Journal of Intellectual Property Rights

Open Access Open Access  Restricted Access Subscription Access

The Co-Evolution of Science and Law in Plant Breeding:Incentives to Innovate and Access to Biological Resources


Affiliations
1 National Scientific and Technical Research Council (CONICET) & University of Buenos Aires, IIEP-Baires, Av. Cordoba 2122, C1120, CABA,, Argentina
 

This paper analyses the co-evolution of scientific progress and intellectual property protection in plant breeding and the debates generated in its design and implementation. It relates the institutional history to several problems related with incentives to innovate, appropriability of innovation rents, disclosure and cumulativeness, and diffusion and access to biological resources. We identify three main issues that were fiercely discussed along history: firstly, whether plant varieties and other biological resources could be considered as inventions or simple products of nature, secondly, how to provide incentives to plant breeders without preventing access to innovation and looking upon the contribution of farmers to obtain present improved varieties, and, thirdly, the social cost of generating monopolies in plant breeding and agriculture as food producers. These three issues have shaped the debates and remained controversial until our days. The analysis shows that legal and scientific factors evolved at different paces, resulting in different IPRs systems, and giving raise to several problems.

Keywords

Intellectual Property Rights, Plant Breeders’ Rights, Patents, Plant Varieties, Biotechnology, Incentives, R&D, Green Revolution, The Plant Patent Act, International Convention for the Protection of New Varieties of Plants, Essentially Derived Variety, The European Patent Convention, Genetic use Restriction Technologies.
User
Notifications
Font Size

  • Most plants can be reproduced sexually, using seeds or spores. Plants that are reproduced through seeds have two parents and may present different characteristics from them. There exist mechanisms of asexual reproduction, where there is no exchange of genetic material as there is only one parent, which are relevant for horticulturists to multiply plants rapidly and with low variability.

  • Campi M & Nuvolari A, Intellectual property protection in plant varieties. A new worldwide index (1961-2011), Research Policy, 44 (4) (2015) 951-964.

  • Alston J & Venner R, The effects of the US Plant Variety Protection Act on wheat genetic improvement, Research Policy, 31 (4) (2002) 527-542.

  • Leger A, Intellectual property rights in Mexico: Do they play a role? World Development, 33 (11) (2005) 1865-1879.

  • Campi M, The effect of intellectual property rights on agricultural productivity. Agricultural Economics, 48 (3) (2017) 327-339.

  • Bugos G E & Kevles D J, Plants as intellectual property: American practice, law, and policy in world context, Osiris, 7 (1992) 74-104.

  • Kloppenburg J, First the Seeds. The Political Economy of Plant Biotechnology, (Madison: University of Wisconsin Press), 2004, 1492-2000.

  • Dutfield G, Intellectual Property Rights and the Life Science Industries: Past, Present and Future (London: World Scientific Publishing) (2009).

  • Janis M & Smith S, Technological change and the design of plant variety protection regimes, Chicago-Kent Law Review, 82 (3) (2007) 1557-1651.

  • Charnley B & Radick G, Intellectual property, plant breeding and the making of Mendelian genetics, Studies in History and Philosophy o f Science, 44 (2) (2013) 222-233.

  • For many decades, food security was considered a strategic policy matter and, more recently, became a priority in the agenda of several governments.

  • Darwin C, The Variation of Animals and Plants under Domestication (London: John Murray) (1868): 305.

  • Allen R C, Agriculture during the Industrial Revolution, 1700-1850, In R Floud and P Johnson (Eds). The Cambridge Economic History of Modern Britain (Cambridge: Cambridge University Press) (2004) 96-116.

  • Charnley B, Seeds without patents, Revue economique, 64 (1) (2013) 69-87.

  • Between 1865 and 1866, Gregor Mendel carried out experiments on the inheritance of characters between one generation of plants and the next one, formulating the three laws of inheritance, which became the foundation of modern genetics. His conclusions were rejected and abandoned until Erich von Tschermak, Hugo de Vries, and Carl Correns, reached independently the same conclusions, rediscovering Mendel’s laws.

