agrobiodiversity and intellectural property rights

BK Joshi, Genebank, NARC, Nepal; 2023
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Intellectual Property Rights (IPR) in Agriculture
Bal Krishna Joshi, PhD
Plant Breeder and Geneticist
National Genebank (NAGRC), NARC
Kathmandu, Nepal
Mbl: 9863 020 222
joshibalak@yahoo.com
https://www.researchgate.net/profile/Bal-Joshi/research
Notes:
Through DropBox
https://www.dropbox.com/scl/fo/z0x0mu95811ahhci4
leti/h?rlkey=8cczu4yk6e6svnm3wq4t0gwn7&dl=0
Training session for Class-III In service training for agriculture officers (Agr. & Veterinary)
31 Bhadra 2080, at 10:30 - 12:00 pm
National Animal Feed & Livestock Quality Management Lab Training Hall, Hariharbhawan
Contact Person: Dr. Sabina Koirala, Livestock Development Officer, 9845440436

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Focus areas
 Understanding IPR
 Why IPR
 Types of IPR
 Status in Nepal
 International treaty, agreement and
organization
– CBD, IPGRFA, TRIPS, WIPO
 National legislation
– IPR ACT, IPR Policy, copyright act
 Agriculture related policy and strategy
– Seed act, Seed regulation, ADS,
Agrobiodiversity Policy, Biotech policy
– PVP&FR, ACU
 Plant Variety Protection
– Breeder right and farmer right
 Geographical indication
– Basmati case
 Interlaken Declaration
 Access and Benefit Sharing (ABS)
from genetic Resources and
associated Traditional Knowledge
– ITPGRFA, SMTA
– Nagoya protocol
– ABS

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Understanding IPR
 Property: Physical and Intellectual
 Intellectual Property (IP): creations of the mind such as inventions, literary,
artistic works, symbols, names, designs, images etc
 Intellectual Property Right (IPR): the rights given to people over the
creation of their minds. An exclusive right over the use of his/her creations
for a certain period of time
 The Venetian Patent Statute of March 19, 1474, established in the Republic
of Venice the first statutory patent system in Europe

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Why IPR
 Encourage the intellectual works/ Increase performance level
 Financial benefit
 Monopolize the market
 Fair competition, quality, speed up the invention
 Recognition
 Society benefit
 Conservation of native agricultural genetic resources

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Types of IPR (>10)
 Patent
 Trademark
 Trade secrete
 Copyright
 Geographical indication
 Plant variety protection
 Plant breeder’s right
 Farmer’s right…

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Patents
The products of nature
Agri Adhyapak

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Types of Patents

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Trademark

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Copyright

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Period of Protection
7
7
Life+50 yrs
5

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Agri-IPR in Nepal: Status
 Not any IPR to agricultural technology, process, products and genotypes
(except by business person)
 Individual exercise: NARC, Jugu Community, seed regulation: ownership
certificate
 Many policy and strategy talked about IPR and ABS
 Informal IPR and ABS
 Department of Industry looks after patent and trademark issues while the
Ministry of Culture, Tourism, and Civil Aviation oversees copyright issues
 Slow poison for IPR (not eligible for introduced genotypes/ techs)

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IPR in Nepal: http://iponepal.gov.np/

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Copyright: https://www.tourism.gov.np/publications/3
Nepal Copyright Registrar's Office

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Efforts on getting GI
 Akabare khursaani
 Tea
 Juju dhau
 Jumli simi
 Jumli marshi
 Ribdi gund
 Basmati rice

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International treaty, agreement and organization
Before CBD
 Heritage of humankind
 Mainly ex-situ collection
 Open and free access
 Free exploration
 No property rights
 International undertaking
 Technical issue
After CBD
 National resources
 Shift to in-situ conservation
 Negotiated access
 Share benefits
 Under property rights
 CBD + ITPGRFA + National law
 More legal issues

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TRIPS

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WIPO: https://www.wipo.int/about-wipo/en/

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In Europe:
https://europa.eu/youreurope/business/running-business/intellectual-
property/index_en.htm

