Benefiting from biotechnology: Pro-poor intellectual property rights and public-private partnerships

Biotechnology Law Report

Volumn 27, Issue 3, 2008, Pages 189-202

  Karapinar, Baris ^a   Temmerman, Michelangelo ^a  

^a UNIVERSITY OF BERN   (Switzerland)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 45149126934     PISSN: 0730031X     EISSN: None     Source Type: Journal    
DOI: 10.1089/blr.2008.9946     Document Type: Review

References (83)

1. Oksana Nagayets, Small farms: current status and key trends, in Information Brief Prepared for the Future of Small Farms Research Workshop, Wye College, June 26-29, 2005, at 356.
2. Peter B. R. Hazell and C. Ramasamy, eds. The Green Revolution Reconsidered: The Impact of High-Yielding Rice Varieties in South India. Baltimore, Johns Hopkins University Press (1991).
3. John Dixon, Aidan Fulliver, and David Gibbon, Farming System and Poverty: Improving Farmer's Livelihoods in a Changing World. Rome/Washington DC, FAO/World Bank (2001) at 310.
4. Garg AK, Kim J-K, Owens TO, Ranwala AP, Choi YD, Kochian LV, Wu RJ. Trehalose accumulation in rice plants confers high tolerance levels to different abiotic stresses. Proc Natl Acad Sci USA 2002;99:15898.
5. Ibid.
6. FAO Electronic Forum on Biotechnology in Food and Agriculture, What should be the role and focus of biotechnology in the agricultural research agendas of developing countries? In Background Document to the Conference 8, 13 Nov.-11 Dec. 2002 (2002); available at www.fao.org/biotech/C8doc.htm (last visited October 2007).
7. Melinda Smale, Svetlana Edmeades, and Hugo Degroote, Promising crop biotechnologies for smallholder farmers in East Africa: bananas and maize. Genetic Resource Policies Brief 19 (International Food Policy Research Institute, Washington, DC) (2006).
8. Nuffield Council on Bioethics, The use of genetically modified crops in developing countries: a follow-up. Discussion paper (2003). Available at www.nuffieldbioethics.org/fileLibrary/pdf/GM_Crops_Discussion_Paper_2004.pdf (last visited October 2007) at 21;
9. Bruce WB, Edmeades GO, Barker TC. Molecular and physiological approaches to maize improvement for drought tolerance. J Exp Botany 2002;53:13.
10. Julian M Alston, Horticultural biotechnology faces significant economic and market barriers, 58(2), California Agriculture, 80, at 80-88 (2004); available at http://repositories.cdlib.org/anrcs/californiaagriculture/ v58/n2/p80 (last visited October 2007), at 86.
11. David Clark, Harry Klee, and Abhaya Dandekar, Despite benefits, commercialization of transgenic horticultural crops lags. California Agriculture 2004;58:89; available at http://repositories.cdlib.org/anrcs/ californiaagriculture/v58/n2/p89 (last visited October 2007).
12. Supra note 10 at 90. Development of new technologies extending the shelf life of horticultural crops that have short post-harvest lives such as banana, mango, and papaya is important. Biotechnology has been used in several flower varieties, such as carnation, rose, and gerbera for the purpose of modifying a greater variety of flower colors (currently produced in South America for markets in North America) (supra note 10 at 93).
13. Supra note 10 at 89.
14. Moti Lal Madan, Animal biotechnology: applications and economic implications in developing countries, 24(1), Scientific and Technical Review, World Organization for Animal Health, 127, at 133 (2005).
15. Supra note 13 p. 130.
16. Alison L. Van Eenennaam, What is the future of animal biotechnology? California Agriculture 2006;60(3):132; available at http://repositories. cdlib.org/anrcs/californiaagriculture/v60/n3/p132 (last visited April 2007).
17. Supra note 13 p. 131.
18. Supra note 13 p. 133.
19. Nuffield Council on Bioethics, The use of genetically modified crops in developing countries: a follow-up Discussion paper (2003), at 37; available at www.nuffieldbioethics.org/fileLibrary/pdf/GM_Crops_Discussion_Paper_2004. pdf (last visited October 2007).
20. World Health Organization, DIARRHOEA (2007); available at www.who.int/water_sanitation_health/diseases/diarrhoea/en/ (last visited January 2007).
