The impact of intellectual property rights (IPRs) on food and agriculture in
developing countries
1. The concept of IPRs
Firstly, a few words about the concept of IPRs in general. IPRs are
intangible rights which grant an exclusive right to impede others to freely
exploit an invention or creation. Different forms of IPRs exist such as
patents, trademarks, industrial designs or copyrights. Each form of IPRs has
different requirements and grants different rights.
For example, patents are granted on inventions which are novel, inventive,
with a useful application and sufficiently described to allow verification.
Some things may not be patented, such as discoveries. Patents are granted
for a limited time period, usually 20 years, and are only valid in the
country where they have been granted. Registered trademarks also have
national coverage and the time limit of the rights may be extended. Plant
variety protection provides protection to new plant varieties that have not
been previously commercialised, that are distinct from existing varieties,
that are uniform in their main characteristics and stable over the years for
those characteristics. Unlike patented material, protected varieties can be
used for the development of new varieties without the authorisation of the
rights holder.
IPRs in general, and the patent system in particular, were established
originally as a way to reward creativity and promote innovation. They allow
the holder of the rights to recoup the investment in research required to
develop the new invention, which can be quite substantial for high
technology inventions and, in exchange, society receives the benefit of the
disclosure of the new invention.
2. IPRs in the field of biotechnology for food and agriculture
Before the whole range of possibilities offered by modern technologies in
the agricultural sector were available, inventions based on living organisms
were considered natural phenomena, i.e. discoveries, and were thus not
patentable. However, developments in modern biotechnology require
substantial levels of investment in research and development, and its
processes and products can be easily copied. The IPRs system provides a way
of ensuring the financial revenues required to make the technology
profitable.
In 1980, the United States Supreme Court made a landmark decision in the
Diamond versus Chakrabarty case. The ruling stated that a live, human-made,
genetically engineered bacterium (of the genus Pseudomonas, that was
modified to break down components of crude oil) could be patented, thus
initiating an era of massive private investment in biotechnology and of
rapid expansion in the patenting of new biotechnological innovations and
products. Many biotechnology companies and universities have since applied
for and been granted patents on a wide range of biotechnology processes and
products, involving genes, viruses, bacteria and even living higher
organisms.
While the positive impact of the IPRs system on investments in research is
not in question, concerns have been raised regarding the following issues:
a) The limits of patentability
The difference between invention and discovery becomes a matter of
interpretation when it refers to living material. The isolation of a gene
from its natural environment and the identification of its function render
the gene and its sequence an invention for patenting purposes in some
countries. The impact of patenting of genes in the agricultural sector
cannot be minimised and should be discussed in this conference.
b) Patenting of "enabling technologies" (i.e. technologies that are
essential for the practical implementation of a wide range of other
biotechnological processes and products)
This issue is of great importance as it has an impact on access to these
technologies, not only by developing countries but also by the agricultural
research system in general.
c) The multiplicity of patents required to develop an agricultural product
This complicates management of the research agenda. Developments in modern
agricultural biotechnology require the use of several processes and
products, which in most cases will be subject to patent protection. As an
example, let us consider development of genetically modified (GM) crops.
Firstly, individual genes, affecting characters of interest such as disease
resistance or herbicide tolerance, are patentable. Secondly, DNA sequences
controlling the expression of these genes, such as promoters, may also be
patented. The two methods most widely used for transferring foreign DNA, as
well as methods for identifying plant cells that have successfully
incorporated the foreign genes, are also patented. Thus, many steps of
patented technologies are required for the development of a product in the
field of agricultural biotechnology.
An example illustrating the complexity of IPRs is "golden rice", a rice
plant into which three foreign genes (two from the daffodil and one from a
bacteria) have been introduced so that it produces provitamin A. The plant
variant was produced by researchers collaborating in Switzerland and Germany
and there is large interest in making it available to farmers in developing
countries. However, the number of concurrent patents has complicated this
possibility. Seventy techniques and materials used in developing the variant
are patented, and they are owned by 32 different parties.
d) Patents on specific genes usually extend to the GM organisms into which
the genes are inserted, thus bringing the entire organism under patent
protection.
