/766 /I Apull /9'K 4 Consulifthve Group on- International Agricultural Research - s.> f n...or .-the .International.4N -ciualReaihj C 41 p John i H. Bt Proessor of Law Stanford Law School and .Wolfgang E. Siebeck -. Consultant ::Washington, D.C. ISSUES IN --AGRICULTURE .. I4 9- I lqv- 4v zIEW1 Intellectual Property Issues for the International Agricultural Research Centers uert;?g cuture"- SIs an -i,,.,evolving . Wue^8=ctsltOunre'.ig an vohine g What Are the Options? i~l~ifbokltsonitopics connected tli,agrcult6ural'research and devel- tlXTh&-se ies is published by the. ctaiiait,ofjthe Consultatlve Group John H. Barton oigtIoi,na1Agricultural Research Professor of Law as Wcontribution to'informed Stanford Law School dIscuisslon' onissues that affect agrl- hiteSIThe oplinons expressed in this and se3i~ehthose of the'authors and do ,iecer',ari~eflect a consensus of Wolfgang E. Slebeck Ifft isCGIAR-system., Consultant l10 Washington, D.C. 111 nHX ISSUES IN AGRICULTURE, NO. 4 ~~~~~2O433 ~~~~~~~~Consultative Group on Intemnatlonal Agricultural Research Iii ~~~~~~~~~~~~~~~~~~~~~~ ~~~~~~~~~ ~~~~~~~~~?32895d Fax'(lL2O2P~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~... About the CGIA :: R . R g R ' R R. '.. ...............~~~~~~~~~~~~~~ aa ......a x:aa<....a... Tlhe Consultative' Group on International Agricultural Research (CGIAR) Is an informnal association of 40 public and private sector donors that supports a network of 16 CONTENTS (soon to be 17) international agricultural research centers. The Group was established In 1971.' The World Bank. the Food and Agrlcultire Organlza-' EXECUrIVE SUMMARY ...................1 tion of the United Nations (FAO). and the United Nations Development Programme (UNDP) are cosponsors of the 1. INTRODUCON ...............,.5 CGJAR. Tne Chairman of the Group is a senior ofm-ciai of . T D. the World Bank which provides the CGLAR system with a 11. PAST EXPOSURE OF THE SYSTEM TO Secretariat In Washington DC. The CGOAR Is assisted by a INTELLECTUAL PROPERTY ISSUES.6 Technical Advisory Conunittee, with a Secretariat at FAOi.. Rome. III. CHALLENGES TO CURRENT CENTER POLICY ..9 The United States, Japan, and Canada are the leading donor countries, followed closely by several European A.The Rise of Biotechnology .9 countries. Developing country members of the COIAR are 1. Facts and Promises .9 China, Brazil, India, Mexico, Nigeria, the Phillpplnes, 2. The Importance of Biotechnology for and the Republic of Korea. The annual CGIAR budget Is Center Research .......................... 11 some $US300 million. International centers supported by the COIAR are part B.The Prgvatization' of Research ........................t 1a1 of a global agricultural research system. The CGIAR fiune- 1. The Surge of Prlvate Agricultural tions as a guarantor to developing countries, ensuring that Research ..... 11 Intemational sclentlflc capacity is brought to bear on the 2. The 'Privatization" of Public Research .......... 13 problems of the world's disadvantaged peoples. 3. Agricultural Research In Developing Food productivity in developing cointries has increased Countries.14 through the combined efforts of CGiAR centers and their C.The Changing Lgal and Politcal partners In developing countries. The same efforts have Envirorhnent Legal and........al brought about a range of other ' benefits, such as Environment.15 reduced prices of food, better food dlstributlon systems, 1. Changes In National Laws In Industrial better nutrition, more rational policies, and stronger 1nsti- Countries. ......................... 15 tutlons. CGIAR centers have trained over 45.000 agricul- a. Plant Variety Protection ........................ 16 tural scientists from developing countrles over the past 20 b. Patent Protection for Plants ...................... 17 years. Many of them form the nucleus of and provide lead- c. Patenting of Varieties ........................ 18 ership to national agrlcultural research systems In their d. Patenting of Processes and Genes .. 18 own countries. ' '' e. Constraints on Breeding Activity ............... 19 Programs carried out by internatilonal centers In the f. The Role of Trade Secrecy ........................ 20 CGJAR system fall Into six broad categories: Productivity 2. The Uruguay Rounid and Trade Sanctions ... 20 Research, Management of Natural Resources, Improving the 3. Developing Country Positions ....................... 22 Policy Environment, Institution Building, Germplasm Con- servation, and Building linkages. IV. MAJOR POLICY ISSUES FOR THE CENTERS ...... 23 V1. CONCLUSIONS AND RECOMMENDATIONS ......... 39 A. Issue One: Under What Circumnstances Can ANNEX A: IN-HOUSE POLICIES AND PROCEDURES the Current Open-Door Policy be Retained? .... 24 FOR INrELLEC`1rUAL PROPErry MANACEIMENT . 43 1. Points Opposing the Open-Door Policy ......... 26 2. Points Favoring the Open-Door Policy .......... 26 A. Intellectual Property Management .43 1. Newlork Arrangements .43 B. Issue Two: Income Generation from Patenting 2. Tracking Procedures .43 and Licenslng ......... 27 3. Patent Application and UJtigation Processes .... 44 1. Points Opposing Use of Patents for Income, 4. Cost of Intellectual Property Management ....44 Generation ....... 27 2. Points Favoring Use of Patents for Income B. Staff Policies .45 Generation ....................................... 29 1. Employee Agreements .................... 45 2. Information Procedures ................... . 45 C. Issue Three: Disseminating Innovation - The Centers' Relations witlh the National C. Collaboration Within the CGIAR System . 45 Programs ..... 30 1. Points Opposing Use of Proprietary Protection ANNEX B: OVERVIEW OF PATENT for Dissemination and Marketing ................. 32 PROTECTION (1988) ................ 46 2. Points Favoring Use of Proprietary Protection for Dissemination and Marketing ................. 33 REFERENCES ..........., 50 D.Issue Four: Gaining Access to Patented Biotechnologies - How Should the Centers Structure Their Relations with Industry and Advanced Research Institutions in Industrialized Countries? ................................. 33 1. Points Opposing Network Arrangements with I Private Firms .............. 34 2. Points Favoring Network Arrangements with Prlvate Firms .............. 35 V. SPECIAL ISSUES FOR INDIVIDUAL CENTERS.....36 A. The Commnodity Centers ................................... 36 B.The Regional Centers ....................................... 37 C.TThe Livestock Centers . 37 D.Intemnational Board for Plant Genetic Resources (IBPGR) .... 38 II in Intellectual Property Issues for the International Agricultural Research Centers What Are the Options? John H. Barton Professor of Law Stanford Law School and Wolfgang E. Slebeck Consultant Washington, D.C. EXECUTIVE SUMMARY Many of the International Agricultural Research Centers are Increasingly concerned about whether they ought to protect their Innovatlons as Intellectual property, a protection they have rarely sought in the past. Three developments feed this concern: (1) The rise of bio- technology and its growing importance fof the centers' research, (2) the 'privatization' of agricultural research, meaning the increasing importance of private industry in agricultural research as well as the growing practice of public research institutions of protecting their Innova- tions against use by unauthorized third parties: and (3) the tlightening of national and intemational legislation and conventions that protect Intellectual property. This study has been commissioned by the CGLAR Secretariat, In consultaUon with the Chairman of the Center Directors Committee. Its purpose is to review whether the above concerns suggest a need to modify the current 'open-door policy" of the centers with respect to gerMplasm dlstlbution and the release of Innovations exchange. This will be particularly true for centers developed at the centers and more broadly. to evaluate working In countries that have not extended Intellectual dheveopedons ata to the centers . and,morebroady.toevaluateproperty protection to plants and biotechnology and for centers whose mandate crops have little commercial The study reviews the trends in biotechnology re- interest for Industrial country markets. search and in intellectual property law described above. It then considers the factors affecting four policy issues 3. Unsder current policy, centers should not restrict for then considers blhe f s afen and in the context osf the flow and release of unimproved germplasm including for the centers, both in general germpiasm which has been screened and characterized. They may wish to consider changing to a policy of * To what extent can the current open-door policy be safegsuarding their bargaining position by requesting a * To whatnextent can the current open-door policy be material transfer agreement to be routinely signed by institutions that will not reciprocate a center's free ex- * What Is the feasiblity of incorme generatlon from change policy. In contrast, centers may consider licensing p Whatenstheg feand nsibilty of ncometheir improved gernplasm to breeders and producers whIo patenting and licensing'? rintend to market it In industrial countries with little or * Would proprietary protection hinder or help in no additional breeding. bringing research results to tlie farmer? 