21. Supra note 13 p. 137.
22. Gordon C. Rausser, Leo Simon, and Holly Ameden, Public-private alliances in biotechnology: Can they narrow the knowledge gaps between rich and poor? 25, Food Policy, 499, at 512 (2000).
23. Michael Morris and Derek Byerlee, Maintaining productivity gains in post-Green revolution Asian agriculture, in International Agricultural Development (Carl K. Eicher, and John M. Staatz, eds. Baltimore, The John Hopkins University Press) (1998).
24. Ismail Serageldin, Changing agendas for agricultural research, in Agricultural Science Policy: Changing Global Agendas (Julian M Alston, Philip G. Pardey, and Michael J. Taylor, eds. Baltimore, Johns Hopkins University Press) (2001).
25. Julian M Alston and Philip G. Pardey, Developing-country perspectives on agricultural R&D: new pressures for self-reliance? In Agricultural R&D in the Developing World: Too Little, Too Late? (Philip G. Pardey, Julian M. Alston, and Roley R. Piggott, eds. Washington, D.C., International Food Policy Research Institute) (2006). (Alston and Pardey 2006).
26. Ibid.
27. Prabhu Pingali and Terri Raney, From the Green Revolution to the Gene Revolution: How will the Poor Fare? ESA Working Paper No. 05-09, FAO, at 6 (2005); available at www.fao.org/es/esa (last visited September 2007).
28. Derek Byerlee and Ken Fischer, Accessing modern science: policy and institutional options for agricultural biotechnology in developing countries, IP Strategy Today No. 1-(2001), p. 7.
29. Julian M. Alston, Philip G. Pardey, and Roley R. Piggott, Introduction and Overview. In Agricultural R&D in the Developing World: Too Little, Too Late? (Philip G. Pardey, Julian M. Alston, and Roley R. Piggott, eds. Washington, D.C., International Food Policy Research Institute) (2006).
30. There is an important exception for hybrid seeds that allows the private sector to protect its research and development investment through trade secrets. Because the first-generation hybrid seeds have substantial yield advantages over those harvested from subsequent generations, they must be purchased frequently (World Bank, World Development Report 2008: Agriculture for Development. Washington, D.C., The World Bank) (2007), at 166.
31. A recent study examining ownership of more than 14,000 international patents for agricultural plant biotechnologies granted between 1981 and 2001 in the United States, Europe and Japan and the International Patent Cooperation Treaty indicates that public research institutions (universities, government institutions, etc.) owned 24% of all such patents. This is higher (33%) in Patent Cooperation Treaty filing. On the other hand, the private sector, which is dominated by multinational life science corporations, owns 74% of agricultural biotechnology patents. For instance, 40% of agro-biotechnology patents in the US are owned by the top five corporations. Monsanto and DuPont own the biggest individual shares, with 14% and 13%, respectively (Graff GD, Cullen SE, Bradford KJ, Zilberman D, Bennett AB. The public-private structure of intellectual property ownership in agricultural biotechnology. Nat Biotechnol 2003;21:989).
32. Mark Spence, Which intellectual property rights are trade-related? In Environment, Human Rights and International Trade (Francesco Francioni (ed.), Oxford, Hart Publishing) (2001) at 270.
33. Agreement on Trade Related Aspect of Intellectual Property Protection, Annex IC to the Agreement Establishing the World Trade Organization, Marrakesh, 15 April 1994, 33 International Legal Material 1197 (1994).
34. For African countries, for instance, two regional intellectual property organizations and their conventions must be taken into account. On the one hand, the African Intellectual Property Organisation (AIPO) brings together French-speaking African countries, mainly playing a role of simplifying the administrative procedure for patent applications by its member states. On the other hand, English-speaking African countries are grouped by the African Regional Intellectual Property Organisation (ARIPO), which incorporates a similar simplified application procedure but also rules substantial patent law provisions. As for biotechnology and the patentability of plants and animals, AIPO's Bangui Agreement establishes an exclusion-form patentability for plant varieties, animal species, and essentially biological processes for the breeding of plants or animals other than microbiological processes and the products of such processes, under its Article 6 (c).
35. Article 28 §1 (a) TRIPS Agreement (as regards product patents) and Article 28 §1 (b) TRIPS Agreement (as regards process patents).
36. Article 27 §1 TRIPS Agreement.
37. Article 33 TRIPS Agreement
38. The classification as either a developed or a developing country does not depend on strict WTO criteria, but on (challengeable) self designation.
