The Trans-Pacific Partnership: A Trojan horse for corporate control of agriculture

A lot of damage can be done with just a few words. In no other context is this as true as the case of so-called free trade agreements. I believe these should be renamed “Free [to exploit] trade treaties”. The case against free trade treaties can be made through a quick critical analysis of the patenting regime outlined in the proposed Trans-Pacific Partnership (TPP) treaty, which I view as a Trojan horse of neoliberal designs for corporate capitalist control of food and agriculture.

The November 2013 documents related to the secretive TPP dumped by Wikileaks have been by now thoroughly analyzed. [1. Some recent critical analysis of the TPP include the work done by Public Citizen at its website, https://www.citizen.org/TPP.] One of the principal concerns to emerge has to do with the extension of the enclosure of our biological and cultural commons through a patenting regime that, following the dictates of US law, turns everything into a patentable commodity including plant and animal biological materials and processes.

The case against free trade treaties can be made through a quick critical analysis of the patenting regime outlined in the proposed Trans-Pacific Partnership, which I view as a Trojan horse for corporate control of food and agriculture.

This is a cause for great concern and as a farmer, seed saver, and plant breeder I find a lot to object to in the rules outlined in Section E: Patents/Undisclosed Test or Other Data/Traditional Knowledge (pp. 28ff). United States negotiators and their corporate overseers are trying to extend the U.S. patenting and intellectual property rights regime through this “investor-state” treaty. There are several troubling items in §E involving language proposed by the USA. For example, under “Article QQ.E.1 {Patents\Patentable Subject matter}”, the USA proposes, in paragraph 1 that:

…each Party shall make patents available for any invention, whether a product or process, in all fields of technology, provided that the invention is new, involves an inventive step, and is capable of industrial application. The Parties confirm that: (a) patents shall be available for any new uses or methods of using a known product….

Under paragraph 3, the USA–opposed by several other countries including New Zealand, Malaysia, Australia, and Mexico–further proposes that:

Each Party shall make patents available for inventions for the following (a) plants and animals; b) diagnostic, therapeutic, and surgical methods for the treatment of humans or animals…and (c) essentially biological processes for the production of plants or animals, other than non-biological and microbiological processes for such production. (p. 28)

A note at the bottom of this page notes that “For purposes of this [Section] Article, a Party may deem the terms “inventive step” and “capable of industrial application” to be synonymous with the terms “non-obvious” and “useful.” This establishes language taken right out of U.S. patent law and creates the slippery slope toward the patenting of life.

One group of countries has expressed opposition to the generalization of the standards imposed by US patent and intellectual property law. Specifically, New Zealand, Canada, Singapore, Chile, and Malaysia propose an alternative that states.

Each Party may also exclude from patentability.

(a) diagnostic, therapeutic and surgical methods for the treatment of humans or animals; and plants and animals other than microorganisms, and essentially biological processes for the production of plants or animals other than non-biological and microbiological processes. However, Parties shall provide for the protection of plant varieties either by patents or by an effective sui generis system or by any combination thereof.

At the heart of the widening social movements against the TPP is the idea that large corporations should not control something as basic as our food. In the 1970s, Secretary of State Henry Kissinger once said: “Control oil and you control nations.” Today, the same maxim can be modified to read: “Control food and you control the people.” The struggle for food sovereignty and indigenous autonomy lies at the heart of the widening opposition to the TPP.

An easily overlooked aspect of the TPP has to do with the burden of proof for dispute resolution procedures. One recent legal analysis concludes that the TPP provisions on TRIPs (trade-related intellectual property laws) would shift the burden for bringing enforcement actions from private right holders to the public (Flynn et al 2012: 196). This further seals the idea that the TPP, continuing the tradition initiated under NAFTA, is establishing yet another domain for the exercise of the sovereignty of corporations as parties of regulation unto themselves.

Devon G. Peña, PhD is Founder and President of The Acequia Institute and a newly elected member of the Board of Directors of the Institute for Food and Development Policy/Food First. He is a professor of anthropology, ethnic studies, and environmental studies at the University of Washington.

Devon G. Peña, PhD is Founder and President of The Acequia Institute and a newly elected member of the Board of Directors of the Institute for Food and Development Policy/Food First. He is a professor of anthropology, ethnic studies, and environmental studies at the University of Washington.

References:

Flynn, S. M. B. Baker, M. Kaminski, and J. Koo. 2012. The U.S. proposal for an intellectual property chapter in the Trans-Pacific Partnership agreement. American University International Law Review 28:1:105-202.