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ITPGRFA
 The ITPGRFA specifies that “recipients shall not claim any
intellectual property or other rights that limit the facilitated
access to the PGRFA or their genetic parts or components in
the form received from MLS”

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1999 National Seed Policy
National Legislation
National nutritional policy and strategy
Nagoya Protocol, National Environment policy 2019
The right to food and food sovereignty Act,
Multisectoral nutrition plan II 2018-22
2018
2017 IPR Policy; ITPGRFA-MLS Implementation
Strategy and Action Plan (IMISAP)
2015 Community Seed Bank Establishment
Operational Guidelines, Agriculture Development
Strategy
Zero hunger challenge national action
plan 2016-25
2016
Food and nutritional security plan of action 2013
2009
ITPGRFA-2004
2004
2014 National Biodiversity Strategy and Action Plan
2014-2020, Agro-biodiversity Policy 1st
amendment
2013 National Seed Vision 2013-2025
2008 Community Seed Bank Program Implementation
Guidelines, Seed Act 1988 (Amendment)








 



2020 Second Nationally Determined
Contribution (NDC) 2021-2030


CBD-1992 1994 1997 WIPO-1967
Patent 1965
2002 Copyright act

 1988 Seed Act


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IP Policy
 IPR ACT, IPR Policy, Copyright act
 In 2017, the Government of Nepal formulated IP policy with the objective to make IP a
national priority, emphasizing the valuable role IP plays in global socio-economic
development.
 The Copyright Act of 2002 covers most modern forms of authorship and provides for
adequate periods of protection
 Pending Legislation/Bill Pending Parliamentary Approval

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IMISAP 2018-2025 (ITPGRFA-MLS Implementation Strategy and Action Plan)
 A guiding framework for effectively participating in MLS
Guiding strategy
– Exploration and collection
– Conservation
– Documentation
– Material for exchange
– Non germplasm base technology
– Resource utilization
– Capacity building
– Monitoring
– Germplasm exchange and import
 34 action plans and 20 programs
MoAD 2017

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Agrobiodiversity Policy 2014
Objectives
 Conservation and sustainable use of agrobiodiversity
and traditional knowledge
 Establish farmers’ right
 Fair and equitable distribution of AGRs and TK, and
benefit
 Agrobiodiversity to balance the ecosystem and in
line with the climate change

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IT related provision in Agrobiodiversity Policy
 Arrangement with MLS of ABS under IT
 Ensure the sharing of benefit
 Provision of the implementation, coordination, management of MLS-ABS
 Take the maximum advantage of IT
 Competent authority or body
 Arrangement to harmonize the provision of other treaty, convention and
other laws
 Assignment of responsibility and capacity building

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Agriculture related policy and strategy
 The ADS emphasizes on strengthening the genebank and animal genetic
resource program for the use of intellectual property right.
 Seed Act 1988 is that it recognizes ownership rights of breeders on varieties,
but it does not specify what exactly means by ownership rights
 National seed policy: protect right over seeds of local crop varieties having
distinct genetic traits
 Biotech policy: to protect the rights relating to intellectual property

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AGRs Guiding Documents: Not yet finalized
• NABSAP: National Agrobiodiversity
Strategy and Action Plan
• Agrobiodiversity Conservation and
Utilization Bill
• PPV&FR: Protection of Plant
Varieties and Farmers’ Rights
• ABS framework for AGRs including
SAP
• Revision of Agrobiodiversity Policy
and IMISAP
Concerns:
 Inclusive agriculture (all 6
components and 4 sub components
 Domestication (badel, kalich, tree
fern…)
 MLS-ABS
 Bilateral -ABS
 Import and export mechanism
 Authority for Annex-1 and non
annex AGRs
 Ownership and rights
 Nepal Annex-1/ Nepal’ IT Annex-1