39. Article 65 TRIPS Agreement.
40. For LDCs, WTO follows the UN categorization, which sets three cumulative criteria for their identification. According to Article 11 §2 of the WTO Agreement (Agreement Establishing the WTO, Marrakesh, 15 April 1994, 33 International Legal Material 15 (1994); available at www.wto.org/english/ docs_e/legal_e/04-wto.pdf (last visited 7 October 2007).
41. Article 66 TRIPS Agreement.
42. WTO, Doha Ministerial Declaration on the TRIPS Agreement and Public Health, 14 November 2001, WT/MIN(01)/DEC/2, at §7; available at www.wto.org/english/tratop_e/dda_e/dda_e.htm (last visited 7 October 2007).
43. TRIPS Council, Decision of the extension of the transition period under Article 66 §1 for least developed countries, 29 November 2005; available at www.wto.org/English/news_e/pres05_e/pr424_e.htm (last visited 7 October 2007).
44. As guaranteed under Article 28 of the Agreement.
45. Article 30 TRIPS Agreement. See on the concrete content of these criteria: WTO Dispute Settlement Body, Panel Report: Canada - Patent Protection of Pharmaceutical Products, WT/DS114/R, 17 March 2000.
46. Under Article 31 of the TRIPS Agreement.
47. This concept is generally linked to safety issues. In fact, the Technical Board of Appeal of the European Patent Office established the principle that claimed subject matter that is likely to prejudice the environment seriously should be excluded from patentability for being contrary to the ordre public (Technical Board of Appeal of the European Patent Office, Plant cells/PLANT GENETIC SYSTEMS, 21 February 1995, T 356/93; Official Journal of the European Patent Office (1995) 545, §18).
48. Obviously, issues of biosafety and biodiversity immediately come to mind (see, for instance, Gertrui Van Overwalle, Influence of Intellectual Property Law on Safety in Biotechnology, in World Congress on Safety of Modern Technical Systems (Saarbrücken TÜV-Verlag) (2001), pp. 664-670). Yet it remains to be seen to what extent patent examiners can assess safety.
49. Under EPO case law, the concept of morality is a belief about whether a certain behavior is right or wrong on the basis of the totality of norms that are deeply rooted within European society and civilization (see Technical Board of Appeal of the European Patent Office, Plant cells/PLANT GENETIC SYSTEMS, 21 February 1995, T 356/93; Official Journal of the European Patent Office (1995) 545, §6).
50. For a deeper analysis of both the concepts of ordre public and morality in relation to biotechnology, see Michelangelo Temmerman, The Patentability of Animal Genetic Systems, Berne, NCCR Working Paper 2007/04, pp. 76-105; available at www.nccr-trade.org (last visited 24 September 2007).
51. Article 27 §2 TRIPS Agreement.
52. This basically refers to IPR systems of a different nature from those categorized under the TRIPS Agreement (patents; trademarks; etc.).
53. No such obligation has been incorporated concerning animal varieties, however.
54. Article 27 §3 (b) TRIPS Agreement.
55. Margaret Llewelyn, Which rules in world trade law - patents or plant variety protection, in Thomas Cottier and Petros Mavroidis (eds.), Intellectual Property, Trade, Competition, and Sustainable Development: Studies in International Economics. Ann Arbor, University of Michigan Press (2003) at 330.
56. The distinction between plants as a generic term and plant varieties as a taxonomic rank has been discussed extensively in the case law of the European Patent Office; see Enlarged Board of Appeal of the European Patent Office, Transgenic Plant/NOVARTIS II, 20 December 1999, G1/98; Official Journal of the European Patent Office (2000) 125.
57. Union Internationale pour la Protection des Obtentions Vegetales, International Convention for the Protection of New Varieties of Plants, 2 December 1961, as Revised at Geneva on 10 November 1972, 23 October 1978, and 19 March 1991; 1861 United Nations Treaty Series 281; available at www.upov.int/en/publications/conventions/1991/act1991.htm (last visited 2 October 2007), "UPOV Convention 1991."
58. Article 5 of the UPOV 1991 Convention.
59. Supra note 52 at 316.
60. See in relation hereto: Philippe Cullet, Intellectual property rights and food security in the South, 7(3) The Journal of World Intellectual Property 261, 261 (2004).
