Plant breeder incentives; are Plant Patents a help or a hindrance?

A recent item I put together for the Agricultural Biodiversity Weblog (thanks for the link Jeremy) has added to the arguments questioning the value of property rights over plants.  “Challenging Plant Patents: the Rose”

The original paper being discussed in the blog post linked above asked the question “Did Plant Patents Create the American Rose?[1]”, and they concluded that:

“Using plant patents as the sole indicator of innovation suggests that the answer is yes…A closer look, however, suggests patents played at best a secondary role, and that U.S. breeders mostly used patents strategically to protect themselves from litigation.”

The blog item (perhaps somewhat unfairly) draws the conclusion from the paper that:

“…there’s evidence that the Plant Patent Act may have served to suppress horticultural innovation rather than stimulate it”

Why is this debate of interest to us?  The research is about roses, but the Intellectual Property Rights discussion could apply equally to other plants/crops.  In our area this debate becomes even more heated when publicly funded research, and/or development issues are added into the mix.

It’s always useful that we a) take note and learn from these discussions, and b) that we remember the balance needs to be struck between protecting individual rights, and effects on the wider community.  The patent system was always supposed to tread this line.  There is more than one type of IPR available to plant breeders.  In the USA a Plant Patent is just one of three forms of formal protection available for plants from the USPTO, along with PVP and the Utility Patent.

Protection is certainly not a one way street.  Plant Patent Rights are time limited and the patented plant variety enters the public domain (with no rights attached) once the patent expires.  In addition US Plant Patents allow the protected materials to be used for breeding without the need for permission (or a license) from the patent holder, much like the breeder’s exemption for PVP rights. (See,http://www.ll.georgetown.edu/federal/judicial/fed/opinions/94opinions/94-1450.pdf)%25c2%25a0;.  This is NOT true for utility patent rights over plant varieties.

I would like to question the blog item in its comparison to Europe.  It was noted that: “European breeders, without the benefit of patents, continued to lead rose innovation”  But what about UPOV? This isn’t mentioned… 

The tools are just one piece of the overall innovation puzzle, and the innovation puzzle is a complicated one!  By raising the awareness of the uses and characteristics of the tools we can help ensure that public sector research navigates this area better.  This could mean taking steps to ensure research falls into the public domain, or by using the protections to make outputs available on specific, strategic, development-orientated terms.

The blog post included a great archive photo of the Golden Delicious apple tree (1931) caged to “prevent competitors stealing shoots.”  It’s certainly one alternative to formal protection!

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[1]Moser, Petra and Rhode, Paul W., Did Plant Patents Create the American Rose? (January 4, 2011). Available at SSRN: http://ssrn.com/abstract=1735015

 

“Patents and Vegetable Crop Diversity”

There was a Patently-O post that came out during the New Year holiday period (thanks VHA for sending the link to me).  The title of the post was “Patents and Vegetable Crop Diversity” and included a paper of the same name published in November 2009.  The authors (Paul Heald & Susannah Chapman) open the paper saying:

“the data presented … strongly suggest that the intellectual property system (including the Plant Patent Act, the Plant Variety Protection Act, and utility patents…) plays an insignificant role in vegetable crop diversity, with the possible exception of corn”

Patently-O highlighted the following findings of the study:

“Only 3.8% of varieties available in 2004 were ever subject to protection under patent law or the Plant Variety Protection Act (PVPA);

More than 16% of all vegetable varieties that have ever been patented were commercially available in 2004; and

In 2004, approximately 4.5% of protected, or once protected, varieties consisted of inventions that were at least twenty years old.”

Visit this link to read or download the paper.  Also included in the post was a link to a previous paper from the same authors suggesting “vegetable crop diversity increased in the past century”.   I wanted to highlight the summary from that paper which can be read or downloaded HERE:

“The primary argument for maintaining crop diversity is based on the need to maintain a safety net of genetic diversity, to have a broad supply of genes available to breeders who can create more productive, weather-hardy, insect resistant, fungus resistant, and better-tasting crops. We hope our findings stimulate a discussion about the proper measure for that diversity. If the meaning of diversity is linked to the survival of ancient varieties, then the lessons of the twentieth century are grim. If it refers instead to the multiplicity of present choices available to breeders, then the story is more hopeful. Perhaps the most accurate measure of diversity would be found in a comparative DNA analysis of equal random samples of old and new varieties, work that remains to be done.“

(On a lighter note; I couldn’t help smiling reading the comments on the blog post.  Most of them were left 1^st January, and it seems those commenting might have had just one too many during the festive period…  However for the record I soberly agree with them that Patently-O is a great blog!)

