Patenting Agriculture: An Emerging Opportunity or Threat for Society

Priyanka Sardana and Vijay Sardana

More than one million children die each year because of a nutritional deficiency in India. More than that numbers suffer from nutrition related disease. Many of these children live on rice as a main staple. To help solve the nutrition problem, scientists are developing new varieties of crops which can yield more than the conventional crops and also have genetically engineered to add special dietary requirements like vitamins, for example a variety of rice that is rich in beta carotene, an important source of vitamin A. Commonly known as golden rice, it could help improve millions of lives in India and other developing countries, as well as improve the nutrition of people in developed countries. So let us go for it. A wonderful crop made to solve the problem of the society at large.

It is however not easy to simply procure a seed and start producing it. A careful study shows that anyone wanting to produce golden rice might have to secure licenses for more than 30 groups of patents issued to separate entities.

Question which needs careful thinking and evaluation is what is more important: low cost availability of crop seeds to solve the problems of mankind or restricted circulation of crop seeds so that only few can use it and corporate will decide who can take the benefit of the science because they want to extract their pound of flesh much more than the investments made which was required to develop the seed variety by using existing seed varieties, means they have not invented the rice, they have just added a feature to the existing seeds. The only criteria used for restricted circulation is because they were first to invent the solution to the problem of mankind.

Is this fair approach?

The above mentioned issue is just one of the many dimensions which agricultural system has to address because of patenting regime.

The long-term challenge for Indian agriculture is very serious. India’s population is expected to rise by 1.7 percent over the next decade. The current agriculture system simply will not be able to feed this country. We will need a new approach for sensible Green Revolution to provide adequate food without seriously damaging the environment.

Despite recent consumer skepticism, genetically modified crops such as golden rice are one of the only ways to drive such a revolution for emerging challenges.  Scientific community is also divided on this issue. Many scientists say that these GM seeds offer a safe route to crops that are more productive, that better resist plant disease and stress, and that provide improved nutrition. Biotechnology research projects offer not just golden rice but also crops that are resistant to viruses and insect pests. Drought- and salt-resistant crops are possible as well.

But beyond the problem of public acceptance, safety and quality, there is the serious issue related to patents. Are we creating barrier of patents in the way of scientific development?

Patents on genetically modified seeds, the biotechnology techniques for creating them, and the gene sequences of plants themselves are becoming a serious issue. The patent system, designed to foster innovation, may be hampering the use of new technologies and techniques for faster development and in fact slowing the application of modern science for some of applications required by the society.

How the patents evolved in Agriculture system?

Until about 1980, the only intellectual property protection available for crop plants was Plant Breeders’ Rights (PBRs), a relatively weak form of legal protection that prevailed in most developed nations. A country’s department or ministry of agriculture issued a PBR certificate to a seed owner that prevented competitors from selling seeds or breeding material from the owner’s specific seed variety. However, the PBR allowed competitors to use the protected varieties as sources of subsequent seed variation in their own breeding programmes. But then the United States began to permit regular patents on living organisms such as plants and seeds, as well as on genes and a variety of other biological plant components and diagnostic materials, all of which are much more restrictive than PBRs. These broadened intellectual property rights have helped create the new biotechnology industry.

TRIPS Agreement

Other nations are adopting similar rules, partly to encourage their own industries and partly because of the Trade Related Intellectual Property (TRIPS) agreement. Under this agreement, signed in 1994 as part of the Uruguay Round of trade negotiations, all nations, including developing nations, committed themselves to an intellectual property regime that would protect plant varieties. As this agreement is implemented, a company in almost any nation will be able to obtain exclusive rights to a particular seed or variety and keep others from selling it. Because of trade and need for foreign investment needs of other developed and developing nations are also following the U.S. lead and are beginning to provide regular patent protection on various genes, plants, seeds, and biological procedures. This is a precondition in many bilateral and multilateral trade negotiations between countries.

Patenting laws

The other factor that spawned the move toward more restrictive intellectual property rights was the 1980 Bayh-Dole Act in USA, which gave universities the right to obtain patents on and to commercialize inventions created under government grants. This legislation was supported by the argument that important inventions would languish in the absence of such intellectual property rights. Although many university patents and a number of successful products have resulted, the law has led to legal wrangling as universities argue over rights to use one another’s very basic patented inventions in research.

Is it Boosting or Hindering Research?

Many studies are indicating that that proprietary right to basic research procedures and reagents may seriously slow the flow of scientific information and therefore potentially hinder the progress of science. Nevertheless, the pursuit of royalties is spreading to universities and government research institutions in Europe, Japan, and the developing world, as many nations consider and adopt similar laws. Their research institutions hope that license revenue can be a source of income in periods of shrinking government support. However, the resulting patents may also slow and complicate the application of biotechnology to meet the developing world’s food needs.

Patenting: A problem or solution?

The number of patents in many areas of basic agricultural research is growing exponentially. For example, U.S. patents related to rice remained well below 100 per year through 1995. But in 1999 and 2000, more than 600 patents were issued annually. There will be many more for crops such as corn, which have greater commercial interest in the West. Further evidence of the rapid patenting of basic agriculture comes from a recent survey published in Nature, which found that about three-quarters of plant DNA patents are in the hands of private firms, with nearly half of them held by 14 multinational companies; virtually no such patents existed before 1985.

Changing Approach

The United States permits the broadest variety of agricultural patents. It has issued regular patents for entire plant lines, such as specific lines of herbicide-resistant rice. Such varieties are probably unpatentable in most nations, where only PBR protection is available for plant lines. The U.S. patentability of plant varieties was upheld early in 2000 in an appellate case, Pioneer v. J.E.M. Agric. Supply, which the Supreme Court is now reviewing. The claims of these patents typically extend to the progeny of the plant and its seeds. The claims clearly are designed to keep other breeders from using the protected seed for breeding material, which will restrict its use in U.S. research for developing-world applications.

There are also very broad U.S. and European patents on groups of plant varieties, such as the U.S. Agracetus patents that seek to cover all transgenic cotton and soybeans. These patents, if valid, could give Monsanto, which has acquired Agracetus, control of all transgenic varieties of these crops.

Is it Self-defeating or self-promoting?

Of most importance to plant breeders, however, are patents covering specific technical procedures used in agricultural genetic engineering. Technology to create hybrid rice, for example, was developed largely in China, where hybrid seed provides a substantial portion of the country’s rice. Although the China National Seed Corporation’s early patents are no longer in force, the company patented certain aspects of the technology in the United States. These patents deny breeders access to research tools that could be useful in developing new varieties of many crops. Patents have also been granted on other ways to produce hybrid seed.

Further limitation on research could come from a U.S. patent for the gene gun, one of the most common means for inserting genes into plants. It was issued to Cornell University, which licensed it to DuPont. Similarly, Monsanto holds a patent on the 35S promoter, a portion of DNA that is often inserted with a plant gene to encourage its expression. If breeders cannot use such tools or need licenses to use them, it will be substantially more difficult and expensive for them to produce superior seeds.

There are many more dimensions to Patenting Agriculture which we will discuss in future articles. We request you to have your own evaluation of the issue and situation and express your views either to authors or to the editor. This series of articles is an earnest attempt to create awareness about the emerging issues, opportunities and challenges due to intellectual property regime.


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