Message-ID: <v03007800afe85177eef5@[207.100.25.23]> Date: Tue, 8 Jul 1997 16:23:00 -0400 From: Edward Hammond <mailto:hammond@RAFIUSA.ORG> Subject: Quinoa patent/John Daly To: mailto:DEVEL-L@AMERICAN.EDU
July 8, 1997TO: John Daly FROM: Pat Mooney, RAFI RE: Your e-mail on quinoa patent
I read your e-mail with interest when I returned from New York last week. I regret that childrens' holidays and work pressure made it impossible for me to reply sooner. There are a few points that require a RAFI's considered response,
1. FINANCIAL REPORT: I am afraid that you have left others with the very wrong impression that RAFI's financial affairs are not accessible on the internet. This is incorrect. The files are available as described in the "PDF" format. If you can't utilize this format please send a message to our Ottawa office and we will send you our full annual report by more conventional means.
I hope you were impressed by our website. We are one of the very few non-governmental (or, for that matter, governmental or commercial) organizations that publishes its detailed financial statements in the public domain. You have access to full information regarding our Board of Trustees; our funding partners; our programs; and our budget. Please feel free to use this information as you wish. It is available precisely for the purpose of public accountability and as an appropriate means to ensure that critics have an opportunity to express their opinions effectively.
2. QUINOA PATENT DISAGREEMENT: We obviously disagree on the substance, the implications, and the principles involved in the Johnson/Ward patent. RAFI was - and is - in touch with a number of patent lawyers both in industrialized countries and in Bolivia. After twenty years of experience, it is our considered opinion that the continued existence of the patent poses a concern to quinoa growers in the Andes.
Beyond the specific claims of the patent (which I have reiterated for Dr. Ward in an exchange you have already seen and which I can only encourage you to review) there are three modern realities of the patent system that have prompted RAFI to work with Andean farmers, NGOs, and governments on this patent:
(A) There is a particular ambiguity to all patents related to living organisms that leaves them especially vulnerable to interpretation. The effectiveness of any "interpretation" in civil law depends heavily upon the legal talents of those who defend the patent. Generally, those with the deepest pockets win. Thus, the ultimate scope of this patent claim is in neither of our hands. This fact requires us to examine any such patent with considerable caution.
(B) Unless Johnson and Ward drop it, this patent still has many years to run and could, at any point, be picked up by another party with a different set of interests. Nestec, for example, is a subsidiary of Nestle and has an active interest in quinoa processing patents. Were a corporation the size of Nestle to pick up or obtain a license for the Johnson/Ward patent, our concern would increase. Given that the patent requires renewal during the six month period beginning this October, we are concerned that the patent-holders might be tempted to sell it to a commercial interest rather than pay fees.
(C) Even if the patent does turn out to be commercially insignificant (as Dr. Ward now suggests), the principles imperiled by the patent remain. Andean farmers have lost control of Andean germplasm and, according to Ward, new patents or PVPA certificates may be pending that also contain Andean quinoa and could be financially important. Abuses of the patent system must not be accepted.
3. AID TO THE ANDES: You make the comment that Johnson and Ward were (or are) involved in a program intended to aid Andean quinoa growers. There is no suggestion from them that this is the case or that the patent had any other than a commercial purpose for them and for Colorado State University. If you have evidence to the contrary - beyond the scripted generalization about how patents and scientific research benefit everybody - I would be interested in seeing it.
4. APELAWA'S ORIGIN: It would seem that you have not read the full patent. There is extensive comment on its Andean origin and on other traditional Andean varieties. This is an important point.
5. "PATENT-HOLDERS' INTENTIONS: I must also refer you to Hope Shand's discussion with Dr. Duane Johnson regarding the application of the quinoa patent with respect to Andean exports. Please also remember that RAFI attempted to reach Dr. Ward before we wrote anything about the patent. Dr. Ward at first stated that we had not tried to reach her and then remembered that we did try. It worries us, as well, that Dr. Johnson has not offered any comment since his discussion with Hope Shand. No denial. No rebuttal.
6. TRUST AND DIALOGUE: Your inference that RAFI is spreading misinformation and distrust among Andean farmers is unfounded, unsubstantiated, and utterly improper. This indicates a lack of familiarity with ANAPQUI which you should hasten to rectify. As with all other correspondence regarding the quinoa patent, RAFI will copy this to ANAPQUI and other concerned parties in the Andes. Unless there has been a change in the last day or two, I believe that RAFI continues to be the only party in this debate that is talking directly with those most concerned - the Andean growers. I wonder why this is so?
It is irritating that you criticize RAFI for quoting Andean farmers and describe this as self-serving. What might satisfy you here? Not quote them? Pick a statement less relevant? Summarize their views for them rather than let them speak for themselves - as they did in the UN a few days ago?
7. ROAD KILL RECIPE: RAFI has dealt with intellectual property rights issues around the world since 1977. Then, as now, public sector scientists have lacked the opportunity to study the issues or understand the experiences of others. Today, with no greater information, public researchers are being forced down the intellectual property road primarily because they are offered no alternative. This is a very treacherous route for those who don't have time to study the road map. It leaves many capable scientists in the position of teen-teenagers behind the wheel of an all-too-powerful engine (patents) trying to find the gears, the brakes, and the trail. As frustrating as this might be for scientists, it is worse for those - like quinoa growers - who find themselves in the middle of the road. In the past few years, RAFI has successfully challenged the cotton "species" patent and is continuing to challenge the soybean "species" patent. Our opposition has received the broad support of many farmers' organizations and governments (including USDA). We have also identified and successfully challenged three US government patent claims on the human cell lines of indigenous peoples and played a major role in encouraging the current US Administration to change its view of such patents. As the coordinator of a tripartite intellectual property negotiating group (including South and North governments as well as industry and civil society organizations) known as the Crucible Group, RAFI has also shown its ability to find compromise and seek solutions. Your depiction of RAFI does not square with the record. That record is fully described on our home page.