  • Griliches Z, Hybrid corn and the economics of innovation, Science, New Series 132 (3422) (1960) 275-280.

  • For instance, the “Polymerase Chain Reaction” is an enzymatic reaction that amplifies sections of Deoxyribonucleic Acid (DNA) in a very fast way and can be used for tracking DNA sequences in a genome. As well, the marker-assisted selection uses molecular markers that link traits of interest. Ben-Ari G & Lavi U, Marker-Assisted Selection in Plant Breeding, In Altman A and P M Hasegawa (Eds.). Plant Biotechnology and Agriculture: Prospects for the 21st century. Academic Press (2012) 163-184.

  • Blakeney M, Patenting of plant varieties and plant breeding methods, Journal o f Experimental Botany, 63 (3) (2012)1069-1074.

  • Harfouche A, Meilan R, Grant K & Shier V K, Intellectual Property Rights o f Biotechnologically Improved Plants, In Altman A and P M Hasegawa (Eds.). Plant Biotechnology and Agriculture: Prospects for the 21st century. Academic Press (2012) 525-539.

  • By biological protection, we mean that the plant has a protection against reproduction given by its biological characteristics, even when this was achieved through scientific progress.

  • An important exception is the US utility patent granted in 1873 to Louis Pasteur for “improvement in the manufacturing of beer and yeast”, including a claim for: “yeast, free from organic germs disease, as an article of manufacturing”. US Patent No 1,41,072.

  • Charnley B & Radick G, Plant Breeding and Intellectual Property Before and After the Rise o f Mendelism: The Case o f Britain, In Kevles D J et al. (Eds.), Living Properties: Making Knowledge and Controlling Ownership in Modern Biology (Berlin: Max Planck Institute for the History of Science) (2010).

  • Moser P & Rhode P W, Did Plant Patents Create the American Rose? In Lerner J & Stern S (Eds.). The Rate and Direction of Inventive Activity Revisited (Chicago: The University of Chicago Press) (2011).

  • Kevles D, Patents, protections, and privileges, The establishment of intellectual property in animals and plants, Isis, 98 (2007) 323-331.

  • Rhode P W, Biological Innovation without IPRs: Cotton Breeding in the Antebellum American South, Working Paper, University of Michigan, 2015.

  • Mokyr J, The Enlightened Economy: An Economic History o f Britain1700-1850 (New Haven: Yale University Press) (2009).

  • Later, certain technological advances provided tools to identify plant varieties with more accuracy. For instance, DNA fingerprinting is a technique, available since the 1980s, used to analyze fragments of DNA to identify the pattern unique to each individual plant.

  • Olmstead A L & Rhode P W, Creating Abundance (Cambridge: Cambridge University Press) (2008).

  • Fay A E, Are plant patents “inventions”? Journal o f Heredity, 28 (7) (1937) 261-262.

  • Hyde A M, The Plant Patent Law, Journal o f Heredity, 21 (8 ) (1930) 357-361.

  • In 1889, the application of a patent for a fibre identified in the needles of a pine tree was rejected. The patent commissioner argued that patenting and providing monopoly power on a newly found form of life would be “unreasonable and impossible.” Boldrin M & Levine D K, Against Intellectual Monopoly (Cambridge: Cambridge University Press) (2010).

  • US House of Representatives. Congressional Record of Proceedings and Debates, Seventy-First Session, Senate Report No. 71-315, “Plant Patents” prepared by the Senate Committee on Patents, to a company. 4015, 2 April, Washington: GPO: 6(1930).

  • US House of Representatives. Plant Patents: Hearings before the Committee on Patents, House of Representatives, Seventy-First Session, Second Session on H.R. 11372, A Bill to Provide for Plant Patents, April 14. Washington: GPO: 11 (1930).