4. Only rarely will intellectual property protection * What are the beneflts and risks of cooperatlng with and conrnercializatton in Industrial countries be a lu- devhatarethelopd neflts andusris ofl access to with crative option for the centers. However, centers scoring developed-nation industry to obtain research advances in areas of high commercial Interest should consider acquisition of patents In Industrial countries, not so much as defense against seeing thelr Our review leads to the following concelusions:. iinovations appropriated by third partiles (that Is better I. Thie trend wtllhn the internatlonal research done through publication) but as bargaining chips to communityhe tre iellectual propery has advanced aintai access to proprletary technologies. There might too far to be pgnored by any CtIAR center. hhe centers be cases In which a center should patent an exceptionally tool facreatone fignod byhattechnology Rcnther Theenrs s-important Invention as a source of Income' but these will increasingly find that technology they need is sub- would be rare. ject to intellectual property protection and that an effective way to disseminate their innovations will bt it will be imperative for the centers to con- private sector collaborators, often under exclusive rights. tinually gain access to new proprietary technologies of Moreover, as many developing countries are lkely to adopt potential use to developing countries, they will require or strengthen intellectual property protection over the ulnderstanding of patents and licensing: acceptance of next several years, breeders will seek protecllon also In conmercial materials subject to restricted use will also developing countries for advanced material of Importance entac l acceptance of restrictions on the free intersysten to their markets in both industrial and developing engel o materis. countries. exchange of materials. 2. Much of the activity of the centers can continue 6. Finally. each center should careftully review the without Intellectual property protection and without Institutional linkages by which Its Innovations reach the 2 breaking with the centers traditions of open scientific farner and should protect its innovations when such 3 2 raigwt h cnes rdto K : . ........................... . ......... ........... ......... . ....... .......... .. I..... . . ...................... WS. S .iSX. protection Is likely to help in marketing the Innovations Intellectual property trends affecting their to developing country farmers. mandate crops. In order to help the centers in deflning and executing 3. At least in an Initial phase, and until centers such policies, we recommend that: have buflt up sufilcient capacity to manage their Intellectual property, they should con- 1. The CGIAR should establish a set of intellec- sider the creation of a central facility to pro- tual property policies and guidelines, witllin vide basic advice and to refer centers to legal which Indiv;dual centers wvou;ld defne their owvn counC appropriate to their specfuic concerns. rules and procedures. Such a Policy State- Such a facility should also allow centers and ment should lay down the ground rules to their staffs in charge of intellectual property which the centers will adhere when structur- management to exchange information and Ing their "upstream" relations with technology experlences on patent and plant variety mat- providers and research collaborators. It might ters. During the start-up of this new activity, also sketch out the new partnerships centers centers should arrange, perhaps with the help are looking for In their -downstream' relations of other International agencies and Intellectual with breeders and the seed Industries In de- property groups, workshops to help their sci- veloping countries. The Policy Statement entists. their staffs working on intellectual should consistently reflect the position the property issues, and their colleagues fromnl Group an its ceners takeon relatd issuesnational programs to understand the basic Group an its ceners takeon relatd issuesconcepts as well as the costs and benefits (e.g., on genetic conservation and blodiversity) associated with intellectual property, and to and should therefore also serve to contain the ensure that the techrllcal aspects of the law risk that expanding intellectual property pro- not hinder their mission tection will eventually slow the flow of gernplasm. The study also Includes Annexes outlining In-house policies and procedures for Implementing a patent pro- 2. Individual centers should draw up their own gram and a tabulated overview of Intellectual property rules and procedures to provide for: protectlon In developed and developing countries. i. germplasm distribution;- 11. standard networking arrangements likely to I. INTRODUCTION be needed to bring in outside technologies and - to the extent reasonably predictable Through their research, the International Agrlcul- - the kinds of proprietary restrictions that tural Research Centers are continuously generating in- may be accepted, and of center innovations novatlons. This was true before the advent of blotech- they would consider patenting: and nology, It Is true today for biotechnological advances. TIhe breeding of high-yielding varieties of wheat and rice iii. in-house procedures for controlling propri- that marked the 'Green Revolution" generated lnnovations etary Information, employee agreements, just as do today's much broader activities of a larger relationships with patent counsel. periodic number of centers ained at sustained yields in envi- reviews of intellectual property changes in ronmentally sustainable conditions. Biotechnology has 4 host and other countries, and reviews of since added a new dimension: It permits procedures that 5 cannot be achieved through conventional breeding, like inserting a single new gene without otherwise modifying proposilon, and therefore reflecting only onl the useful- thec original geniotype or variety; and It can greatly shiorten ness of Plant breeders' rights' concluded that because of the tnic I take to chiev breeing esult ttirtigbthe breeders' exemption anchbored in the International tcne tme it takes to achieve breeding results through Union for the Protection of New Varleties of Plants (UPOVI Convention there was no reason for the centers to be Today, the centers are tncreasingly concerned about concerned about possible constraints to be lrnposed on protecting their innovations as intellectual property, a Ihe centers' access to germnplasm. And as centers moved protection they have irare:iy sought in lle pas'. Te t1reelncreaslnglv Into strale research, d there.p developments feed this concern: (1) the rise of biotech- duced less finilshed varieties, the problem would lose Its nology and its growing Importance for the centers' re- relevance. On subsequent occasions the debate was search; (2) the 'prlvatLzation' of agricultural research, deferred pending resolution of uncertainties arising from meaning the increasing Importance of private lndustry in the various endeavors to modify the UPOV Convention agricultural research as well as the growing practice of and negotiations in the General Agreement on Tarifrs public research institutions protecting their Innovations and Trade (GAIT). against use by unauthorized third parties; and (3) the tightening of national and international legislation and In 1988, the CGlAR Issued a Policy Statement on conventions that protect intellectual property. Plant Genetic Resources which espouses an open-door policy with respect to the safe maintenance of germplasm Thts study has been commissioned by the CCIAR and Its availability to crop Improvement programs. Under Secretariat, In consultation with the Chairnan of the this policy, centers distribute germplasm from their active Center Directors Coommittee. Its purpose Is to ascertain collections to any researcher who demonstrates a le- whether the above concerns suggest a need to modify the gltknate Interest; the centers make no attempt to exer- current 'open-door policy" of the centers with respect to cJse control over subsequent commercial use of such germplasm distrtbution and the release of Innovations germplast. developed at the centers, and, more broadly, to evaluate the options available to the centers. The 1989 Biotechnology Study cosponsored by the World Bank, the International Service for National Ag- The authors gratefully acknowledge the helpful ricultural Research (ISNAR), the Australian Centre for comments they received on an earlier version of this International Agricultural Research (ACIAR). and the paper from Mike Arnold, Mike Collinson, John Dodds, Australian International Development Assi§tance Bureau Steve Goode, Ross Gray, Don Plucknett, Tony Pritchard, (AIDAB)2 suggested that centers should actively seek Roger Rowe, Jim Ryan. Dick van Sloten, Alexander von der Osten, and Kerri Wright-Platais. 