The ITPGRFA, which was adopted at the FAO conference on November 3, 2001, entered into force on June 29, 2004, creating a Multilateral System for facilitated access and benefit-sharing with respect to selected PGRs for food and agricultural purposes, while simultaneously recognizing the sovereign rights of each country over its own PGRs.
A number of potential ambiguities lurking in the language of the ITPGRFA could undermine its actual operation.
Neither the ITPGRFA nor the SMTA provide a clear answer to this question.
Developing countries argue that the two phrases would bar any patents on isolated genetic parts or components derived from the Multilateral System, while developed countries adhere to their interpretive statement on the official record that nothing in the ITPGRFA conflicts with national and international intellectual property rights regimes.
2(d)(ii) of the ITPGRFA, recipients of genetic material accessed from the System are obliged to share financial benefits arising from the commercialization of such genetic material if the commercialized product is covered by intellectual property rights restricting the free access for further research and breeding.
As the controversy over the phrase "in the form received" reveals, however, neither the ITPGRFA nor the SMTA make clear who will be obliged to share benefits arising from commercial uses.
of the ITPGRFA merely requires a recipient who commercializes a product that incorporates a plant genetic material accessed from the Multilateral System to pay an equitable share of the benefits arising from the commercialization of that product into the FAO trust account, unless "such a product is available without restriction to others for further research and breeding, in which case the recipient who commercializes shall be encouraged to make such payment.
To summarize, the Multilateral System under the ITPGRFA adopts a hybrid open source and propriety approach to plant innovation, seeking to maintain the openness of genetic materials held under its System for the conservation and sustainable use of PGRs for food and agriculture, while obliging a recipient who commercializes a patented product that incorporates plant genetic material accessed from the System to pay an equitable share of the benefits arising from the commercialization of that product into the FAO trust.
243) Neither the ITPGRFA nor the SMTA clearly indicates whether this obligation would continue through successive varieties, even if the actual proportion of the original germplasm constituting the new varieties produced inevitably decreases.
It should also be noted that, although the System covers most crops that are vital to world food security, (245) benefit-sharing under the Multilateral System does not yet cover many crops, including both ex situ private collections of crops listed in the ITPGRFA and such non-listed crops as soybeans, groundnuts, sugar cane, wild relatives of cassava, tomatoes, and industrial crops including tea, coffee, oil-palm and rubber.
Consequently, although the Multilateral System under the ITPGRFA is a commendable effort to avoid the high transaction costs associated with market-based bilateral contracts, (252) it is unclear whether it will in fact succeed in combining open source and proprietary approaches to plant innovation.
Nevertheless, the ITPGRFA is a commendable, if imperfect, attempt to moderate a potentially corrosive international phenomenon that one commentator has called "hyperownership in a time of biotechnological promise.