  • US House of Representatives. Congressional Record of Proceedings and Debates, Seventy-First Session, Senate Debate, April 14, Volume LXXII, Part 7. Washington: GPO: 7017 (1930).

  • Allyn R S, More about plant patents, Journal o f the Patent Office Society, 15 (12) (1933), 963-970.

  • Allyn R S, Plant patent queries, Journal o f the Patent Office Society, 15 (3) (1933) 180-186.

  • Dorsey M, What is a “Basic Plant Patent”? Journal o f Heredity, 27 (5) (1936) 213-216.

  • Dienner J A, Patents for biological specimens and products, Journal o f the Patent Office Society, 35 (1953) 286-295.

  • Cook R, The First Plant Patent, Journal o f the Patent Office Society, 15 (5) (1932) 398-403: 403.

  • Fowler C, The Plant Patent Act of 1930: A sociological history of its creation, Journal o f the Patent and Trademark Office Society, 82 (2000) 621-644.

  • East E M, Inbreeding and Outbreeding: Their Genetic and Sociological Significance (Philadelphia: J B Lippincott (1919): 224, cited in: Kingsbury N, Hybrid: The History and Science o f Plant Breeding (Chicago: University of Chicago Press) 2009, 245.

  • Federico G, Feeding the World: An Economic History o f World Agriculture, 1800-2000 (Princeton: Princeton University Press) (2005).

  • UPOV. Deliberations de la Conference (Paris, 1957). In UPOV (Ed.), Actes des ConferencesInternationales pour la Protection des ObtentionsVegetales. Paris: Publication UPOV No316 (1974).

  • Heitz A, The History of Plant Variety Protection. In UPOV (Ed.). The First Twenty-Five Years of the International Convention for the Protection of New Varieties of Plants. Geneva: Union for the Protection of New Plant Varieties (1987).

  • UPOV Act of 1991. International Convention for the Protection of New Varieties of Plants, http://upov.int/upovlex/en/acts.html.

  • Dutfield G, Food, Biological Diversity and Intellectual Property: The Role o f the International Union fo r the Protection o f New Varieties o f Plants (UPOV). QUNO Intellectual Property Issues Paper 9 (2011) 1-20.

  • But empirical analysis show mixed results. See, for example: Campi M. &Duenas, Intellectual property rights and international trade of agricultural products, World Development 80 (2016) 1-18, and Galushko V.“Do stronger intellectual property rights promote seed exchange: evidence from US seed exports? Agricultural Economics 43 (2 0 1 2 ): 59-71.

  • Rangnekar D, Plant Breeding, Biodiversity Loss and Intellectual Property Rights. Discussion Paper, Faculty of Human Sciences, Kingston University (2000).

  • Srinivasan C S, Concentration in ownership of plant variety rights: Some implications for developing countries, Food Policy, 28 (5) (2003) 519-546.

  • OECD,Concentration in Seed Markets: Potential Effects and Policy Responses. OECD Publishing, Paris, https://doi.org/10.1787/9789264308367-en (2018).

  • Clancy M S & Moschini G, Intellectual property rights and the ascent of proprietary innovation in agriculture, Annual Review o f Resource Economics, 9 (2017) 53-74.

  • For example, the OncoMouse patent was initially rejected in Europe and appealed several times until, in 2004, the patent was amended and maintained with limited claims.

  • Kranakis E, Patents and power: European patent-system integration in the context of globalization, Technology and Culture, 48 (4) (2007) 689-728.

  • For instance, the US ruled that GM seeds are not affected by the farmers’ exception, despite this contradicts the text of the Plant Variety Protection Act. In Argentina, several breeders that sell genetically modified soybean seeds include a private contract with the buyer that prevent them from reproducing the seed in the following season.

  • Smith S, Intellectual property protection for plant varieties in the 21st century, Crop Science, 48 (2008) 1277-1290.

  • Heller M A & R S Eisenberg, Can patents deter innovation? The anticommons in biomedical research, Science, 280 (5364) (1998) 698-701.