4In tLis paper, we use the term 'patent to refer to the regular or utility patent systcm. We use (he terms 'plant variety protection' and plant breeders' tights' interchangeably. Both denote protecuon of the right of tile breeder to market a new variety which is distinct, II, PAST EXOSURE OF THE SYSTEM TO INTELEMAL uniform, and stable, and generally Include both sexually and asexu- PROPERTY ISSL ally propagated varieties. In the United States, the nomenclature has developed differently, as asexually propagated varictics arc protected by plant patents,' while sexually propagated varictles are protected The centers and the CGIAR have been slow In ad- by 'plant variety protcetion' (see also discussion In The Cll."aging dressing Intellectual property concerns. A review by TAC ILegal and political Environment'). 6 in 1982, well before plant patenting became an accepted 'C.J. Persicy. Beyond Mendel's Garden: ERlotechnology In the Service of World Agiceulture. C.A.B. international 1990. Pages 105,106. 7 patents for thelr significant discoveries, either to control prolectlon In order to control the su1bsequent use of the their use by others, or to earn royalties. Patent owner- Innovatlon Iwhat they viewed as "defensive patenting"), ship would be critical in negotiating collaborative ar- one center sawt potentlal for generating revenue, whlle rangements with prlvate biotechnology companies. The one center lntended to have a private sector collaborator study also saw a role for international development Itake over product development and marketing. agencies and for the centers to negotiate access to tech- nology on behalf of small countries or groups of small countres iht othrwise ouid oi hae acees to ew t Pressure has recenlly mounted on the CGLA.R and technologies. The study cautioned, however, that intel- l etr,fo lhngvmn orso oecn lectual property protection for germplasm not be ters and firom some donors, to define policies for the strengthened to the point where research Is inhibited. CGIAR on Intellectual property issues. The Netherlands' Foreign Ministry recently cormlis- In November 1990. ICRISAT and the CGIAR Secre- sioned a study on She Impact of Intellectual Property tariat cosponsored a workshop on intellectual property Protection in Biotechnology and Plant Breeding on De- issues and their re]evance to the centers. lRepresenta- veloplng Countries."3 While proposing a cautious ap- lives of several centers and a number of experts attended. proach for developing countries In adoplting itrlellectual The workshop's report argued that the institutional and property protection, It suggested a need for the Inter-leaenromttnwclthcnesopaehs national centers to seek patent protection In order to legalgednionen iatng wahich n ta the centersoprt hase the appropriation of publicly funded innovation by third no options but to adJust to the new environment. The parties; and eventually to seek earnlngs from royalties In report provided detailed suggestions on how centers might order to compensate for shrinking public funding. mannaex A).1cul tprlsllR 99;as e To date, few centers have been exp)osed to Intellec- tual property Issues. In response to a query by the CGIAR Chalrman in November 1989, only flve centers Indicated III, CHALLENGES TO CURRENT CENTER POLICYr that they had experience with managing Intellectual property. Two centers had patented farm equipment or A. The Rise of Biotechnology fertilizer preparations: one shared a patent wlth a col- laborating Institution In a developed country: the other 1. Facts and Promilses two had filed for patent protection, one for a variety, the other for a biotechnologically developed vaccine. One The breeding techniques which have been respon- center is exploring the possibililty Of fililng, Jointly with a slble for the advances made under the iGreepn Revolu- public agricultural agency in a developed country, for tion" wlll not be sumelent to feed the world's growing plant variety protection fior one of its varieties, population In the next century. According to current Theratonaesprolde bythse enlrs orseeking estimates, food production in developing countries will ThoertionadlTesrovide byohes centersha le for paethave to double In the next 25 years to keep pace with . . f e populaton growth (IPRI, 198) Given the finite avail- IStudy commnissioned by the [Direc:torate General Intcrnatlonal Coop- ability of land and water, future Increases in agricultural eration (DCIS), Ministry of Foreign Affalrs, The llague, Netherlands. production wrill have to come fromn new technologies t}~at 8 January 1991 (mirneo). .9 l ~ ~ ~ ~ ~ ~ ~ ~ . . . .. .. . . .. . . .. ... . . . .... . . . . . enhnceprouctrlt. Botehnoogyis widely seen as 2. The Importance Of Biotechno1ogy for the technology, and perhaps the only one, that can launchCetrRsac another "Green Revolution." A move away from hands-on applied research to- ward strategic research Is well underway ln most cen- Developments In biotechnology over the past decade ters. It has been aided by two factors: First, at a time have often been accompanled by exaggerated claims of when Increased crop yields hlave decreased the Immediate their potential Impact on agricultural production (World danger of famine, the cenlers have been able to take a Bank~, 1990, p. 14). Among the few products about to longer perspective. Second, In many developing countries reach the market which promise a substantial Imupact on national research Institutions have built the capaclty to production are growth inducers for animals (sornatropln) fiish and adapt intermediate materlal provided by the and some disease controlling vaccines (LXesser, 1990, p. centers to local conditions. 65). Cautious estimnates on future yield Increases due to biotechnology by the Offce of Technology Assessment of In this context, most centers have embarked on the U.S Congress In 1986 (OTA, 1986) expect productlv- biotechnology programs. However, with annual biotech- Ity gains to be two to four times hlgher than those that nology expenditure In 1990 estimataed at $;14.5 millilon of could e acheved lth coventlnal beedtngtechnques.which about half was for anLrmal biotechnology (Colllnson couldbe acievedwithconvetiona breding echniues.and Wright-Platais, 1991, p. 9), these programs appear A variety of specific technologies have arisen under modest. They are likely to Increase In future as some the general name of new biotechnologles. The most wldely centers, in order to maintain their role as centers Of used, tissue culture, is itself a group of technologies excellence and facililtate transfer of technology to devel- which1 can be used to eliminate viruses from organisms, oping countries, will move closer to the leading edge Of to shorten breeding and distribution times for new cul- biolechnology to match advanced industry and unlver- tivars, to provide accelerated processes Of selection, new sity laboratories In the Industrial countries In research sources Of genetic variationl, and new tech1niques of con- quality and direction: while other centers who under- serving gernupiasm. Breedinlg can also be accelerated stanld their function primarily as that Of a catalyst, through genetic markers and through use Of gene maps stimnulating and supportlng research at other Institutlons, based o restretlon ragmentlengthpolymophlsmsand adapting It for the needs of developing countries, (RFLsP). Monoclonal antibodies can assist ln detecting biotehnlogya rhesearch capcit h narde to fulfdill thatrow the presence of specific proteins. boehooyrsac aalyI re oflllla function. What appears to be most revolutlonlary In. the near future Is the ablitLy to manipulate DNA to transfer spe- I3.The "Privatization" of Research cific genes from almost any species to almost any other species. The recombinant DNA technique permits. for 1. The Surge of Private Agricultural Research example, the development of plants that produce an insecticide based on a bacterial gene Bacillus tlit*irls8. The rise Of biotechnology has led to a sharp Increase In1 the long run, even these acconipllshuiuientls mlay 1Wc In agricliurlllal researchl acltivity In private industry in1 thec dwarfed by approaches based on the Insights gainedz from developed world as well as a shift of research resources using these new techniques, e.g. cloning, and researchl from the public to the private sector. Worldwide spending 10 on plant and anlmal physiology, on biotechnology-based R&^D In all sectors including 11 10'on;plant and animal physiology. .. . . .....