Patenting Agriculture: Strategic Options to Safeguard Interests of Stakeholders

Priyanka Sardana and Vijay Sardana

Our earlier articles have discussed the issues related to patenting in agriculture. It should not become a tool in the hands of few corporates, especially when food, feed and fibre are basis for survival and its sustainability will ensure the well-being of the civilization. A monopolistic situation will not only have adverse commercial interest but also impact social and political stability of the system. It will have serious impact on moral, legal and ethical values of any society.

In order to address the emerging situation because of IPR regime,society must develop systems to counter the negative impact of IPR regime.

Possible Options to balance the adverse impact of IPR regime

There can be many options to counter the balance of monopolistic dimensions of IPR regime in larger interest of society. It is clear that creation of any intellectual property needs lot of investments. In order to create intellectual wealth for themselves, companies may encroach on other’s intellectual wealth available in public domain to further their corporate vested interests.

The possible responses to the dangers of overly restrictive monopolistically designed intellectual property rights can be:

  • National governments to change their patent laws in larger interests of the society,
  • Public and private sectors to negotiate a licensing system that makes new technology available for the larger interests of the society,
  • Public research institutions to obtain rights to technologies on a case-by-case basis for larger interests of the society, and
  • Encourage Public research to focus on futuristic technologies and ensure that in medium to long term we have technologies to offset the monopolistic approaches.

While evaluating any of the option, let us be clear, nothing is free, there is bound to be revenue implications for stakeholders. The actual impact will depend on how strategically and efficiently we plan and negotiate.

Need to change patent laws in larger interests of the society

Developing nations are generally responding to the 1994 TRIPS agreement, in which all countries are committed to protecting work on crops by adopting as low a standard of protection as possible, typically PBRs only. It protects specific varieties but does not provide very significant incentives for biotechnology advances such as new genes or new transformation methods. Hence, multinational and even national firms are likely to press their governments to adopt stronger intellectual property protection. Developing nations, however, by the fear that such legal changes will increase royalty costs to their farmers, breeders, seed companies, and research groups, and give even greater advantage to the multinationals in the name of expenditure on technology and research clubbed with tax incentives in the name of research costs.

Link Tax incentives with Patent duration and Patent rights

Government should link tax incentive with duration of patent for private sector. If companies are seeking tax holidays and tax incentive for research there must be a clause that patent will be a joint property of government and private sector.

Administration and evaluation of patent applications

Nations might be able to help resolve this dilemma by fine-tuning their patent systems. For example, a stronger standard for rejecting patent applications for inventions that are “obvious” would slow the rise in the number of patents. Many patents currently issued in the United States may satisfy the patent law’s “nonobviousness” requirements as judged by lawyers, but they appear obvious to most scientists or engineers. A stronger standard would not affect important inventions that are really nonobvious, but it could decrease the risk that large firms might freeze others out by patenting numerous minor inventions and discourage others from taking the benefit of obvious logical extension of science.

Patents not used due to non-usefulness must be released for other research

Furthermore, to decrease the risk that a company can block others from large areas of science, the scope of patents could be narrowed. Use of a strong requirement that the invention be genuinely useful, rather than just an abstract concept, could help prevent patents from pre-empting broad areas of research by other scientists. So could provisions permitting the experimental use of patented inventions, notably the use of patented materials in breeding processes. Or there might be dependency license systems that permit subsequent inventors to use prior inventions on a reasonable royalty basis. These issues are important to discuss so that developing countries like India should not face derailment in its pursuit to have in-house R&D capability and there should be a competition and pressure for the companies to make sensible intellectual property which has usefulness for the society and do not block competition under the frivolous justifications for half-baked ideas like protected by patents.

Developing countries in their G-20 and G-80 groups should sponsor serious study and dialogue on whether such changes in patent laws might wisely balance the need for research incentives with the fact that researchers–especially those working for the needs of the poorest–must build on the work of previous researchers.

Competition Law and liability clause

Nations should also develop and use their own fair-competition laws to maintain a strong defence against monopoly by inserting serious liability clause for patented know-how in the seed supply sector. Market promotion in the name of patented technology should be balanced by serious liability claims, to ensure that patented knowledge-works for the people.

Even though the industry oligopoly is evolving at the global level beyond the control of developing nations, these countries might still be able to discourage the takeover of a local firm or use compulsory licensing in response to monopolistic practices. The barrier to these approaches is that the policy makers do not spend time in evaluating the impact of their policy decisions on stakeholders.  There is lack of staff or resources that allow them to define and implement the necessary policies. Educational and expertise-sharing programmes among patent offices or national and state bureaucracies would help. Domestic breeding companies themselves should be involved while designing good policy framework on the design of patent systems that affect seed and plants.

Public funding of licensing is also possible: Many donors and research funding institutions might be able to condition their grants on a commitment to license the technology for developing-world applications. Moreover, in the face of the current environmental and consumer concern about agricultural biotechnology, leading companies are becoming concerned about their image. They may be willing to facilitate licenses to developing nations in order to garner positive public relations.

Public-sector research rights: The public agricultural research sector has provided developing countries enormous benefits for many years and until recently was able to conduct biotechnology-based research without constraints imposed by the intellectual property system. Because life is no longer that simple, the public sector has to find a way to coexist with the private sector within the developing world itself.

Focus on Environmentally sustainable agricultural technologies

The public sector now must rethink its focus. One option is to move upstream from crop seeds and concentrate on the development of more environmentally sustainable agricultural technologies, which can be applied in cooperation with the private sector.

Provide an alternate to patented seed

The public sector should concentrate on subsistence crops and on varieties of commercial crops that appeal primarily to subsistence farmers. It is important to keep good-quality public-sector seeds available, even if they do not have the advantages of the newest seeds from the private firms. These seeds serve as competition to keep down the price of private-sector seed and thus make it more likely that poorer farmers can have sophisticated multinational technology at a reasonable price.

Transparency in scope of Patent and Public Awareness

Farmers and public should be made aware about the positive and negative implications of the patented technology so that farmers can make a sensible choice.  This will put the multinationals on defence and the cost of public relation and goodwill will force them to take a sensible approach towards patent regime and the type of product they are offering to the farmers.

Learning from other sectors

It is important to evaluate and learn from how consortiums of electronics and software industry on sharing of formats and consortium of pharmaceutical industry are able to develop a common platform for patented technologies and able to deliver innovations at reasonable price to expand their industry and making information and communication technology based products affordable to masses.

Patent regime is important to encourage innovations but having a monopolistic situation without any liability clause and accountability can ruin the stakes of vulnerable stake holders like poor farmers. It is the need of the developing society to ensure sustainability for all especially vulnerable sections of society.

Question to be answered by policy makers – Who will provide the better seeds at affordable price to poor and subsistence farmer?

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 is an attempt to create awareness about the emerging issues, opportunities and challenges due to intellectual property regime.


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