Letter to
Change Process from the Chair of the committee. Kathy Sierra


Appendix 3:

GRPC proposal:

Policy of the Alliance of CGIAR Centres on Intellectual Assets*

Preamble

The mission of the CGIAR is: To achieve sustainable food security and reduce poverty
in developing countries through scientific research and research-related activities in the
fields of agriculture, forestry, fisheries, policy, and environment. The policy on
intellectual assets of the Alliance of International Agricultural Research Centres
supported by the Consultative Group on International Agricultural Research (CGIAR) is
driven by the mission of the CGIAR and the imperative that the products of the Centres'
research should be available without restriction. [the order of these two sentence has
been reversed]

The Centres work with a wide range of partners, including national agricultural research
systems (NARS), advanced research institutes (ARIs), civil society organizations,
regional and international intergovernmental organizations and increasingly, private
Halewood, Michael 18.3.09 8:04
sector. The Centres are supported by funding from countries, international and regional
Deleted: private sector companies, and
organizations, and private entities. The Centres produce, manage and provide access to
the products of their research and development for use by, and for the benefit of, the
poor, especially farmers in developing countries.

Centres hold their in-trust collections of germplasm for the benefit of the world
community, in accordance with agreements signed by Centres and the Governing Body
of the International Treaty on Plant Genetic Resources for Food and Agriculture
(International Treaty).†

Objective

The objective of this policy is to establish common standards and procedures for the
CGIAR Centres regarding the acquisition, management and release of intellectual assets.

All policies of CGIAR Centres that affect the acquisition, management and release of
intellectual assets shall conform with this policy.

Definitions

*
Upon approval by the Alliance, this policy will replace the ‘Guiding Principles for the Consultative Group
on International Agricultural Research Centres on Intellectual Property and Genetic Resources,’ 1996. It
does not include issues relating to stewardship and liability. It is anticipated that separate policies will be
Deleted: yet
developed to address those issues in the future.
†
The text of these agreements is available at: Halewood, Michael 18.3.09 8:05
http://www.sgrp.cgiar.org/sites/default/files/AgreementwithCentresfinal.doc Deleted: the policy will be expanded

‘Intellectual assets’ refers to all products of research and development activities, Deleted: ‘
including, but not limited to: improved germplasm, technologies, software, information, Halewood, Michael 18.3.09 4:26
publications, vaccines, databases, methodologies and know-how. Deleted: the Centres’
Formatted: Normal, Left
‘Market segment’ refers to restrictions including territorial and/or field of use.
Deleted: that
General conditions of access to Centers’ intellectual assets Halewood, Michael 18.3.09 2:43
Deleted: remains
1. The Centres will make their intellectual assets globally available without restriction, Halewood, Michael 18.3.09 2:37
Deleted: without restriction, at no cost or
subject to the following exception: minimum administrative costs
When it is indispensable for the effective utilization or further improvement of Deleted: and
Centres’ intellectual assets, the Centres may grant limited exclusivity for Halewood, Michael 18.3.09 2:49
commercialization in a defined market segment, for a limited period of time, Deleted: will

provided they continue to make the intellectual asset available, for research and Halewood, Michael 18.3.09 2:44
Deleted: that the
development in developing countries as well as for ARIs in support of the
CGIAR mission.
Deleted: remains
2. The Centres will not seek or assert intellectual property rights‡ over their intellectual Deleted: without restriction, at no cost or ... [1]
assets, subject to the following exception: minimum administrative costs,
Deleted: nd
When it is indispensable for the effective utilization or further improvement of Halewood, Michael 18.3.09 3:00
Centres’ intellectual assets, the Centres may seek or assert or allow third parties to Deleted: shall
seek or assert intellectual property rights over the Centres’ intellectual assets, Halewood, Michael 18.3.09 2:59
provided they continue to make the intellectual asset available for research and Formatted ... [2]
development in developing countries as well as for ARIs in support of the Halewood, Michael 18.3.09 2:45
Deleted: shall remain
CGIAR mission.
Deleted: without restriction, at no cost or ... [3]
3. The Centres will not use their intellectual assets with the sole intention to raise income. minimum administrative costs,
Deleted: and
The Centres may charge financial compensation in return for providing access to
their intellectual assets, on the condition that this does not divert the Centres from
Deleted: Conditions of access to Centres’ ... [4]
their research agendas. However, the Centres will continue to make the intellectual assets that
intellectual asset available for research and development in developing countries Deleted: i
as well as for ARIs in support of the CGIAR mission. Halewood, Michael 18.3.09 4:29
Deleted: e inputs subject to