~~~~~~~~~~~~~~~~~~~~~~~~. . :, , - g j =E .........~~~~~....... .0W S .gW ........... .................................. mW pharmaceutical and chemical industries amounted to $4 The distinction has been further blurred by the Increas- billion In 1985 of whiclh two tlhirds occurred in the pri- Ing propensity of public researchers to seek protection vate sector. Agricultural research accounted for $900 for, and to control the commercial exploitation of, their million of which $550 million was expended In the pri- Inventions, vate and $350 million in the public sector (James and Persley, 1990, p. 371), 2. The 'Privatization' of Public Research Two lactors have been primarily responsible for (tis Traditionally, the patent system's emphasis on surge in private research activity. One is the political monopoly and monetary gain has been seen as incom- drive observed in many industrial countries to allocate a patible with the ethos of free availability of information larger role to the private sector in areas that have tradi- in public research, particularly In areas of direct concem tionally been considered as government responsibility. to human welfare such as medicine and food. Over the This includes education, health care, and research. In last fifty years, however, U.S. universities have debated particular. agricultural research used to be conducted the pros and cons of monetary gains to be derived, primarily In public institutions and laboratories, associ- particularly from biology and biotechnology research. ated with universities as In the United States, or directly 'Biology has been transformned, and so have the biologists. sponsored by governments as in Europe. Changing policy Virtually overnight, academic biologists never before in- perceptions have led to reduced funding of these activi- volved with Industry have become consultants, advisors, ties from public sources. founders, equity holders, and contractors of new blo- technology flrms or new divisions of multinational corpo- Another factor which has boosted private research rations. Patenting has become the norm In unilversity activity is economic opportunity, shaped by the strength- biology departments', (Weiner, 1986, p. 42). Simllar ened protection of intellectual property in agriculture- developments can be observed at European universitles. related research. As discussed later in this paper, pro- Concers persist that discoveries originally funded tection of new varieties and the appropriation of returns from public moneys are patented and c e ploited by indi- from inventive breeding activity became available in many viduals; that resources are diverted from basic researcIh countries only in the last several decades, while the to product development and managemerltI and that the possibility of protecting new life forms through patents holding and commercial exploitation of patents, and was added through case law In the United States In the perhaps even more the suing of patent infringers can 1980s. Appropriability of the returns to research Is seen only tarnish the reputation and credibillty of a public by Industry as a key condition for larger Investment In research system and affect Its continued access to public R&D, and, in some Industries, has proven to be a strong funds. Despite all these problems, the prevailing mood in contributing factor (Evenson, 1990, p. 39). government, industry, and university biotechnology circles is to accept the new status quo" (Weiner, 1986, p. 43). For a while, this development suggested a new di- vision of labor between public and private research In Most U.S. universities have set up Intellectual prop- agriculture, with public systems emphasizing basic and cies such as Researct csorphatvie engaged outsitde agen strategic research, and industry attending to applied and and defend their interests. As they have become sensitive adaptive research. However, with Industry Increasingly to the value of their biological materials (e.g., biologically 12 engaged in basic research, this distinction no longer holds. specific reagents, cell lines, or specific organisms), many 13 SFa310 063gU2g | gg >l} ,03ggga:::-}Sg g g,.E+g, q 0}go,............. gh . ....... routinely place restrictions on the availability of tlhese. multiplication. Similarly, as discussed later In this re- materials. These restrilctions amount to a form of Intel- port, the International centers may encourage the estab- lectual property protection by dinit of conlract and trade lishment of a local breeding and seed industry in their secrecy. Thus, there has been a change in the ways in client countries. As the introduction of plant variety whech researchers and research Insttutlons relate to one protection may advance such a process, several developing another. countries are considering the introduction of protection. 3. Agricultural Research in Developing Countries C.The Changing Legal and Politcal EnvLronmPent Developing countries generally underinvest In agri- 1. Changes In National Laws in Industrial cultural research, and most of it is conducted in the Countries public sector (Evenson, 1990, pp. 36-38). Even seed multiplication is a public sector activity in many of them; Intellectual property protection for plants and seeds the production of hybrid seed being a notable exception has been steadily expanding over the last decades. Since in some countries.4 the 1960s, plant varieties have been protected through plant breeders' rights In many Industrial countries. With The underfundlng of agricultural research reflects the more recent accessions of Australia, Canada, Hun- the low priority generally given to research In developing gary, Japan, and Poland, the membership of the Inter- countries: and the lack of an adequate research capacity national Convention for the Protection of New Varieties and, in particular, of trained scientists and research staff. (UPOV Convention) has risen to twenty countries. A The lack of private sector research can be ascribed to the revision of the Convention has been negotiated in March modest role allowed to that sector in many developing 1991 (see Plant Variety Protection). countries. The absence of some form of intellectual property protection may also have discouraged private Concurrently, there Is a tendency to extend regular R&D investment although developing country needs in patent protection to plants and plant material. This this respect may differ from those of developed countries began In the United States with a 1985 Board of Patent (Evenson, 1990, p. 46). Appeals decision that permitted plant varieties to be protected under the regular patent system. In Europe, Developing countries are Increasingly attempting to which has not followed the U.S. example with respect to liberalize their economies and encourage a larger role by varieties, Industry pressures are strong to do so and the private inlitative. Private adaptive research and breeding European Communities have been working on a draft may develop. It will be helped by a growing interest of I directive that would permlt patenting of certain life forms. breeders from developed countries for wliom developinig Several farm lobbies are opposing this proposal, while a countries are markets of increasing importance at a time desire to incorporate the results of other international when seed markets In developed countries are stagniant. negotiations currently underway is holding up Its These firms will need local partners for testing and adoption. 4The concentration of private activity in the pmduction of seed for The scope of currently available protection, and hybrid varieUcs is explained by a natural phenomenon: The crop from proposas under negotiation for Its modillcation are dis- a hybrid variety cannot be reused as seed (at least not without sig- cuss un ne fo raits modific tare os nificant reduction In yield); this oifers built-In Intellectual property cussed in the followlng paragraphs. Some details on protection as long as the breeder guards the identity of or access to protecton available In indvdual countries and member- 14 the parental lines used' (Lesser, 1990, p. 62). ........... ..........