  • Nelson R, The market economy and the scientific commons, Research Policy, 33 (2004) 455-471.

  • Moser P, Ohmstedt J & Rhode P W, Patent citations: an analysis of quality differences and citing practices in Hybrid Corn, Management Science (2017).

  • Wright B D, Pardey P G, Nottenburg C & Koo B, Agricultural innovation: Investments and Incentives, In Evenson R &PingaliP (Eds.), Handbook o f Agricultural Economics ( Elsevier) (2007).

  • Byerlee D & Fischer K, Accessing modern science: Policy and institutional options for agricultural biotechnology in developing countries, World Development, 30 (6 ) (2002) 931-948.

  • Penin J & Wack J P, Research tool patents and free-libre biotechnology: A suggested unified framework, Research Policy, 37 (10) (2008) 1909-1921.

  • Atkinson R C et al., Public sector collaboration for agricultural IP management, Science 301 (5630) (2003) 174-175.

  • US Pat No 5,723,765.

  • Jefferson R A, Byth D, Correa C, Otero G & Qualset C, Genetic use restriction technologies. UNEP/CBD/SBSTTA/4/9/Rev. 1. Convention on Biological Diversity, United Nation Environmental Program (UNEP) (1999).

  • Mazzoleni R & Nelson R R, The benefits and costs of strong patent protection: A contribution to the current debate, Research Policy, 27 (3) (1998) 273-284.

  • Machlup F & Penrose E, The patent controversy in the nineteenth century, The Journal o f Economic History, 10 (1) (1950) 1-29.

  • Mayr E, The Growth o f Biological Thought. Diversity, Evolution, and Inheritance (Cambridge, Massachusetts: The Belknap Press of Harvard University Press) (1982).

  • Dosi G & Nelson R R, Technical Change and Industrial Dynamics as Evolutionary Processes, In Hall B H & Rosenberg N (Eds.), Handbook of the Economics of Innovation, (Amsterdam: North Holland/Elsevier) 1 (2010) 51-128.

  • Arrow K, Economic Welfare and the Allocation o f Resources fo r Invention. In The Rate and Direction of Inventive Activity: Economic and Social Factors, NBER Chapters (1962) 609-626.

  • Gallini N & Scotchmer S, Intellectual Property: When is it the Best Incentive System? In Innovation Policy and the Economy, NBER Chapters, 2 (2002) 51-78.


Abstract Views: 152

PDF Views: 124




  • The Co-Evolution of Science and Law in Plant Breeding:Incentives to Innovate and Access to Biological Resources

Abstract Views: 152  |  PDF Views: 124

Authors

Mercedes Campi
National Scientific and Technical Research Council (CONICET) & University of Buenos Aires, IIEP-Baires, Av. Cordoba 2122, C1120, CABA,, Argentina

Abstract


This paper analyses the co-evolution of scientific progress and intellectual property protection in plant breeding and the debates generated in its design and implementation. It relates the institutional history to several problems related with incentives to innovate, appropriability of innovation rents, disclosure and cumulativeness, and diffusion and access to biological resources. We identify three main issues that were fiercely discussed along history: firstly, whether plant varieties and other biological resources could be considered as inventions or simple products of nature, secondly, how to provide incentives to plant breeders without preventing access to innovation and looking upon the contribution of farmers to obtain present improved varieties, and, thirdly, the social cost of generating monopolies in plant breeding and agriculture as food producers. These three issues have shaped the debates and remained controversial until our days. The analysis shows that legal and scientific factors evolved at different paces, resulting in different IPRs systems, and giving raise to several problems.

Keywords


Intellectual Property Rights, Plant Breeders’ Rights, Patents, Plant Varieties, Biotechnology, Incentives, R&D, Green Revolution, The Plant Patent Act, International Convention for the Protection of New Varieties of Plants, Essentially Derived Variety, The European Patent Convention, Genetic use Restriction Technologies.

References