“Modern seeds”, traditional varieties and Plant Variety Protection (PVP)

http://allafrica.com/stories/200909100188.html
Interesting article from Allafrica.com.  It deals with a thorny collection of the issues surrounding seed, increasing use of UPOV protection by seed developers, the rights of farmers, genetic diversity and the livelihoods of poor farmers.

The AllAfrica write up also references a news release that was on the International Institute for Environment & Development (IIED) website.  This article also includes several references to the loss of benefit to small-scale farmers from new variety development.  The IIED say in their post:

“Small-scale farmers rarely benefit when outsiders such as corporate plant breeders make use of their traditional seeds to develop new varieties, because the plant breeders acquire the intellectual property rights when they test and register the new varieties.”

It is worth pointing out that IPRs over a new variety don’t affect the rights of the traditional variety used in the breeding.  The public sector should be aware of the workings of the formal IP sector to be able protect its public goods effectively.  Being proactive about cataloguing and listing known varieties in common knowledge databases will avoid confusion about what is new and what is not!  This is critical information to a PVP examiner processing an application for a “new” variety.   The PVP system could also help ensure existing knowledge remains free from restriction, but of course only if that “existing knowledge” is specified and accessible to examiners.

Seems we weren’t the only ones to raise an eyebrow at the IIED article.  See the post (and subsequent debate) on the Agricultural Biodiversity Weblog from earlier this month.  It picks up on the subject of genetic use restriction technologies (GURTs).  It’s a good read!

Thanks to Kalpana Sastry, Principal Scientist at NAARM for sending the AllAfrica link.

Blogging from the World Seed Conference

http://www.worldseedconference.org
This week the CAS-IP team have been attending the World Seed Conference taking place at the FAO in Rome.  The audience is from a wide range of backgrounds, public and private sector, seed companies and farmer group representatives, breeders and policy makers.

Presentations from the programme are available on the conference web site.

As expected Intellectual Property (patents and PVP) were mentioned several times during the day.  One context of interest was the relationship of increased yields, plant breeding that leads to utilization of genetics and the introduction of IPRs over varieties –all three of these initiated in the 1960s.  A graph that appeared again and again throughout the day tied these factors together into a compelling display showing a sharp curve for yield increases in various crops in various regions (both developed and developing countries).

During the summing up Mr Orlando de Ponti, President of the International Seed Federation (ISF) noted the concurrence of increased yields and IP protection.  Perhaps the situation has become more complicated in recent years, with biotechnology crops, especially those that include protected inputs – However it is a reminder to keep an open mind about formal intellectual property protection in the context of development.

Legal protection for red rice to protect rights of traditional farmers in India

http://www.twocircles.net/2009jul30/vanishing_red_rice_get_legal_protection.html
This item sent to me today from Kalpana Sastry, Principal Scientist at NAARM.  It is an article that provides an example from India of efforts to protect a vanishing traditional rice variety using legal protection.  The effort is lead by CSK HP Krishi Vishvavidyalaya, an agricultural university.

Its hoped that local farmers contribution to conservation and improvement of the genetic resources will be rewarded.  The legislation that will be utilised is the Protection of Plant Varieties and Farmers’ Rights Act 2001, see a write up about the Act on the farmersrights blog.  There are also plans to register the variety with a GI in order to promote market development.  A good example of the positive uses of Intellectual Property protection that are compatible with public goods ethos.

IP case studies from four agricultural research institutions in developing countries

http://www.cas-ip.org/public/uploads/2009/04/compilation_of_4_working_papers_npi_2008.pdf

The National Partners Initiative (NPI) of CAS-IP has published this week a compilation of 4 working papers entitled: “Institutionalization of Intellectual Property Management: Case Studies from four Agricultural Research Institutions in Developing Countries”.  The full text can be viewed by clicking on the lead link above. These case studies aim to share country experiences from developing countries in the areas surrounding IP policy making, policy implementation and use of IPRs by researchers for leveraging more benefits to the stakeholders, people, institutions and countries. The results of the case studies have been prepared as four working papers. The working papers are on the following topics:

Intellectual Property Management Regime in the Indian National Agricultural Research Systems
(R. Kalpana Sastry, India)