~~ ~~~ ~~~ ~~~ ~~ ~~~~~ ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ a. Plant Variety Protection revised convention, 'essentially derived varieties may be obtained for example by the selection of a natural or Under 'traditional' plant variety protection, also Induced mutant, or of a somaclonal variant, the selec- knowni as plant breeders' riglhts (PBR). available in the tion of a variant individual from plants of the lnitial majority of developed countries and being considered In variety, backerossing, or transformation by genetic engi- some developing countries, a variety can be protected if i neering." Consequently, a breeder who Inserts a single it is distinct, uniform, and stable. Protection generally new disease resistant gene Into a variety protected by a In1lIpo that Ihe owner o the var'e' can keep o l plant breeders' right will have to obtain the original right from selling the variety commercially as seed. The farmer, | holder's permission before marketing it. however, can typically reuse a harvested crop as seed without violating the owners rights.s5A second important b. Patent ProtecUon for Plants exemption permitted under the UPOV Convention allows use of the protected variety In a breeding program without Over the last decade, some countries have been permission of the owner. moving to also extend 'regular' or utility patent protec- Although these righits arise unider national laws, the tion to plants and plant components. As noted above, UPOV Convention sets internationally agreed upon stan- the Uritted States has gone furthest in this direction. dards for national laws. A diplomatic conference held In Europe has not followed the U.S. example: a provision in March 1991 revised that conventUon: the revisions will the European Patent Convention prohibits the grantling bind only those countries that ratify them. Among the of patents to 'plant or animal varieties or essentlally changes agreed at the conference are provisions which biological processes for the production of plants or ani- make the farmers' right to reuse a harvested crop for mals." A provision In the UPOV Convention that prohlb- new planting optional, that is subject to national law Its the protection of 'one and the same botanical genus which need not grant the exemption. Another important or species' through both regular and PBR protection was change introduces the concept of the 'essentially derived modified In 1978 to perrnit some countries to join while variety"" which cannot be produced or marketed without retaining double protection systems - the modification the consent of the original breeder. In the words of the l facilitated U.S. accession to UPOV - and entirely dropped in the recent revision of the convention. °In the United States, a farter can also sell up to half of the crop as In addition, revisions to the basic global patent seed. These 'brown-bag sales" have severely eroded the protecUon of conventiton, the Paris Convention, whch Is the regular wheat varieties. cneto,tePrsCneto,wihi h eua wheat, vnarles Draft, ntemational Cowvention for the Protection ofpatent analogue of the UPOV Convention, were consid- .UPOV, Flnal Draft, International Comvention for the Protection or ered at a diplomatic conference In June 1991. Negotia- New Varieties of Plants of December 2, 1961 as Revised at Geneva onterns are to cont in9.he are two aegotive November 10, 1972, on October 23. 1978, and on March 19, 1991 tlons are to continue In 1992. There are two altematlves (Doc. DC/91/138). An 'essentially derived variety" is defined as one proposed for the "Fields of Technology' article of this that '(1) ... is predominantly derived from the Initial va,lety ... while convention. One alternative would follow the language of retaining the expression of the essential characteristics that rcsult the European Patent Convention and exclude patents on from the genotype ... of the initial variety, (it) ... is clearly distinguish- able frorn the original variety and (iii) except for the differences which j "plant or animal varieties or essentially biological pro- result from the act of derivaUon, conforms to the initial variety In the cesses for the production of plants or anirals," and would expression of the essential characteristics that result from the geno- also permit countries to exclude certain types of technol- 17 16 type ... of the initial variety." .. ..... .................. ~ ~ ~ ~ ~ ~ ..*..*,..*, *. *~ ogy from being patented. The other alternative would specis sufciently similar that they could be transformed require that patents be avaliable for Inventions in all In essentially the same way) that Incorporate the trans- * flld of technology.7[ferred gene. In essence, the Innovator is protecting a flels of te l.' "proprietary gene." The scope of the protection involved * c. Patenting of Varieties | Is unclear: it would certainly include the right to prohibit anothier flrm from selling seed of the same host species In some patents obtained by U.S. plant breeding containing the same (proprietary) gene, no matter how flrms, speciflc varieUes themselves have been protected I that gene had been acquired. In general, for the in- under regular patent law.8 Although the exact Implica- novation to be adequately novel to meet patentability tions of such a patent have not yet been clarified In the I criteria, the gene involved has itself to be novel, I.e., not courts, the patent may authorize its holder to restrict I found In nature, or be transferred Into a place in whlch use of the patented plant for breeding purposes. It may It is not found In nature. It should not be possible to also permit the holder to restrlct farrners' reuse of the obtain a patent on a natural gene as found In Its host crop for new plantlng. ~~~~~~~~or in other ways that it occurs in nature. crop for new planting. d. Patenting of Processes and Genes e. Constraints on Breeding Activity The more innovative aspect of the new patent practice T he question of use of protected varieties In a is its protection of novel processes that have been used breeding program is a point of special Importance that Is in genetic engineering or of novel features that have been still unclear. The proposed European directive on blo- genetically engineered Into an organism. It is being technological patenting provides for a (paid) compulsory adopted at least In part by one developing country: Mexico license to permnit certain uses of a protected variety as changed Its law in 1991 to allow patents on blotechno- I breeding material for another varlety.9 The current trend logical processes for obtaining products such as pesti- of International dlscussions, however, is to expand the cides but not on genetic material itself. Alternatively, In use of protected material in a breeding program, coupled a number of countries, an Innovator may patent a plant ,wit strong rights to block marketing of the final breedinrg ncorporating a gene taken from another species, claim- product If It comes within the scope of the IniUal patent. ing under the patent all plants of the host species (or of Under these circumstances, commercial Incentives - ing under the patent all plants of the host species (or of rather than a formal compulsory license procedure - will normally lead to a negotiated lIcense,omong the two lWorld intellectual Property Organization (WIPO). She 'Basic Proposal' breeders. for the Treaty and the Regulations." Diplomatic conference for the Conclusion of a Treaty Supplementing the Parts Conventuon as Far as In addition, most countries' patent laws contain an Patcnts are Conecered, PLT/DC/3. Deember 21. 1990. experimental use exception that might allow for some See, e.g., U.S. Patent 4,812,600 of March 4. 1989, issued to Stailey use In a breeding program. In the United States, how- Jensen and Nortnan Wilitams and assigned to Pioneer III-Bred Inter- ever, this experimental use exception is, in relevant national, covering an Inbred co-n line. (There are mnany other such contexts, defined by case law and not by statute, and Is patents.) The abstract describes the patent as follows: 'According to defned in a way likely to be restricted to academic use. the Invention, there is provided a novel Inbred corn line, designated PHK29. This Invention thus relates to the seed of inbred corn line Even though other countries use a broader exemption, PIIK29, to the plants of inbred com line PlIK29, and to methods for producing a corn plant produced by crossing the Inbred line PIIK29 I with Itself or another corn line. this Invention further relates to 'Coziinlssion of the European Communities. Proposal for a Council lhybrid corn seeds and plants produced by crossing the Inbred line Directive on the Legal Protection of Blotechnological Inventions (17 18 PHIK29 with another com line.' Ocober 1988). 