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Plant Variety Protection, Plant Breeders’ Rights
 Rights granted to the breeders of a new variety
 Does not have any legal mechanism for variety protection
 Draft PVP&FR
 Registration/ release
 Ownership document
 Rights of breeders: production, sale, marketing, distribution, export nd
import
 Farmers’ rights: save, use, sow, re-sow, exchange, share, sell, right to get
benefit from using their AGRs, re-sow protected variety, as breeder?
 Researchers rights: free and complete access to protected materials for
researches use

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The International Union for the Protection of New Varieties of Plants (UPOV)
https://www.upov.int/about/en/
UPOV's mission
is to provide and
promote an
effective system
of plant variety
protection, with
the aim of
encouraging the
development of
new varieties of
plants, for the
benefit of
society.
Harmonization of all countries on plant protection

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Geographical Indication (GI)
• A geographical indication (GI) (WIPO, 2017) is a sign used on products that
have a specific geographical origin and possess qualities or a reputation that
are due to that origin.
• In order to function as a GI, a sign must identify a product as originating in a
given place.
• There is a clear link between the product and its original place of production.
• GIs are about culture, geography, traditions, heritage and traditional practices of
people and countries
• Geography rather than intellectual property

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Type of Products: GIs used
 Typically used for agricultural products, foodstuffs, wine and spirit
drinks, handicrafts, and industrial products.
Types of GI
• Protected Designation of Origin (PDO): Product names registered as PDO are those
that have the strongest links to the place in which they are made.,
• Protected Geographical Indication (PGI): emphasises the relationship between the
specific geographic region and the name of the product, where a particular quality,
reputation or other characteristic is essentially attributable to its geographical origin
• Traditional Specialties Guaranteed (TSG): highlights the traditional aspects, such as
the way the product is made or its composition, without being linked to a specific
geographical area the product being made with "traditional" ingredients, or
techniques

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Why GI protected?
• Denote quality and origin of products
• Good reputation for the product
• Preventing the product from generic products
• Protecting the domestic market from competitors
• To promote and protect names of quality agricultural products and
foodstuffs
• Conservation of native AGRs

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How are GIs protected?
• so-called sui generis systems (i.e. special regimes of
protection) special law
• Trademarks as collective or certification marks
• Consumer protection law, methods focusing on business
practices, including administrative product approval
schemes.

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Trademark and GI
• A trademark is a sign used by an enterprise to distinguish its goods
and services from those of other enterprises. It gives its owner the right
to exclude others from using the trademark.
• A geographical indication tells consumers that a product is produced in
a certain place and has certain characteristics that are due to that
place of origin of production. It may be used by all producers who make
their products in the place designated by a geographical indication and
whose products share typical qualities.

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GI around the World
 One of the first GI systems is the appellations of origin include Gruyère cheese (from
Switzerland) and French wine which were endorsed with government-issued stamp
that acts as official certification of the origins and standards of the products in
France during the early part of 20th century
 well-known examples of GIs in South Asia include Basmati rice, Himalayan waters,
Alphonso and Sindhri mangoes, Bhutanese red rice, Pakistani shu (windproof
woolen fabric) and ajrak (designs from Sindh), jasmine (Hom Mali) rice
 Darjeeling logo as well as the word are now registered as the certification
trademarks of the board under Trademarks act of 1999. The quality, reputation and
characteristics of Darjeeling tea are essentially attributable to its geographical
origin.
 Dalle khursaani

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GI in Nepal: Policy aspects
• In 2017, Nepal has approved National Intellectual Property Policy in which GI is
included
• Under section 8 Policies:
clause 2: Mentioned as Identification and promotion of GI,
clause 4: Application of IP as a national development tools under maximum
utilization of GI
• Under sub section 8.2: E. GI policy
clause 15: With focusing on specific geographical areas, GI rules will be formulated
clause 16: Arrangement of provision of GI as a IP of nontransferable right
• Under section 9. Working policy: 9.1:6
For the support to market access and value addition, producers of agri and forest
products are identified through the use of GI

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General process
of generating
information for
getting GI tag

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Geographical Indication
Jumli Maarsee Jumli Simee
A. Survey: Farmers, traders, consumers
C. Nutrition analysis
B. Market survey: Already in
practice selling with the name
of geo-location (Nepalgunj,
Kathmandu, Pokhara and Jumla
Geo coverage: All cultivating
areas of Jumla district, 2000-
3000m