This case study presents an overview of the changing environment for public research organizations in the Indian Agricultural Research System with respect to intellectual property management. In its commitment to cater to its broader societal objectives, the system has been challenged with growing sovereignty and restrictions on the sharing of germplasm, privatization of knowledge, and pressures to reduce demands on public finances through the commercialization of research products. Starting with a review of the relevant legal and policy documents to understand the background of the obligations at national and at the international level, followed by a brief review of the role and functions played by some statutory agencies in India, the implications for the National Agricultural Research System were studied. Against the realization of need for IP policy for the large system, the provisions and governance model of the new IP policy of the national agricultural organization like the Indian Council of Agricultural Research (ICAR) was analyzed. Then the implementation of guidelines now in place for two constituent institutes Project Directorate of Poultry (PDP) and Directorate of Rice Research (DRR), animal- based and crop-based institutes respectively, were studied in detail from the IP policy perspective. The study highlights on the implementation of guidelines, structural adjustments in decision making activities in IP management at institutes and at understanding the specific issues of IP management relevant to the research mandate of these institutes.

Establishment of Plant Breeders’ Rights System in Tanzania: Achievements and Challenges
(Patrick Ngwediagi, Tanzania)

The study is on establishment of plant breeders’ rights system in Tanzania: achievements and challenges seeks to review appropriateness of the current plant breeders’ rights system in Tanzania and its contribution to an effective sui generis system, and attempts to formulate an appropriate model in line with the TRIPS Agreement. The results indicate a need for a benchmark review of process of activities to be useful towards the creation and operationalization of a sui generis system. The involvement of the stakeholders in this exercise in Tanzania proved to be very useful exercise and should be continued as many other developing countries develop models to suit the needs in their niche areas. The findings suggest a strong need of such actions to enable policy makers take prudent decisions while complying with the TRIPs agreement. Issues of benefit sharing and access to biological resources especially in PVP context need to evolve if the IP protection systems are to bring the needed changes for the stakeholders.

A Review of the Nigerian System of Intellectual Property
(Victor M. Ibigbami and Christopher U. Orji, Nigeria)

Nigeria is taking steps to comply with the new IP regime ushered in by the WTO TRIPS and supported by African Union (AU). The issues such as Plant Variety Protection (PVP) and patent for microorganisms are technological in nature and the country should exercise the sui generis option provided in the TRIPS agreement to develop suitable laws. It is necessary that such laws may have instruments to be able to be used beyond the country’s existing IP framework like through the aegis of AU Model Law. This study also points to the need to amend the National Crop Varieties and Livestock Breeds Registration and Release Committee Decree 33 of 1987 in Nigeria to provide space for Plant Variety Protection (PVP), Animal Breeders Rights, and Farmers’ Rights. The Committee is currently administered by the National Centre for Genetic Resources and Biotechnology (NACGRAB) in the Ministry of Science and Technology and institutional mechanism should be put in place. Analysis of two grants relating to biotechnological related inventions and consequent efforts for licensing the technology indicate the need for regulation of such inventions in terms of best practices methods. Providing strong legal mechanisms for biotechnological inventions through National Biotechnology Law may lead to institutionalizing the norms for biosafety through institutions like National Biotechnology Development Agency (NABDA). This will help regulate research on microorganisms in terms of IP creation, benefit sharing and on biopharmaceuticals and nutraceuticals which the patent law presently does not address. It is envisaged that such measures would lead to increased investment in technology development and the resulting products can better the lives of the people of Nigeria.

Establishing a Technology Transfer Office in an Academic Institution in a Developing Country: Experience of Moi University
(Antony S. Mbayaki, Kenya)

The study relates to the experience of Moi University (in Eldoret Kenya) on the establishment of the first technology transfer office in a university or public research institution in Kenya. This study indicates the efforts of the policy makers leading to the establishment of the office at the institutional level. Nuances in the process of establishment, the challenges that faced and continue to open up, the manner of countering and overcoming have been discussed. The success and the roadblocks during the process serve as vital lessons for several other organizations that are now in the process of establishing Technology Transfer Office (TTO) in academic institutions especially in Africa. The study indicates that the benefits accrued through such offices placed in institutions of higher learning are enormous. If technology transfer has to be disseminated to reach to end users in a climate of ‘win-win’ situation, it is necessary to institutionalize the technology transfer in all institutes. Since the provisions in law have to be actualized and enforced, TTOs will have a major role in overseeing that potential and actual through sound IP management reach all stakeholders.

Post written by Karine Malgrand     consultant to CAS-IP