Incorporation of third party intellectual assets Halewood, Michael 18.3.09 4:31
Deleted: ies’
4. Centres may only enter into agreements concerning the use of intellectual assets of
Deleted: property or contractual rights
third parties subject to IPRs or contractual rights that restrict the availability of the
resulting products for commercialization, research or development in developing Deleted: will
countries , when: a) the intellectual asset the Centre is producing will result in significant Halewood, Michael 18.3.09 3:37
improvements to food security and or poverty alleviation in the countries where it can be Deleted: use
Deleted:
‡
Concerning copyright, which normally vest automatically upon the creation of a ‘work’, see paragraph 6 Halewood, Michael 18.3.09 3:36
below. Deleted: in ways that are inconsistent with the [5]
...
conditions set out in paragraph 1 above

made available, and, b) no equivalent intellectual asset is available from other sources
under no or less restrictive conditions.

Transparency
Deleted: Public disclosure
5. The Centres will promptly make public the justification for, and describe the
conditions of, their granting limited exclusivity, or seeking or asserting (or allowing third
parties to seek or assert) intellectual property rights (other than copyright) over their
intellectual assets, particularly when availability in developing countries is affected.
Centres will also make public the justification for entering into agreements described in
paragraph 4.
Deleted: The source and amount of income
received for providing access to intellectual assets
will be made public.
Dissemination of research results
Deleted: and the conditions of those agreements.
6. The Centres will publish their research and development results in a timely manner and
in a way that allows open access. This includes results of research and development that
Deleted: shall
is carried out by the Centre itself, or in partnership with another organization. The
Centres will allow the reproduction and distribution of their copyrighted works by third
parties without the need to obtain permission from the Centres, provided that proper
citation is made and the work is not altered.

Preventing misappropriation

7. The Centres should take action, as appropriate, to pre-empt intellectual property claims
over their intellectual assets by others without the Centres’ authorization.

8. The Centres shall abide by the ‘CGIAR's Ethical Principles Relating to Genetic
Resources,’§ and shall respect the rights of traditional knowledge holders by seeking their
prior informed consent for the documentation, use and publication of information
associated with their traditional knowledge, consistent with national and international
law.

§
These guidelines can be found at [URL]

Appendix 4:

GRPC proposal:

Policy of the Alliance of CGIAR Centres on Intellectual Assets*

Preamble

The mission of the CGIAR is: To achieve sustainable food security and reduce poverty
in developing countries through scientific research and research-related activities in the
fields of agriculture, forestry, fisheries, policy, and environment. The policy on
intellectual assets of the Alliance of International Agricultural Research Centres
supported by the Consultative Group on International Agricultural Research (CGIAR) is
driven by the mission of the CGIAR and the imperative that the products of the Centres'
research should be available without restriction.

The Centres work with a wide range of partners, including national agricultural research
systems (NARS), advanced research institutes (ARIs), civil society organizations,
regional and international intergovernmental organizations and increasingly, private
sector. The Centres are supported by funding from countries, international and regional
organizations, and private entities. The Centres produce, manage and provide access to
the products of their research and development for use by, and for the benefit of, the poor,
especially farmers in developing countries.