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Geographical Indication and Agricultural Products in Nepal
 More than 100 agricultural products potential for geographical indication (GI) tag in
Nepal
 Informally GI are in practices for quality in many products in Nepal including
basmati rice
 Very common practices in the world to monopolize the marketing
 India has submitted application to EU for geographical indication tag to Basmati rice
 A total of 361 GIs registered in India as of September 2019. Darjeeling tea the first
GI tagged product in India (2004) [Germany with 9,499 GI]
 In addition to EU and other countries, India has also sought registration of ‘Basmati’
under copyright law in some 15-16 countries, where there is no concept of GI

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GI in Nepal?????

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Akabare: Dhankuta
Curd: Bhaktapure JuJu Dhau
Lapsi Mada: Bhaktapur
Tea:Ilam Suntala/Mandarin: Gorkha Apple: Jumla/Mustang
More than 100 agri products for GI?

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Basmati Case
 Basmati: Prince/ king of rice landraces. Basmati: नेपाली पन भएको बासमती
 Historically, ‘Basmati’ rice has been associated in the public mind as a special grain
aromatic rice grown and produced in a particular geographical region situated in the
foothills of the Himalayas, Indian sub-continent
 GI tag to basmati in India
around 60 rice
factories across
the country =
better than other
countries

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Historical Events on IPR over Basmati Rice
1997 Panel Discussion on Basmati case, NAPA
2 Sept 1997
Nepal, member of WIPO
RiceTech, US patented Basmati rice
June 2000 India opposed US patent on Basmati rice
23 April 2004
2002 RiceTech withdrew basmati rice patent
Nepal, member of TRIPS/WTO
May 2010
July 2018
11 Sept 2020
5 Oct 2020
28 Nov 2020
2 Dec 2020
7 Dec 2020
8 Dec 2020
9 Dec 2020
15 Dec 2020
16 Dec 2020
20 Dec 2020
6 Dec 2020
5 Dec 2020
29 Dec 2020
GI tag to Basmati rice in India
(7 states) by APEDA
India applied GI tag to Basmati rice in EU
Notice on GI tag to Basmati rice published in OJ of the EU
Pakistan decided to oppose India claim over GI tag in EU
GK Kharel got informed notice of OJ of the EU on GI tag to Basmati rice
Notice of OJ of the EU on GI tag to
Basmati rice published in Dekhapadhi
Notice of OJ of the EU on GI tag to
Basmati rice published in Setopati
Basmati GI tag issue entered in DI and MoICS
after application notice by APAA Nepal
Basmati GI tag issue entered
in NARC and MoALD
Proofs and
evidences collected
1st high level meeting
and decided to oppose
Oppose letter prepared and submitted
and received acknowledgement from EU
Disseminated widely through media
Meeting with NAPA
2nd High level meeting
By Bal Krishna Joshi, Dec 2020

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Global Plant of Action (GPA: FAO)
 Adopted by the relevant Governing Bodies of FAO
 Global plans of action are outcomes of a country-driven process of reporting,
analysis and discussion and are intended as comprehensive frameworks to guide
and catalyze action at community, national, regional and international levels
through better cooperation, coordination and planning and by strengthening
capacities
 Second Global Plan of Action for Plant Genetic Resources for Food and
Agriculture
 Global Plan of Action for Animal Genetic Resources and the Interlaken Declaration
 Global Plan of Action for the Conservation, Sustainable Use and Development of
Aquatic Genetic Resources for Food and Agriculture (GPA)
 Global Plan of Action for the Conservation, Sustainable Use and Development of
Forest Genetic Resources

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Interlaken Declaration
 In 2007, the International Technical Conference on
Animal Genetic Resources for Food and Agriculture, held
in Interlaken, Switzerland, adopted the Global Plan of
Action for Animal Genetic Resources and the Interlaken
Declaration.
The Global Plan of Action aims to provide a framework that supports and
increases the effectiveness of national, regional and global efforts to
sustainably use, develop and conserve animal genetic resources, to facilitate
the mobilization of resources, including adequate financial resources, and to
promote a pragmatic, systematic and efficient approach that harmoniously
addresses the development of institutions, human resources and cooperative
frameworks in animal genetic resources management