19 they may still lmilt It signiflcantly. for example, by per- substantial liberalization of intemational trade as well as mitting experimentation on a patented Invention but not to set new global nomis with respect to a number of experimentation with the patented Invention for another areas not previously covered under the General Agree- purpose (presumably including improvemenit of the In- meiit on Tariffs and Trade (GATfO, Including agriculture, vention). intellectual property, foreign investment regulations, and trade In services. It was to have been completed by the end of 1990, but negotiations stalled over the Issue of Although the law is not changing very rapidly, the reduucing agriculturai support in some industrial coun- great importance of trade secrecy In biotechnology de- I tries. Currently, new compromise arrangements are being serves to be noted. Trade secrecy is the form of Intel- l discussed. lectual property protection based on physical and con- tractual control over materials and information. Such If the negotiations succeed, it Is almost certain that information, if it 'derives Independent econornc value they will Include Intellectual property provisions as part ... from not being generally known," and 'is the subject of a "package deal" whlicl participants can only accept or of efforts that are reasonable under the circumstances to decline In whole. Developing countries originally resisted maintain Its secrecy,"'° Is protected against theft in many negotiations of Intellectual property Issues In these nego- nations - but not against copying based on materials tiations but are llkely to accept the new rules In return and information that is publicly available. For example, for Improved access to developed country markets for the parental lines for hybrids or certain reagents or procedures used in genetic manipulation may be protected such Items as agricultural products and textlles. by trade secrecy rather than patent or plant variety protectlion. When other forns of intellectual property These rules may include provisions requiring na- protection are unavailable, many firms will seek to pro- I tlons to protect trade secrets. Its biotechnology provisions tect their technology through trade secrecy. are among the least agreed parts of what Is otherwise a broadly agreed framework. The final code may require 2. The Uruguay Round and Trade Sanctions countries to provide for the protection of plant varieties by either patents or a sul generis system such as plant The diplomatic conferences just discussed will lead, breeders' rights. This latter approach would reflect a at most, to proposed modiflcations of existing conventions. compromise not only between the developed and the and countries will be free to accept or reject those developing countries but also between theUnilted States modifications. By contrast, current multilateral nego- and the European Cormunities. The former would like tiations in the Uruguay Round If successful are likely to any manmade Invention Including blotechnologically force all countries negotiating in this rouind, Including manilpulated plants, to be patentable (save for inventions developing countries, to protect Intellectual property in that violate the public order). The latter would prefer to the plant kingdom through either patents or plant permit plant variety protection and to deny patent pro- breeders rights. tection to plant varieties and animals. The Uruguay Round of Multilateral Trade Negotia- I Flnally, It should be noted that the United States tions, whlich began In September 1986 with the partici- i I pation of some 108 countries, Is Intended to achieve lhas used trade sanctions to pressure other countries Into strengthenlng their intellectual property systems. 20 "0Unifornm Trade Secrets Act. One Interest served by the proposed international code is 21 to restrict such unilateral action and subject it to Inter- to restrict access to their germplasm, seeing It as a national review. Should tie Uruguay Round agreeynclt bargaining chip with which to gain increased fundirig fallt unlateral trade retaliaton would be lgkely to return. and access to blotechnologies. hlis Is the basis of the fail, unilateral trade retaliation would be likely t.o return. FAO Undertaking" and its 1989 Agreed Interpretations, defining Farmers Rights as a right to international fund- 3. Developing Country Positions Ing in return for the germplasm developed by farmers At this point, a number of developing countries have over the centuries. 1 "Is claim is also at the base of modiied lanbreder' rights systems. None., however. recent proposals by countries grouped in the Souulihrn modified plant breeders rXhts systems. None however Africa Development Coordinating Conference (SADCC) to has a system of the type urged by UPOV and none, to withdraw from the Undertaking,3. by the U.N. Economic our knowledge. has granted regular patent protection on Commisslon for Latin Armerica and the Caribbean to hold plants or seeds. Many developtng countries explicitly blodiversity resources as a "tradable good."'4 and in the exclude plants and seeds from patent protection (see terms for access to genetic resources proposed in the Annex B). current negotiation of a Blodiversity Convention. These claims will further blur the distinction - already difficult Even in the absence of a Uruguay Round agreement to maintain - between unirnproved germplasm, for which -and a fortiori if there is such an agreement - this a scientiflc free-flow regime should be the rule, and situation Is likely to change substantially over the next Inmproved germplasm, for some of which an intellectual decade. A large number of developing countries are property-based commercial regime could be appropriate. considering adoption of a plant breeders' rights system: the UPOV secretariat anticipates a rapid increase In IV. MAJOR POLICY ISSUES FOR THE CENTERS membership during the decade and points to at least six developing countries regarded as likely to join, regardless The preceding discussion has pointed to several of the outcome of the Uruguay Round. trends and developments in the institutional and legal Thius developing countries aippear to be dtroppinig einvironment In which tlhe international centers work. In Thei traditional doubtscaboutlthe valy to bitellectual response to these changes, some centers are adjusting thielr traditional doubts about lhe validity Of itnlellectua ,the ways in which they structure their collaboration with property protection. This move certainly reflects trade advanced research institutions - both public and prl- pressures, but also a recognition that the Introduction of plant breeders' rights in the 1960s in advanced coun- -_., tries sparked an increase in private breeding activity. AS "Resolution 8/83 of the Twenty-Second Session of the FAQ Confer- indigenous Industries are beginning to lobby for protec- ence, Rome. 5-23 November 1983. tion, some developing countries hope that such protec- '2Resoiutlon 5/89. Twenty-Ffth Session of the FAO Conference, Rome. tlion might similarly create or strengthen sorely needed NovuUn 1989, private breeding and seed production capacity to supple- 11-29 November 1989. ment public sector activity, currently often underfunded "Annuai Progress Report, Sector of Agricultural Research and Train- or poorly managed, and that regular patents wlll en- Ing 1989-90, Submitted by the Government of Botswana. June 1990. courage a biotechnology industry. 'T"Blodiversity should be defined as a scarce resource and should conisequently be assigned a price whichi reflects its opportuntty cost At the same tirrie, developing countries are recog- in both spatial and temporal terms.c United Nations. Economic Com- nizing that the global moves toward biotechnology and mission for Latin America and the Caribbean, 1991. Sustainable toward Intellectual property protection place increased Development Changng Production Pattems, Socia Equity and the 22 value on their gerrnplasm resources and are threatening Envlrnernnt, Santiago, p. 128. 