Context: The cuetlaxochitl, meaning “flower that grows in residues” in the Aztec language, became the Christmas Eve flower of modern times as well as a top-selling potted plant is a story replete with patents, a market monopoly and a leaked trade secret that finally undermined one American family’s control of the business in the 1990s after a nearly 100-year run.
The Story – A case of Biopiracy?
The poinsettia is a case study of what breeding skills combined with business acumen can achieve in a setting of intellectual property rights (IPRS). Where the people and the region that nurtured the plant for centuries and inspired its link with Christmas did not share the benefits of its commercialisation?
Cuetlaxochitl growers could not compete with the likes of the Ecke Ranch firm (the Ecke family’s horticulture genetics company), and were unable to export to a lucrative market. Instead, they became growers for the American company.
In 1828 when Poinsett brought the shrub to the US and distributed it to his friends, there was no Convention on Biological Diversity (CBD). In any case, the US is still the only major country that is not a party to CBD.
It traces its origins to the Rio summit of 1992
It is a multilateral treaty ratified by 196 countries for “the conservation of biological diversity, the sustainable use of its components, and the fair and equitable sharing of the benefits arising from the utilization of genetic resources.”
Its overarching goal is to encourage actions that will lead to a more sustainable future.
It includes – Cartagena Protocol and Nagoya Protocol
On the other hand, the big boost to the US poinsettia industry came from the Plant Patent Act of 1930.
Apart from patent systems in individual countries, there have been systematic initiatives at the behest of plant breeders to create strong protection for their varieties — at the cost of farmers. The most significant of these is the International Union for the Protection of New Varieties of Plants or UPOV, a treaty created outside the UN to provide a regulatory system for protecting plants.
An intergovernmental organization with headquarters in Geneva (Switzerland).
UPOV was established by the International Convention for the Protection of New Varieties of Plants.
The Convention was adopted in Paris in 1961 and it was revised in 1972, 1978 and 1991.
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.
In the case of a variety protected by a breeder’s right, the authorization of the breeder is required to propagate the variety for commercial purposes. The breeder’s right is granted by the individual UPOV members.
Only the breeder of a new plant variety can protect that new plant variety. It is not permitted for someone other than the breeder to obtain protection of a variety.
There are no restrictions on who can be considered to be a breeder under the UPOV system: a breeder might be an individual, a farmer, a researcher, a public institute, a private company etc.
India is not a member.
Since it denies farmers any rights, such as the freedom to reuse farm-saved seeds and to exchange them with their neighbours, which is a tradition in this country of poor farmers.
With the World Trade Organization’s all-encompassing IPR agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) coming into force, India had the choice of either joining UPOV or to formulate a sui generis system that granted protection to breeders’ rights while keeping farmers’ interests uppermost.
The result was the Protection of Plant Varieties and Farmers Rights Act of 2001 (PPV&FRA), which balances the interests of both while encouraging innovation in new varieties. The legislation recognizes the contributions of both commercial plant breeders and farmers in plant breeding activity and also provides to implement TRIPs in a way that supports the specific socio-economic interests of all the stakeholders including private, public sectors and research institutions, as well as resource-constrained farmers.
India has faced pressure constantly to join UPOV. The standoff with PepsiCo, which attempted to enforce its IPR on two of its registered potato varieties that are used to make its branded wafers, has not helped India’s case that it was compliant with global norms on protecting breeders’ rights.
In 2018, multinational PepsiCo began intimidating potato growers in Gujarat for violating its IPR, claiming that the farmers were using its variety illegally.
Following massive protests by farmers and a strong campaign by farming activists, the authority overseeing the implementation of PPV&FRA was last year forced to revoke PepsiCo’s registrations, which had another six years to go.
This has opened India to further pressure, the latest from the EU, which is negotiating an ambitious Free Trade Agreement (FTA) with India and is demanding that India join UPOV.