Centres hold their in-trust collections of germplasm for the benefit of the world
community, in accordance with agreements signed by Centres and the Governing Body of
the International Treaty on Plant Genetic Resources for Food and Agriculture
(International Treaty).†

Objective

The objective of this policy is to establish common standards and procedures for the
CGIAR Centres regarding the acquisition, management and release of intellectual assets.

All policies of CGIAR Centres that affect the acquisition, management and release of
intellectual assets shall conform with this policy.

Definitions

*
Upon approval by the Alliance, this policy will replace the ‘Guiding Principles for the Consultative Group
on International Agricultural Research Centres on Intellectual Property and Genetic Resources,’ 1996. It
does not include issues relating to stewardship and liability. It is anticipated that separate policies will be
developed to address those issues in the future.
†
The text of these agreements is available at:
http://www.sgrp.cgiar.org/sites/default/files/AgreementwithCentresfinal.doc

‘Intellectual assets’ refers to all products of research and development activities,
including, but not limited to: improved germplasm, technologies, software, information,
publications, vaccines, databases, methodologies and know-how.

‘Market segment’ refers to restrictions including territorial and/or field of use.

General conditions of access to Centers’ intellectual assets

1. The Centres will make their intellectual assets globally available without restriction,
subject to the following exception:

When it is indispensable for the effective utilization or further improvement of
Centres’ intellectual assets, the Centres may grant limited exclusivity for
commercialization in a defined market segment, for a limited period of time,
provided they continue to make the intellectual asset available, for research and
CGIAR mission.

2. The Centres will not seek or assert intellectual property rights‡ over their intellectual
assets, subject to the following exception:

When it is indispensable for the effective utilization or further improvement of
Centres’ intellectual assets, the Centres may seek or assert or allow third parties to
seek or assert intellectual property rights over the Centres’ intellectual assets,
provided they continue to make the intellectual asset available for research and
CGIAR mission.

3. The Centres will not use their intellectual assets with the sole intention to raise income.

The Centres may charge financial compensation in return for providing access to
their intellectual assets, on the condition that this does not divert the Centres from
their research agendas. However, the Centres will continue to make the
intellectual asset available for research and development in developing countries
as well as for ARIs in support of the CGIAR mission.

Incorporation of third party intellectual assets

4. Centres may only enter into agreements concerning the use of intellectual assets of
third parties subject to IPRs or contractual rights that restrict the availability of the
resulting products for commercialization, research or development in developing
countries , when: a) the intellectual asset the Centre is producing will result in significant
improvements to food security and or poverty alleviation in the countries where it can be

‡
Concerning copyright, which normally vest automatically upon the creation of a ‘work’, see paragraph 6
below.

made available, and, b) no equivalent intellectual asset is available from other sources
under no or less restrictive conditions.

Transparency

5. The Centres will promptly make public the justification for, and describe the
conditions of, their granting limited exclusivity, or seeking or asserting (or allowing third
parties to seek or assert) intellectual property rights (other than copyright) over their
intellectual assets, particularly when availability in developing countries is affected.
Centres will also make public the justification for entering into agreements described in
paragraph 4.

Dissemination of research results

6. The Centres will publish their research and development results in a timely manner and
in a way that allows open access. This includes results of research and development that
is carried out by the Centre itself, or in partnership with another organization. The
Centres will allow the reproduction and distribution of their copyrighted works by third
parties without the need to obtain permission from the Centres, provided that proper
citation is made and the work is not altered.

Preventing misappropriation

7. The Centres should take action, as appropriate, to pre-empt intellectual property claims
over their intellectual assets by others without the Centres’ authorization.

8. The Centres shall abide by the ‘CGIAR's Ethical Principles Relating to Genetic
Resources,’§ and shall respect the rights of traditional knowledge holders by seeking their
prior informed consent for the documentation, use and publication of information
associated with their traditional knowledge, consistent with national and international
law.