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Interlaken Declaration

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GPA for AnGR

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Access and Benefit Sharing (ABS): Germplasm and traditional knowledge
 Access and Benefit Sharing (ABS) from genetic Resources and associated
Traditional Knowledge
– ITPGRFA, SMTA, Nagoya protocol, ABS
 ABS refers to the way in which genetic resources may be accessed, and how
the benefits that result from their use are shared between the people or
countries using the resources (users) and the people or countries that
provide them (providers)
 Prior informed consent (PIC) and mutually agreed terms (MAT)
 CBD: MoFE
 ITPGRFA: MoALD

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Unaddressed issues in CBD
 Access to ex-situ collections not acquired in accordance with the convention (such
as the CGIAR)
 Farmer’s Rights, for which solutions should be sought within FAO
– Enormous contribution of farmers and farming communities
 Parties also recognized the specificity of agriculture sector
• CBD does not distinguish different categories of genetic resources (wild, domesticated,
microbial) whose conservation and sustainable use vary
ITPGRFA, CBD, NP
• Conservation (Article 5)
• Sustainable use of PGRFA for food and Agriculture (Article 6)
• Fair and equitable sharing of benefits derived from their use in harmony with the
CBD (Article 13)

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Multilateral System (MLS)
 The multilateral system can be defined as a global gene pool of a number of the most
important crop genetic resources for food security, shared and managed jointly by all
contracting parties (COPs)
 On ratifying the Treaty, countries agree to make their genetic diversity and related
information about the crops stored in their gene banks and public domains available to
all through the MLS (Article 12)
 15 CGIAR centers together maintain over 7,00, 000 samples of PGRFA in their
collections and held in FAO trust that are accessible under the terms of the Multilateral
System of the International Treaty (MLS) (Using SMTA)

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Treaty Article 13: Benefit Sharing in the MLS
13.1 Access to PGRFA
13.2(a) Exchange of information
13.2(b) Access to and transfer of
technology
13.2(c) Capacity-building
13.2(d) Sharing of monetary and other
benefits of commercialization
• CGIAR centres do not
commercialize / profit
• Partner countries take 100%
of the profits
The ITPGRFA specifies that “recipients shall
not claim any intellectual property or other
rights that limit the facilitated access to the
PGRFA or their genetic parts or components
in the form received from MLS”
Those who access genetic materials through the MLS
agree that they will freely share any new
developments with others for further research or, if
they want to keep the developments to themselves,
they agree to pay a percentage of any commercial
benefits they derive from their research into a
common fund to support conservation and further
development of agriculture in the developing world

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Benefit-sharing with India for FR13A: Commercial practice?
 Standard commercial practice is to share royalties on sales with provider
of germplasm contributing ≥25% of the commercial variety by pedigree
 Sub-1 gene (flood resistant) from Indian local rice FR13A contributes ~3%
by pedigree
 no sharing of benefit for FR13A

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SMTA (Standard Material Transfer Agreement)
• Distributing crop diversity under the SMTA ensures that material and information
remain freely available and subject to the benefit-sharing provisions of the Treaty
• Using the SMTA to do this ties the material and any products derived from it to the
access and benefit-sharing system of the Treaty and means that these lines will
always be available for others to make use of
• SMTA does not require cumulative payments (para 2 of Annex 2 to the SMTA):
When a Product contains a PGRFA accessed from the MLS under two or more
material transfer agreements based on the STMA only one payment shall be required
under paragraph 1
• Users must pay a % of sales if they commercialize a Product that is not available
without restriction to others for further research and breeding
• NARC is using SMTA

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Scope of IT and NP
CBD/NP: All GRs
except human
Treaty: All
PGRFA
Annex 1 of
Treaty but not in
MLS
MLS
• The authority to determine access to
• genetic resources (CBD, Art. 15(1)
• PGRFA (Treaty, Art. 10)
rests with national governments
and is subject to national
legislation.
• In the exercise of their sovereign rights,
the Contracting Parties agree to
establish a multilateral system of ABS –
the MLS (Treaty, Art. 10).