This question has raised considerable debate in the crop sector. Eventual
financial revenues are granted to the patent holder, without compensating
the developers of the original plant variety. In some cases, however,
particularly when the original plant variety is protected through plant
variety protection, sharing of benefits is achieved on a contractual basis
with the patent holder.
e) Concentration of the agricultural industry
Another important element in this discussion is that a small number of
multinational companies (MNCs) dominate the field of agricultural
biotechnology. Companies from developed countries therefore own many of the
important IPRs in this area, and the power that this provides is
concentrated in very few hands. For example, it is reported that of the
roughly 270 patents related to genes of the soil bacterium Bacillus
thuringiensis (Bt) granted from 1986 to 1997 in countries of the
Organisation for Economic Co-operation and Development (OECD), about 60%
were owned by only six MNCs. As the development of biotechnology products
requires the use of many protected technologies, the private sector usually
overcomes this problem by cross-licensing their patents, involving the
mutual exchange of access to patented products or processes without
financial compensation. For small organisations that do not have IPRs to
trade, licensing negotiations may be difficult and costly.
From discussions during Conference 1 of the Forum (entitled "How appropriate
are currently available biotechnologies in the crop sector for food
production and agriculture in developing countries"), it was apparent that
many participants were convinced that the impact of IPRs on agricultural
biotechnology in developing countries was quite substantial. Some of the
potential consequences mentioned by participants were:
a) Increased dependency of developing countries on developed countries:
The
point was made that the existence of strong IPRs, and the fact that the
rights over the technologies and products are often owned by MNCs, might
lead to (increased) dependence by developing country farmers on MNCs and
developed countries.
b) Patenting of genetic resources native to developing countries:
Patents
can and have been issued to companies from developed countries over genetic
material from developing countries, particularly for pharmaceutical and
cosmetic purposes. In some cases, the lack of appropriate mechanisms for
sharing of benefits has generated considerable controversy. A much-cited
example is that of the neem tree (Azadirachta indica), which is a member of
the mahogany family and which is indigenous to the Indian subcontinent where
it has traditionally been used for agriculture, medicine and cosmetics.
Around 90 patents exploiting the tree have been granted world-wide. In some
cases, patents have been granted for particular uses, which are already
known by traditional indigenous communities, not fulfilling the novelty
requirement. Following a legal challenge, the European Patent Office in May
2000, revoked one of the patents (number EP0436257), granted to an American
MNC and the United States Department of Agriculture, on a neem seed extract
with insecticide and fungicide properties on the basis of its lack of
novelty. Patent litigation costs are high and are an important factor in
deciding whether to challenge such patents.
A more detailed summary of what the participants said can be found in the
Summary Document of Conference 1 sent to Forum members on 2 October 2000 and
which is also available on the Forum website at
http://www.fao.org/biotech/logs/C1/sum.htm .
3. Factors that should be discussed in this conference
The main topic of this e-mail conference is the impact of IPRs (over
biotechnological products and processes) on food and agriculture in
developing countries.
The following areas should be considered during the conference:
- What are the impacts of IPRs (positive or negative) for food and
agriculture in developing countries
- Compare the relative impacts in the animal, crop, fishery or forestry
sectors
- Are the impacts different for different countries or regions of the
developing world
- Are the impacts more substantial for some biotechnologies than for others
- If some of the impacts or consequences are negative for developing
countries, how can they be avoided or alleviated
- Whether the lack of an appropriate or harmonised IPRs system in a
developing country can have an impact on biotechnology transfer
NB: When submitting messages (which should be no more than 600 words),
participants are requested to ensure that their messages address some of the
above elements.
- Join the Forum.
- Read the messages posted [beginning March 20].
Top of page