§
These guidelines can be found at [URL]

Appendix 5

Patents and Plant
Enola Patent
Breeding

1 2

Enola patent Enola patent reexamination

Larry Proctor, D.B.A. Pod-Ners, filed a patent CIAT requested a reexamination in the
application on November 15, 1996 USPTO (Action had to be an ex partes
procedure, based on the filing date of the
U.S. Patent # 5,894,079 issued April 13,
original patent application.)
1999, with 15 claims
The reexamination was filed December 20,
2000
An application for reissue of the Patent was
filed by Proctor on January 31, 2001
Reexam and reissue merged June13, 2001
3 4

1

Appendix 5

Recent events
Enola patent reexamination

Where were we in this story at the last On January 2009, CIAT filed an Amicus Brief to
support the USPTO
GRPC meeting?
This brief was prepared, pro bono, by the law firm
On April 19, 2008 the Board of Patent
Morrison & Foerster (MoFo), as a result of a request
Appeals and Interferences (BPAI, ultimate
by CAS-IP team member, Peter Bloch
appeals board in the USPTO) rejected all of
An additional brief was filed by the Government of
the claims in the reissue application.
Mexico; the CIAT brief was coordinated with the
On June 17, 2008, Proctor filed an appeal Mexican brief and the brief filed by the USPTO.
with the Federal court, the CAFC.
This appeal is case#2008-1492, Pod-Ners vs.
the USPTO 5 6

The CIAT Amicus brief argues
Enola Patent Reexam

Yellow beans are not new and are obvious
The CIAT Amicus brief points out:
• That if this patent were to stand that it would Allowing such broad claims, based on a color,
interfere with CIAT’s ability to provide yellow
would undermine the patent system –many
beans to everyone, particularly people and
frivolous utility patent applications would be
institutions in the U.S., especially those
institutions that work to help poor farmers filed
• Yellow beans are not new, even in the U.S.
• That the written description, not withstanding the
deposit of “Enola” seeds in a Budapest
Depository, is indefinite. (What is the role of such
deposits, especially as there will be some natural
variation in deposits of biological material?)
7 8

2

Appendix 5

The CIAT Amicus brief argues

Patent deposits are not a substitute for clear
written descriptions
CIAT would no longer be able to distribute
yellow beans without threat
If the CAFC does not uphold the USPTO, the
question of validity should be remanded (sent
back) to the USPTO to take into account all of
the types of yellow beans that have been
distributed by CIAT over the years
9 10

The Enola matter is scheduled to be held on
Friday, April 3, 2009, with Pod-Ners and the Patent update
PTO solicitor having 15 minutes each for
oral argument.

Oral transcripts will be available
as podcasts from the CAFC site,
24 hrs. later
11 12

3

Appendix 5

Recent Activity in U.S. case law “Quanta”

Does the buying of the seed, mean that the
Supreme Court Decides Quanta v. LG Electronics,
__ U.S. __ (2008), rights on this seed are exhausted?
• 19–page unanimous decision that provides some new life
“When a self-replicating living invention is
to the doctrine of patent exhaustion
sold, does the purchaser have a right to
reproduce that invention to make one – or
thousands or more – copies?”
---Hal Wegner

13 14

One of the grounds to deny
patent exhaustion is stated in
Monsanto Co. v. Scruggs
where the court concludes that a
contrary conclusion would have
“eviscerate[d] the rights of the
patent holder.”105 There is no
citation of any authority for or
against this position nor is there
any public policy position taken
for an alternative ground to
deny the application of patent exhaustion
15 16

4

Appendix 5

17 18

Many other areas where Patent law issues
are in the news and could affect the CG
Centers

19 20

5

Appendix 5

In re Kubin (Kubin v USPTO)
• Obviousness --Rejection of claims to gene
sequences, arguments heard January 9 in CAFC
Jacobsen vs. Katzer et al
• Validity of OS Licenses, decided by the CAFC,
July 13, 2008

21 22

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