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Farmers’ Rights and Traditional Knowledge
 Treaty Art. 9 – Farmers’ Rights
Parties should take measures to protect and promote Farmers’ Rights, including:
– protection of traditional knowledge relevant to PGRFA
– the right to equitably participate in sharing benefits arising from the utilization of
PGRFA
– the right to participate in making decisions, at the national level, on matters related
to the conservation and sustainable use of PGRFA
 Nagoya Protocol provisions on TK
– Parties shall take measures … that TK associated with GR … is accessed with PIC and
that MAT are established with the knowledge holders (Art. 7 NP)
– Art. 12 NP obliges Parties to set up meaningful procedures for obtaining PIC and
negotiating MAT with ILCs and to provide support to communities in this regard.

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IT in NP…
 Relationship with int’l agreements and instruments, Art. 4:
– Nothing in this Protocol shall prevent the Parties from developing and implementing
other relevant international agreements (Art. 4.2)
 Nagoya does not apply when the Treaty applies (Art. 4.4)
– Where specialized international ABS instrument applies, Protocol does not apply for
Party or Parties to specialized instrument in respect of specific genetic resources
covered by and for purpose of specialized instrument
 Special considerations, Art. 8:
– In the development and implementation of its ABS legislation or regulatory
requirements, each Party shall consider the importance of genetic resources for food
and agriculture and their special role for food security (para (c))

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Access to Germplasm and Payments
 As MLS does not cover the whole (even in the Annex I crops), each crop is
divided into two:
– accessible on the SMTA
– accessible on bilateral contract under NP
 Payments on the MTA go to the provider, but if we use SMTA, it goes to
the BSF (do not go back to the provider itself)
 Provider may opt for bilateral contract under the NP

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Scope
• Among the total 24300
species in Nepal, 28% are
agricultural genetic
resources (AGR)
• About 40% AGRs lost
from Nepal
• Only 15% AGRs
conserved
• 95% of germplasm in
research and
development from
outside the country
Joshi et al 2019

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Scope
यान्त्रिकीकरण
विविधता
मे
ल
ा
सहभागिता मुलक बागल
प्रजनन
विविधता
विल्ड
स्क
ू
ल
विनो

59/63
Issues
22
47
9
33
1
7
3
7
Nepal Outside Nepal Outside Nepal Outside Nepal Outside
Rice Wheat Potato Lentil
Area coverage: 90%
Joshi et al 2016

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Issues
india
क
ृ वि
माटो
गबउ
शक्ति
गबषाधी
भण्डार
झारनाश
क
मल
पागन
• अष्ट तत्व क
ृ वि
• पन्च गुणीय उपज

61/63
References
 IPR POLICY
 IPR ACT
 COPY RIGHT ACT
 AGROBIO POLICY
 IMISAP
 SEED ACT
 SEED POLICY
 SEED VISION
 BIOTECH POLICY
 Draft
– ABS
– ACU
 WIPO
 CBD
– NAGOYA PROTOCOL
 ITPGRFA
– SMTA
 UPOV
 TRIPS
 Papers
– good practices
– basmati paper
– GI good practice
– GI sharingshop
– cuapgr GI

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https://milletadvisor.com/millets-types-of-millets/ International Year of Millets (IYM) 2023
In Nepal, 21
millet species
but uses?

63/63
क
ु नै वजज्ञासा ?
धन्यबाद !
सबैमा
शुभकामाना !!
Dr Sabina Koirala
क
ृ गष सूचना तथा
प्रगशक्षण क
े न्द्र
Agrobiodiversity is the basis of
our life, and basis for advancing
agricultural sciences
Go for local, work on local,
respect local, globalize local and
get IPR on Local

agrobiodiversity and intellectural property rights

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