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Berkeley ENVECON 143 - Intellectual Property Rights for Plant Biotechnology: International Aspects

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inHandbook of Plant BiotechnologyEditors-in-ChiefPaul Christou and Harry KleecJohn Wiley & Sons, Ltd., Chichester, 2004Intellectual Property Rights for PlantBiotechnology: International Aspects Sara Boettiger, Gregory D. Graff, Philip G. Pardey, Eric Van Dusen and Brian D. Wright56Intellectual Property Rights for PlantBiotechnology: International AspectsSara Boettiger,1Gregory D. Graff,1Philip G. Pardey,2Eric Van Dusen1and Brian D. Wright21Department of Agricultural and Resource Economics and Policy,University of California, Berkeley, CA, USA2Department of Applied Economics, University of Minnesota, St. Paul, MN, USAThe ‘protection against imitators’ is necessary because ‘he who has no hope he shall reap will not takethe trouble to sow.’Jeremy Bentham (1843, quoted by Machlup 1958 p. 19)It might be ‘fair and economically advantageous for a nation to compensate the inventor’ for effortsand expense, but it was ‘very questionable whether monopolization of his invention is the right kind ofcompensation.’Johan Friedrich Lotz (1822, quoted by Machlup 1958 p. 20)INTRODUCTIONResearch and development in the agriculturalsector is unique among industries in at least tworespects: the truly global reach of a majority ofagricultural R&D and the historical success ofwhat has been largely a public enterprise. In rela-tion to other industries, research and innovation inagriculture are far more geographically dispersed.Private sector firms make up roughly one-thirdof global agricultural R&D expenditures, whilepublic research institutions make up the other two-thirds, evenly split between developed and lessdeveloped countries (Pardey and Beintema, 2001).Intellectual property rights (IPR) are importantinternationally, in public, nonprofit and privateinstitutions, both as incentives for innovation andas constraints on freedom to operate in agriculturalR&D.This is a recent phenomenon. Private intellectualproperty rights have historically been of littlerelevance in agricultural research. For more than acentury, mechanical inventions, produced mainlyby farmers and mechanics, could be protected inmany countries via utility patents. But the financialrewardswere only modest, at best. Inventionstended to be easy to copy, and licensing contractsdifficult to enforce.1Biological innovations suchas novel crop varieties were not patentable andhad no protection from duplication or breeding bypurchasers of seeds or other germplasm. Financingexpensive work in innovation by licensing or saleHandbook of Plant Biotechnology. Edited by Paul Christou and Harry Klee.C2004 John Wiley & Sons Ltd. ISBN 0-471-85199-X.1090 HANDBOOK OF PLANT BIOTECHNOLOGYof resulting germplasm was infeasible since theresults were freely available to competitors as freeriders. Achieving the scale and power necessaryfor the private integration and monopolisation ofthe whole production chain, including commercialfarming, was impractical. So advancements in cropbreeding were dominated by the public sector.Although personal or corporate intellectualproperty rights for plant biotechnology are recentphenomena within most countries, attempts atasserting national property rights over breed-ing materials internationally are nothing new.Monopolisation of valuable markets has longbeen accomplished by nation-states prohibitingaccess to breeding materials. Examples include theDutch monopolisation of the European tea supply,(Juma, 1989), the Italian prohibition on rice seedexport famously violated by Thomas Jefferson(Fowler, 1994; Root and de Rochemont, 1976), andmore recently Ethiopia’s ban on export of somecoffee tree varieties (Fowler and Mooney, 1990).These cases are, however, atypical; in general,traders, collectors and breeders have had freeaccess to land races and farmers’ varieties fromaround the world.Characterisation of genetic resources as the‘common heritage of humankind’ appears tooriginate only in the 1970s, when the term wasborrowed from earlier applications to air, sea andother open-access natural resources. The global-isation of trade, migration and communicationwitnessed in the last few centuries had alreadymade national monopolisation of genetic resourcesan anachronism. Innovations such as the Wardiancase (the precursor of today’s terrarium) had fa-cilitated the transportation of live plants over vastdistances. As modern varieties spread throughoutthe world, a large set of farmer-bred varieties orland races was replaced by a much smaller set ofmodern varieties in farmers’ fields.The Southern corn leaf blight infestation of1970 revealed the genetic vulnerability of the largeportion of the US corn crops that relied on cyto-plasm male sterility for its production. A US study(National Research Council) was organised to as-sess the genetic diversity of major crops, and foundthem excessively genetically uniform and vulner-able. In response, the United States and othernational governments and non-profit foundationshave supported unprecedented efforts, followingthe pioneering efforts of Nicolai Vavilov in the earlytwentieth century, in the ex situ conservation ofgermplasm in botanical gardens and seed banks.They have also made these collections broadlyavailable. The cost of exchange is now so lowthat thousands of sets of plant varieties can bedistributed and tested simultaneously in manycountries and environments. Seed banks can safelypreserve thousands of key cultivars by depositing‘back-ups’ at other locations. And breeders canaccess countless cultivars from major seed banksat the cost of dissemination (Koo et al., 2002).The globalisation of germplasm exchange beganin the last century (Juma, 1989), and wasconsolidated as systems for large-scale exchange(Evenson, 2000). But rights of access to germplasmhave become progressively restricted. Early 20thcentury progress in plant breeding and geneticsled to the development of hybridisation, whichincreased yields while providing an importantphysical means of restricting the reproduction ofplant genetic resources. Subsequently, in countriesaround the world the expansion of ‘intellectualproperty rights’ (IPR) has created several othermeans of restricting the reproduction and tradingof plant genetic resources.MEANS OF DEFINING AND PROTECTINGINTELLECTUAL PROPERTY RIGHTS INPLANT BIOTECHNOLOGYHybridisationPrior to the 1980s, even if legal protection hadbeen given to seed producers against unauthoriseduse of new varieties, enforcement would havebeen

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