Patenting Agriculture: Likey scenario in future for food crops

Priyanka Sardana and Vijay Sardana

Earlier the discussion in brief was on various dimensions of agriculture patenting and its implications. In this article we will continue with the discussion with a focus on what is likely scenario in future for food crops.

Patenting genes and DNA

Genes are fundamental to life and they hold the key information about the express or functioning of certain key characteristics in the plant. It means they cannot be invented. They can only be discovered. At the same time, genes themselves are now routinely patented, typically with claims that cover the isolated gene, various constructs that include the gene, plants transformed with those constructs, and the seed and progeny of those plants. Plants that naturally contain a given gene are not novel and therefore the patent does not apply to them or to breeding with them. But any other use of the gene, its constructs, seeds, or progeny may be prohibited. For example.  The University of California patent on the Xa21 Kinase gene, which makes grains resistant to disease. The work which was done at IRRI was important to identifying the gene, and the university arranged to protect IRRI’s right to use the gene.

In the knowledge intensive commercial world, every thing is not in public domain, the rights to some other genes are securely in private hands, with no commitment to make them available. It is the case for some of the patents for inserting into plants the genes that code for viral coat proteins, which confer resistance to plant viruses.

A well known case in agriculture patent debate is for many of the patents for Bacillus thuringiensis (Bt) technology, in which bacterial genes inserted into plants code for toxic proteins that kill insects. Loose granting of Bt claims has led to hundreds of often overlapping patent rights that have been the subject of substantial litigation. At least four different companies, for example, have laid claims to Bt-transformed maize. It is almost impossible for a researcher to find ways through this patent thicket.

Loose patenting a serious threat

Loose granting of patent is a dangerous trend because it not only creates unnecessary litigation but also discourages other researchers to work in and around that activity. This leads to a sub-optimum use of the bio-resources by few selected and deprive the society in advancement in the scientific research.

The situation is very complex; most of the Genomic information is typically protected through trade secrecy practices, not even by patents. In this system, a company that creates a substantial database or map of a genome provides access only under agreed terms, which might include a mechanism for compensation. It has good and well bad implications. This model is also the basis for important international non-profit cooperation. For example, because rice is so important to the world’s poor and its genome is smaller than that of some other cereals, a global genome sequencing effort is being carried out by Japan, Korea, China, the United States, the European Union, and the Rockefeller Foundation through the International Rice Genome Sequence Working Group. Information will be placed into public databases, and the participants have agreed not to file patent applications on the sequences.

Many private sector companies like Monsanto has also developed a sequence of its own and has agreed to make its genomic rice information available for public breeding in developing nations but the companies like Syngenta and Myriad Genetics completed a rice sequence and have promised to provide information and technology for developing world subsistence farming, but they are not putting their sequences in the public domain. Moreover, many of the important rice genes may be patented, and it is not clear that other genomes or the genomes of major pathogens will be as readily available. It means commercial interest, not the society’s interest, will decide the introduction of technology.

Growing threat of Monopoly behaviour of cartels in Agriculture Production System

The way trends are going, the ‘survival of the fittest’ will be the deciding factor and all options will be used to kill the emerging threat or competition. The patenting trend is paralleled by an enormous concentration of agricultural biotechnology. Five large companies–Aventis, Dow Chemical, DuPont, Monsanto, and Syngenta–now control a substantial piece of the agricultural patent portfolio.

Monopoly powers

Big companies have big plans and well thought out strategy. It is a well thought out game plan:

1. The companies have been purchasing smaller biotechnology companies in order to obtain the technologies those companies have developed and to avoid present and future competition.

2. These companies acquire or merge with chemical and pharmaceutical companies for access to production capacity and chemical markets, and

3. They buy seed firms throughout the world to improve their ability to market new products.

In this process, they have assembled broad intellectual property portfolios.

Society is the looser

As the concentration of the industry is growing, the amount of agricultural research is shrinking. The reduction may in part be a response to recent environmental and consumer criticism of bioengineered foods, but it may also stem from decreased incentive because of industry consolidation, it means when there is no challenge why to spend more on research.

Developing Countries growing food system is the next target:

Several of these large firms have for the post few years actually begun to take an interest in developing world markets. The are interested in soybeans and the major grains (maize, wheat, and rice), where developing-world markets are large and where there may also be major export potential, but it also extends to rice, the seed of which was viewed until recently as a fundamentally non-commercial product, supplied by public institutions on a free or low-cost basis.

During the Green Revolution, better varieties were developed under donor funding at public funded research institutions. The institute freely transferred new varieties and innovative breeding materials to national research centres. They, in turn, further bred varieties that were optimized to local growing conditions and released them to national systems for production and distribution to farmers.

Now big giants companies are moving in. Pioneer, now owned by DuPont, has established research programmes in India. Private hybrid rice breeders such as Mahyco also have emerged there. Monsanto has undertaken collaborative research with the Indian Institute of Science. Japan Tobacco became interested in rice seed. And the developing-world components of Cargill had already begun a hybrid rice-breeding programme before being acquired by Monsanto.

Patent systems and customised action plan

Global patent searches show that these and other agricultural majors are seeking to protect their intellectual property positions in large developing nations, including China, India and Brazil. Even though these nations may not issue the full panoply of legal protections available in the United States, but these companies may patent important research procedures, tools, and gene constructs.

Challenge for domestic seed and chemical companies is round the corner

Seeds Market

The private sector’s interest in providing rice seed to developing nations reflects the growth of substantial commercial markets in developing countries. The total value of the rice produced in the two leading Asian markets is easily more than that of the U.S. maize crop that has induced so much private research. This does not immediately convert into a seed market, because harvested rice can generally be used as seeds. Private-sector investment will depend on some form of proprietary position: successful hybrids or plants protected by either intellectual property rights or by a “terminator” technology that makes the rice plants infertile. There may be difficulties in achieving this position, but the Asia’s rice potential is big enough for companies to want to try.

Agro-chemicals market

Private firms also have a commercial interest in marketing chemicals. By transferring into national crop lines the genes necessary for herbicide resistance, a firm can create a larger market for the herbicide. China has already made intellectual property rights available on herbicides. India has granted exclusive marketing rights and its laws require granting full patents are also amended in 2005.

Challenge for developing countries

When the multinational firms enter markets such as the Indian rice seed market, they will probably come with seeds that are better than those now available. Many scientists argue that the use of herbicide-resistant plants is environmentally better than the alternative ways of fighting weeds. But the private-sector seeds will probably be developed only for the larger commercial markets; it will be a long time before the private sector improves small crops or serves subsistence farmers. More important, there is a very serious possibility that, because of patent rights and the small number of large companies, the multinational industry will hold a monopoly or oligopoly on transgenic seeds, keeping out competitors and even the public sector. Prices will therefore also be higher than current prices. Finally, it may be impossible or at least very expensive to gain access to patented technologies or to use protected varieties for research in developing new applications for the smaller crop or subsistence farmer.

Question to be answered by policy makers

In such situation the question being asked is who will provide the better seeds at affordable price to poor and subsistence farmer to compete with progressive and rich farmers in free market place?

There are many more dimensions to Patenting Agriculture, which will be discussed, 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 on “Managing Intellectual Property” is an attempt to create awareness about the emerging issues, opportunities and challenges due to intellectual property regime.


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