61. Also, with regard to protection of traditional knowledge: Cottier, T. and Panizzon, M., A new generation of IPR for the protection of traditional knowledge in PGR for food, agricultural and pharmaceutical uses, in Rights to Plant Genetic Resources and Traditional Knowledge: Basic Issues and Perspectives (Thomas Cottier and Susette Biber-Klemm, eds., Swiss Agency for Development and Cooperation, World Trade Institute, Cabi Publishing, Oxfordshire (2006), pp. 203-238;
62. and Graham Dutfield and Darrell A Posey, Indigenous Peoples and Sustainability: Cases and Actions, Utrecht, IUCN International Books (1997). In law, see the Costa Rican Ley de Biodiversidad (1998) and the Andean Community's Common System on Access to Genetic Resources (1996).
63. Supra note 52 at 310.
64. In Europe, for instance, plant, animal, or even human genetic sequences are not considered to fall under the definition of "plants," "animals," or "humans" but are instead equated with chemical substances. However, the scope of a patent on a gene sequence might be wider than merely the sequence in its isolated laboratory form and might instead extend to the (plant-) organism into which the gene sequence has been inserted and is performing its function, regardless of whether the organism itself is patentable. In this context, moreover, the possibility of excluding plants and animals is severely limited by the fact that non-essentially biological processes (e.g., processes of genetic engineering) must be patentable and that the product obtained directly by that process (regardless of whether this itself is patentable or not) (which can very well be a plant or an animal) has to fall under the scope of protection of such process patents under Article 28 § 1 (b) of the TRIPS Agreement.
65. In fact, of a list of 50 LDCs, 32 are WTO members. In Africa, this list includes Angola, Benin, Burkina Faso, Burundi, Central African Republic, Chad, Congo, Democratic Republic of the Djibouti, Gambia, Guinea, Guinea Bissau, Lesotho, Madagascar, Malawi, Maldives, Mali, Mauritania, Mozambique, Niger, Rwanda, Senegal, Sierra Leone, Tanzania, Togo, Uganda, and Zambia. Cape Verde, Ethiopia, Sao Tome & Principe, and Sudan are in the process of accession (www.wto.org/English/thewto_e/whatis_e/tif_e/org7_e.htm (last visited 7 October 2007).
66. Two versions of the UPOV Convention can be adhered to: UPOV 1978 and UPOV 1991.
67. Patricia Kameri-Mbote, David Wafula, and Norman Clark, Public/Private Partnerships for Biotechnology in Africa: The Future Agenda. African Centre for Technology Studies, Nairobi/ International Environmental Law Research Centre, at 22 (2001); available at www.ielrc.org (last visited April 2007).
68. UPOV adherence is limited to a few African countries, most of which have joined the weaker 1978 version of the Convention.
69. Andrew Hall, Geoffrey Bockett, Sarah Taylor, M. V. K. Sivamohan, and Norman Clark, Why Research Partnerships Really Matter: Innovation Theory, Institutional Arrangements and Implications for the Developing New Technology for the Poor, 29(5), World Development, 783 at 785 (2001).
70. International Fund for Agricultural Development (IFAD), Rural Poverty Report 2001: The Challenge of Ending Rural Poverty, 2001, at 168; available at http://www.ifad.org/poverty/.
71. Patricia Kameri-Mbote, David Wafula, and Norman Clark, Public/Private Partnerships for Biotechnology In Africa: The Future Agenda. African Centre for Technology Studies, Nairobi/ International Environmental Law Research Centre, at 12 (2001); available at www.ielrc.org (last visited April 2007).
72. David J. Spielman, Frank Hartwich, and Klaus Von Grebmer, Sharing Science, Building Bridges, and Enhancing Impact: Public-Private Partnerships in the CGIAR. Washington, D.C., International Food Policy Research Institute, Discussion Paper 00708, (2007) at 34.
73. Supra note 66 at 11-12.
74. Supra note 66 at 12.
75. Supra note 21 at 503-505.
76. Supra note 67 at 29.
77. Supra note 67 at 32.
78. Supra note 66 at 14.
79. Supra note 21 at 503-505.
80. Supra note 27 at 10.
81. Supra note 27 at 14.
82. A remarkable example in this field is the European UPOV system, which establishes a mechanism of farmer's privilege. It makes a distinction between "small" farmers, who are allowed to invoke the right without having to make a financial contribution, and larger-scale farmers, who need to remunerate "equitably" the UPOV rights holder.
83. TRIPS Council, Decision on the extension of the transition period under Article 66 §1 for least developed countries, 29 November 2005; available at www.wto.org/English/news_e/pres05_e/pr424_e.htm (last visited October 2007).