Tips for Negotiating Public-Private Collaborations

My attention was drawn to this piece of news recently through the FS-Ag Biotech news portal. CIMMYT has entered into a partnership with Syngenta “to focus on the development and advancement of technology in wheat, the most internationally traded food crop and the single largest food import in developing countries. The agreement will entail joint research and development in the areas of native and GM traits, hybrid wheat and the combination of seeds and crop protection to accelerate plant yield performance.”

I sent the news to Carolina Roa, the IP manager of CIMMYT, and asked if she has tips to share with the IP community in putting together this collaboration. She had the following to say:

“To me there are a couple of key aspects…
1) having clear the centre’s expectations, needs and justifications before entering the collaboration;
2) knowing what it can contribute to the collaboration in terms of assets and looking for complementing and enhancing those assets with the ones of the collaborator;
3) having clear what it wants to deliver, to whom and how (the strategies to do it); and
4) put all these things clearly at the table when the dialogue/discussion with the possible collaborator starts.

Any potential collaborator…will appreciate that, as it facilitates, clarifies and speeds up the process. Something that we’ve found particularly helpful is to articulate these things in a key terms document that will be the basis for the discussion with the potential collaborator…Getting agreement on the key terms document takes away some of the pressure of discussing and entering into a full agreement upfront. The potential parties are more relaxed about discussing, commenting on such a document than on an already made collaboration agreement.”

I think the tips by Carolina are very useful and right on point. We speak of public-private collaborations all the time and how we need to encourage more partnerships in this direction for the benefit of small-scale developing country farmers and creating more public goods. I am sure that many out there who are reading our blog have interesting negotiation experiences to share and I encourage you to use the comment boxes below to let us know your set of tips when negotiating collaborations.

Post written by Guat Hong Teh, Legal Specialist for CAS-IP

the G8 summit statement on food security

http://www.cgiar.org/pdf/G8%20statement%20on%20food%20security%20july%202009.pdf
During the G8 meeting last week in Italy a joint statement was released on global food security endorsed by the G8, the other attending countries, donors and international organisations.  The statement can be downloaded from the CGIAR website (see lead link).

The statement renews commitment to conclude the Doha Development Round successfully — this stalled some time back (see CAS-IP blog posting on the collapse).

In the G8 document there were 12 points in all, at least 5 of those could be of particular relevance to a community concerned with intellectual property management and/or agricultural development in general.  Those 5 points I have cut and pasted below in their entirety (emphasis on partnerships, PPPs, regional efforts as well as general donor/funding themes).  There is no comment from our team as yet.  Of course it’s hard for anyone to predict how this will translate into action on the ground.  For now here are the points that seemed most pertinent FYI:

“…
5. Sustained and predictable funding and increased targeted investments are urgently required
to enhance world food production capacity. Commitments to increase ODA must be fulfilled.
The tendency of decreasing ODA and national financing to agriculture must be reversed. We
are committed to increase investments in short, medium and long term agriculture development
that directly benefits the poorest and makes best use of international institutions. We support
public-private partnerships with adequate emphasis on the development of infrastructure aimed
at increasing resources for agriculture and improving investment effectiveness.
…
8. Strengthening global and local governance for food security is key to defeating hunger and
malnutrition, as well as to promote rural development. Improved global governance should build
on existing International Organizations and International Financial Institutions, making use of
their comparative advantage, enhancing their coordination and effectiveness and avoiding
duplications. To this end, we support the UN High Level Task Force on the Global Food
Security Crisis. At the same time, we support the fundamental reform processes underway in
the FAO, the Committee on World Food Security, the Consultative Group on International
Agricultural Research and the global agricultural research system through the Global Forum on
Agricultural Research.

9. By joining efforts with partners and relevant stakeholders around the world, we can together
design and implement an effective food security strategy, with priority on the world’s poorest
regions. We agree to support a global effort whose core principles are country ownership and
effectiveness. We pledge to advance by the end of 2009 – consistent with our other actions
aimed at an improved global governance for food security – the implementation of the Global
Partnership for Agriculture and Food Security.

10. We support the implementation of country and regional agricultural strategies and plans
through country-led coordination processes, consistent with the Accra Agenda for Action and
leveraging on the Comprehensive Framework for Action of the UN High Level Task Force and
on existing donor coordination mechanisms. Building on the experience of FAO, IFAD and other
Agencies, special focus must be devoted to smallholder and women farmers and their access to
land, financial services, including microfinance and markets. Sustained efforts and investments
are necessary for enhancing agricultural productivity and for livestock and fisheries
development.

Priority actions should include improving access to better seeds and fertilizers, promoting
sustainable management of water, forests and natural resources, strengthening capacities to
provide extension services and risk management instruments, and enhancing the efficiency of
food value chains. In this regard, the increased involvement of civil society and private sector is
a key factor of success. Investment in and access to education, research, science and
technologies should be substantially strengthened at national, regional and international level.
Their dissemination, as well as the sharing of information and best practices including through
North-South, South-South and Triangular cooperation, is essential to promote knowledge-based
policy and national capacity. We recognize the opportunities and challenges associated with
renewable energy production from biomasses. Related investment should be promoted in a
sustainable way compatible with our food security goals.