23 vate- In developed countries. Will their other activities into a cultlvar, it can, by publication, keep others from such as their cooperation with national programs be patenling that gene for use In that species. But unless affected as well? And will othler centers have to follow the center did so first and published the fact, a firm that stilt? modifled the gene might be able to patent the use of the modified gene In a number of species. And If the center of course the Interests of Individual centers differ, IIdentilled the gene In a wtld relative while the firm used and we will review some of these differences In the sec- genetic engineering techniques to transfer it to a primnary tion entitled Special 3sue3 for Indidual Centers. ,cultvar, the f m.........ht be able to patent it use even i. I-lowever, four policy Issues are common to all- centers the primary cultivar. In such situations -and there facing this changed environment. One is defining the may be others like them -a center miHght seek patent areas In which It Is possible to continue the traditional coverage In order to protect Its own access -and that regimne Of free academic-style exchange. A second con- of other centers and national programs -to the gene cerns the commercial exploitation of center inventions as (and subsequent Improvements mnade to that gene). a way to obtain revenues. A third reviews possible modifications In the centers' relations with their partner Even In the realm of advanced biotechnology, the Inslitutions In developing countries. And the last looks Increasing adoption of patenting practices need not, of at how centers might structure their cooperaUion with Itself, render a free exchange strategy obsolete as long as private finns and advanced research Institutions when there are countries which do not protect such patents. accepting the intellectual property consequences In order Th2e scope Of patent protectlon Is (almostJ strictly terrlto- to gain access to technology of potential benefit to de- rial. In other words, If a gene has been patented In veloplng world agrlculture. country A and not In country B., there is absolutely no Illegality involved ln uslng the gene In country B. The A. Issue One: Under What Circumstances Can Imnportant impllcation Is that scientists and breeders can the Current Open-Door Policy be Retained? work at ease In developing countries which do not pro- vide Intellectual property protection In the life form area; Where possible, and at least for part of their op- they do not need, In the first Instance, to be concerned erations, centers will want to avoid the comnplications of abu th osblt httemtraste r okn proprletary rights protection, In keeping with traditionalabuthposllytathemerlshyaewrkn scientific procedures which envision a sequence of ad- withl are patented In developed countries. The most imn- vances based on the ready exchange of research mate- portant exception -beyond that Involved In mnaintaining rials, information and Ideas, centers would maintain their good relations with developed world scientific collabora- materials In the public domain, work with materials they tors- Is that most countries are barring the Import of can obtain without restrictions, and distribute their products made with processes that would have violated products without restrictions, a patent had the processes been conducted In the Irn- porting country. This will be an important Issue for cer- Under this scenario, centers would continue to taln exports to Industrila countries such as cut flowers: publilsh their Inventions. This puts an innovation In the i t will not be an Issue for food commodlties traded within pubilc domain, and, generallyJ, keeps others from ap- orangdvlpgcutesotrtclguhptn. propriatlng and patenting. Due to ambiguities In U.S. oraogdvlpn!onre o rtcigsc aet law, publishing In the United States may not always Discretion to deny Intellectual property protection, suffce. For example, If a center finds an Important gene or to oller only very limited protection, would, of course, 24 with disease resistance and transfers it from a microbe be narrowed as a result of a successful Uruguay Round 25 st ich dsastei cooeslstinc witd tratsesIona progrm s am be paentngroe tat gen freusel In tha spuccessfu Urugua Runless i~~~afce swl?Adwl tircneslaet olo h etrdds is n ulse h at lmta of multilateral trade negotiations. In Its wake, should however, they may hesitate to make their material avail- host cotntries adopt intellectual property protecloti for able If they fear that others will secure proprietary rights plants anid plant varieties, the risk will greatly increase on the material and proflt frorn It. It may tlhus lessen that materials centers use are protected or that materi- the perils of loss of access to germplasm, a loss which als they develop will be used in protected varieties by would almost certainly slow Increases in agricultural others. At the minimum, this will require stepped-up productivity and probably harm the developing world more vigilance on the part of the centers. than the developed world. In determining when to maintain the free exchange/ B. Issue Two: Income Generation from Patenting and no-restrictions policy the centers ought to take Into ac- Licensing count the following aspects: When should centers follow the example of a number I. Points Opposing the Open-Door Policy of universities In Industrial countries and seek royalties from their innovations? When should they, for example, take out intellectual property rights In developed coun- if centers pursue an open-door polcy wlithout corn- tries and license these rights to firns in these countries promise they are likely to find themselves losing access while making their materials freely available witllin the to leading technology. Increasingly, important technolo- developing world. This would ultknately provide additional gies will be proprietary and will be made available to the resources for the centers which could be used to fund centers only if the centers promilse to respect the rel- incremental research activity at the centers or at national evant propriletary rights In the materials supplied. Oc- programs. National agricultural research services could casionally, proprietary rights holders will be willing to follow a similar course, by asking the centers to license make their materials available for free use in a develop- or assign to them exclusive rights which they would ing country while requiring a commitment to protect their commercially exploit or, In turn, franchise to private firms. developed country markets. However, with Increasing globalization of seed markets and the growing Impor- Wlhen assessing whether revenue generation is a tance of developing country markets, such unsemlshness worthwhile objective, one will have to keep the following might wane. aspects in mind: Another concern of an open-door policy is that cen- 1. Points Opposing Use Of Patents for Income ters may forego the use of more effective conduits to Generaton bring their improved material to the farmers. In fact, as seed distribution In a number of developing countries Is donors t xlghtt t fundeng Moreover, aso s dev been a privatized, an effective way to bring a new variety to the concern for universlties in the United States that have farmer may well be through cooperation with private firms adopted this strategy, research programs might shift which, however, will regard proprietary varieties as more toward market-oriented research at the expense of marketable than unprotected varieties (see Issue Three). strategic research. 2. Points Favorilng the Open-Door Policy There are also questions with respect to exchange of An open-door policy Is, of course, least likely to materials and access to germplasm. A policy aimed at 26 create tensions with countries which supply germplasm, maximizing revenue from patenting would InvarIably 27 create incentlves against sharing of germplasm between impose restrictions on the exchange of germptasm, and the centers and research Institutions with whichl they certainly with their traditional partner organizations In collaborate. It would also reinforce the reluctance of developing countries. When devising such policies, developing countries holding unimproved germplasm to centers should remember that they hold these materials make that material available. Both the centers and the In trust and be mindful of the diplomacy that surrounded supplying countries would place restrictions on the corn- the 1989 FAO Undertaking on Plant Genetic Resources mercial use of genetic materials .supplied to othler In- and led to the understanding that unimproved materials stltutlons. InI the extreme, this could lead to a situaton, should be freely exchanged while improved materials could where centers primarily supply relatively unimproved reasonably be subJect to proprietary rights. germplasm and, in essence, become paid conduits for the transfer Of materials from developing to developed The situation may be viewed differently for material countries. that has been Improved Ihrough conventional breeding methods, or biotechnologlcaOly, and for which It can obtain In this context, It should be noted that unimproved protection. Particularly, when