Carol Nottenburg

South‐North Trade, Intellectual Property Jurisdictions, and Freedom to Operate in Agricultural Research on Staple Crops*

A biotechnology revolution is proceeding in tandem with international proliferation of intellectual property regimes and rights. Does the intellectual property impede agricultural research conducted in, or of consequence for, developing countries? This question has important spatial dimensions that link the location of production, the pattern of international trade, and the jurisdiction of intellectual property. Our main conclusion is that the current concerns about the freedom to operate in agricultural research oriented towards food crops for the developing world are exaggerated. Rights to intellectual property are confined to the jurisdictions where they are granted, and, presently, many of the intellectual property (IP) rights for biotechnologies potentially useful to developing-country agricultural producers are valid only in developed countries. IP problems might arise in technologies destined for crops grown in developing countries unencumbered by IP restrictions, if those crops are subsequently exported to countries in which IP is likely to prevail. Thus freedom to trade is also part of the IP story. However, using international production and trade data in the 15 crops critical to food security throughout the developing world, we show that exports from developing to developed countries are generally dwarfed by production and consumption in the developing world, the value of these exports is concentrated in a few crops and a few exporting countries, and the bulk of these exports go to Western Europe. Thus for now, most LDC researchers can focus primarily on domestic IPR in determining their freedom to operate with respect to food staples.

Intellectual Property Resources for International Development in Agriculture

Scientific advances in many fields were historically treated as public goods. This was particularly true in agriculture. Universities and other public sector institutions were leaders in developing improved crop varieties that were transferred to farms through cooperative extension services in the

Accessing Other People's Technology for Non-profit Research

As patents and other forms of intellectual property become more pervasive in the next generation of biotechnologies, designing policies and practices to ensure sufficient freedom to operate (i.e., the ability to practice or use an innovation) will be crucial for non-profit research agencies, especially those intent on developing technologies destined for commercial release. Are non-profit organisations exempt from intellectual property claims? What constitutes infringement of a patent? How does a non-profit establish its freedom to operate? We address these issues in this paper and evaluate various options for accessing other people’s technologies. Options include crosslicensing agreements, research-only or cost-free licences, market segmentation strategies, mergers or joint ventures, and patent pooling or clearinghouse mechanisms. Responding creatively to the new intellectual property environment will have far reaching consequences for the future of non-profit research.

Not quite a myriad of gene patents

A new study assesses the impact of recent US Supreme Court rulings on the changing landscape of US patents claiming nucleic acids.

The evolving landscape of plant varietal rights in the United States, 1930-2008.

The types of plants being protected, by whom and by what form of varietal right, has changed markedly since the United States first enabled intellectual property protection for plant varieties in 1930.

Chapter 48 Agricultural Innovation: Investments and Incentives

Investments in R&D and agricultural innovations have been fundamental to long-term economic growth worldwide. But global resource allocation has been uneven, with some developing countries closing in on developed-world scientific capacities, others regaining ground lost over the past decade or so, but, unfortunately, many others either stalled or slipping behind. Recently, substantial shifts in the scientific basis for much of biological research have created a new and promising set of opportunities for innovation in agricultural biotechnologies. Moreover, the institutional, regulatory and, especially, intellectual property regimes that affect agricultural R&D are also undergoing rapid change, providing enhanced private incentives for applications of biotechnology in agriculture. But the nature of these developments is raising real concerns about the extent to which developing-country agriculture will be able to partake in the benefits offered by the advances in biotechnology. In this chapter we present an overview of the globally evolving structure of funding and performance of agricultural research. This establishes the special nature of agricultural research as a truly joint endeavor of North and South, and of the public and private sectors. We then sketch the economics of intellectual property protection - highlighting static and dynamic models and the effects of competition - and alternative incentives to innovate. A brief list of means that have been used or proposed for protecting intellectual property in agriculture is presented, followed by a discussion of the ongoing global evolution of the intellectual property environment and relevant institutions. Then we discuss instruments that are available for transacting intellectual property rights (IPRs), provide a quantitative view of trends in agricultural intellectual property protection worldwide, and end with a short conclusion.

Agrobacterium-Mediated Gene Transfer: A Lawyer’s Perspective

Whether or not you agree with patent protection for Agrobacterium-mediated transformation technology or for other basic platform technologies, “the times, they are a-changing”. In the United States, patents are awarded for many types of biotechnology inventions, including nucleic acid sequences, bacterium containing a vector construct, transgenic plants and methods of making transgenic plants. Both companies and non-profit institutes are affected by such patents. Here, some of the impacts of patents are discussed followed by a miniprimer on key points about patents and patent documents. In the final section, we present a patent landscape of Agrobacterium-mediated transformation of plants and discuss a number of key patents impacting research and development.