11. In Africa, NEPAD’s Comprehensive Africa Agriculture Development Program (CAADP) is an
effective vehicle for ensuring that resources are targeted to a country’s plans and priorities.
Local ownership must begin with the national political will to develop and implement
comprehensive food security strategies, based on sound scientific evidence, inclusive
consultation, domestic investment and clear directions. We also acknowledge the positive
contribution of African-led public-private partnership such as the b We commit to provide
resources – whether financial, in-kind or technical assistance – in support of CAADP and other
similar regional and national plans in Africa, Latin America and the Caribbean, and Asia.”

Pity the lawyers?? Crop scientists say biotechnology seed companies are thwarting research

http://www.nytimes.com/2009/02/20/business/20crop.html?em

This article published last week by the New York Times (see lead link) and reprinted in the International Herald Tribune  describes the frustration of a group of entomologists doing research at land grant universities in the U.S. regarding the contract conditions attached to the use of materials obtained from several major seed companies.  These scientists have sent a letter the U.S. Environmental Protection Agency (EPA) indicating that the have had difficulty in running the experiments needed to test hypotheses, regarding the optimal size(s) of refugia, because of the conditions proscribed by the owners of the materials when they were passed to the scientists for research studies.  Everyone agrees that this research needs to be done.  The scientists wonder, how this can be accomplished –given the contract language.  Now, how will the EPA be able to ask whether their current regulations are sensible?

What does this have to do with intellectual property?  Rights are awarded to patent holders; these rights can then be licensed to others.  Owners of intellectual property rights have great liberty in the conditions associated with licensing the use of materials under patent protection.  In corporations, the text of these licenses is usually under the control of legal departments.  This can bring problems when lawyers see their job as one of reducing risk to as close to zero as possible.  The situation described in this article perhaps provides an example of the difficulty lawyers have when trying to draft an agreement that provides sufficient room for a licensee to use the material in a productive way and yet also provides sufficient risk management for the licensor. 

Here is a very interesting discussion by a patent attorney regarding this situation: http://www.patentdocs.org/2009/02/new-york-times-gets-one-right.html

Additional comments regarding U.S. regulatory agencies involved in approvals of GMOs from:
http://patentbaristas.com/archives/2009/02/20/scientists-say-seed-technology-agreements-stop-research/

The above blog post was written by Victoria Henson-Apollonio

A draft of this post was circulated internally last week and Guat Hong Teh, a lawyer on the CAS-IP team had the following comment to make.

“In my view, putting the right language into licences that would enable both the licensor and licensee to achieve their goals (common or not) is a joint effort. Whilst it is reasonable to have some standardisation of legal language in these documents, both lawyer and scientist need to understand that a case-by-case approach is necessary when new situations emerge. A good piece of legal document requires extensive communication between all parties involved. However, there is sometimes a communication breakdown between the scientist and the lawyer because of the seemingly different roles they play or the goals they would like to see achieved. Although the duty of the lawyer is to ensure that his/her client is afforded the widest protection allowed under the law, this has to take into consideration other needs of the client. I see this to be an increasing challenge for what we do because of the rise in collaborative research, especially public-private partnerships.”

IPRs; a barrier to technology transfer?

http://www.scidev.net/en/science-and-innovation-policy/features/q-a-clean-technologies-with-yvo-de-boer.html
This article was on SciDev.net today – it’s a Q&A session with Yvo de Boer, the executive secretary of the UN Framework Convention on Climate Change.  The article opens:

“de Boer says that getting technology transfer policies right must be one of four central planks of climate policy (See ‘UN climate chief calls for green technology revolution’).”

Whilst this article is specifically about Climate Change policy, parallels to our work in agricultural development could easily be made.  For example the answers put much emphasis on the increased need for partnerships which is something we are hearing a lot about in the CGIAR.   Of specific interest were the following two questions:

“How big a barrier to technology transfer are intellectual property rights?
Many developing countries mention it as a major barrier. If we can think about creating mechanisms [in Copenhagen] that make it possible to buy down the intellectual property rights of some new technologies … — it would be an important step forward.
… we need to design mechanisms that make joint research and development between rich and poor countries possible. Both China and India have become major producers [of renewable sources of energy] so it’s not a matter of all the technology being in the North and none of it being in the South: it’s more a matter of finding affordable ways for developing countries to get access to that technology
Are you disappointed with the rate of progress of the technology transfer negotiations?
… there’s a broad realisation that without an advance on technology cooperation, we are just not going to get a result and that is making everybody take this issue much more seriously and look for real ways of advancing it. “

I am a bit confused as to what exactly was meant by creation of mechanisms to “buy down the intellectual property rights”.  If anyone knows please let me know so I can update the post!