a center holds improved germplasm cannot be protected by patents because It Is material whilch can be sold commuercially In industrlal not novel. Screening and characterizing for traits does country markets with lttle or no additional Improvement, not change its quality as unimproved material and a center may want to license the germplasm against therefore does not render It patentable. Yet, some ad- compensation. Such compensation should reflect the vanced research Institutions In developed countries use i commercial value of the material to the buyer. It should, their physical ownership Of genetic materials for gaining of course, not be sought If other arrangements can be returns from such materalr they hold. Thley will release worked out (e.g., exchange of material or provlsion Of It only against a commitment according to which a re- laboratory places for scientists from developing coun- clplent agrees to share returns should the materlal, or etriles, to mention but a few). any material derived rom It, turn out to have commercial c value. j2. Points Favoring Use of Patents for Income Generation We do not believe that centers should emulate this l practice. However, iln thelr relations wth advanced re- The advantage of this approach is that It would search institutions and priate industry that requlre t open a new source of funding for the centetrs. But how coamltments of the kind described, centers may wlsh to much will It bring In? If the experience Of some maJor consider usIng unimproved screened and characterized U.S. unlversties Is a guide, returns from patentilng would material as a bargainilg chip by equally Insisting on a be modest. We understand that these universities expect commitment that returns on commercial use of Its to find one patentable Invention for every $1 millilon to germplasm be shared. In order to keep such negotiaitng $2 million of research expenditure. In steady state, they optlons open a center would probably have to Inslst that net about one percent of their research bufget from recipients of Its unimproved material routinely sign a royalties after covering the cost of intellectual property material transfer agreement according to which the re- management Including litigation. To this should be added clplent cannot exploit the germplasm commercially with- an amountt-l which seems to vary considerably from out the prior consent ofthle center. It may also require one university o another - of outrght research grants this under its publely announced germplasm dlstrlbu- c that industry provides under cooperation agreenentts. tion policy. Centers then have the dilscreion lo waive wIn no case would tl be realsltc tlo conclude, however, 28 such requirement for research institutions which do not that royalties will make a critical contribution to a re- 29 *iS,:>S SSSS..,XSSS.. ... . ......... ... ............................S :: SS .SS SSS::SS,SSgW search budget, or signflicantly offset slumps In public a broader choice of varieties. And as some argue, com- fundtng. petition would also benefit the national programs; 5 It is, of course, equally Important that public sector programs C. Issue Three: Disseminating Innovation - The remain to deal with the needs of poorer farmners and to Centers Relations with the National Programs protect against the risks of monopoly. The advent of biotechnology Is leading to a redis- Some developing countries have traditionally, or over tribution of roles played by the respective actors In the a lon" time, followed a pol]cy of controllng seed Lmports, international research community: the centers, national exports, breeding and production. Often only the min- programs, and industry in both developed and develop- Istry of agriculture, or another public agency or enterprise. ing countries. As stated earlier, in developed countries, Is authorized to engage In these activities. In other de- industry has staked out a proominent role In biotechnology veloping countries such policies are gradually being re- research due to the fact that Intellectual property law scinded, as these countries are trying to assign a larger protects its Inventions, allowing private industry to capture role to the private sector. In most of these countries - the returns: while limited public funding has constrained according to the memorandum of understanding under the entry of public research Institutions Into the bio- which a center conducts Its programs in an individual technology field. developing country - the centers are lIhmted In their collaboration to a public agency designated by the gov- In developing countries, similar changes are only ernment. It would, therefore, be necessary to revisit beginning to occur. Government efforts to build an such arrangements before a center can contract with Indigenous research capacity In the public sector have private enterprises. Realizing that liberalization of the met with mixed success while private sector research is seed sector generally beneflts the farmer and locally owned negligible. The entrance of the private sector into agri- Industry, and that foreign direct Investment brings needed cultural research wvll be a function of the anticipated funding and technology, many developing country gov- market for biotechnology products, of existing agricultural ernients should be expected to be ready to ease re- research capabilities, and, most probably, of the avail- strictions on center operations and allow centers to ability of sufficient intellectual property protection. It collaborate with private enterprise, local as well as for- could be sponsored by Indigenous venture capital or elgn. foreign Investors. As long as the centers or the NARS can avail them- in most developing countries, the National Agricul- selves of only one conduit to disseminate a research tural Research Systems (NARS) are currently the only product in a developing country, Intellectual property conduit available to centers to adapt their research protection is not relevant to thetir "downstream" relaUons products and disseminate them to farmers. Yet, because In that country. It becomes relevant, however, once there of inadeqtuate staffng and funding, the NARS have often Is a choice among several conduits, coupled with the turned out to be less than fully effective in discharging possibility to protect intellectual property. If, for Instance. this role (Anderson, et al., 1988, pp. 110-119). Tne a center decides to disseminate an lImproved variety or centers therefore have a strong Interest In the emergence of a viable breeding activily In the private sector to share ""A less appreciated benefit is the salutary effect of the private sector the tasks of national programs (Sawyer, 1990, p. 4). 'nils on the public research Institutions: they provide the competition the would help farmers: they would obtain the beneflts of latter need to stir them from the complacency endemic to bureaucra- 30 improved varieties not only faster, but also would have cies' (Javier, 1990. p. 419). 31 vaccine through a private flrm (which may be the local and from the outset lays down speciflc conditions and branch of an international firm), the local firm, in order t requirements. to effectively market and (listribute the improved variety, nmay need the exclusive righlt to It. Otherwise the firn Another concern must be the possible increase In may not have the Incentive to Invest in advertising,g the cost to farmers of the protected materials, and the distribution, and the extension activity that may go along attendant risk that a private breeder focus his marketing with seed distrilbution. Should the center choose to dis- efforts on the well-to-do farmers because they can pay semlnate through a nattonal program, the national the higald! pr-ce. t mary therefore be necessar; ,for a program may equally want exclushrity, or It may want to center, under a licensing agreement, to require assurances distribute through a private firm on the basis of an that the licensee will sell the protected material with only exclusive license. Notably, semi-autonomous public sector a reasonable markup for profit and/or continue making research Institutions In some countries have approached good public varieties available at competitive prices. centers for exclusive rights on materials developed by the center which these national Institutions intend to 2. Points Favoring Use of Proprietary Protection commercialize in order to generate needed research funds. for Dissemination and Marketing Though the decision to commercialize Is made by a national program, the center's initial acquisition of In- In general, the private system is likely to offer the teilectual property rights may be important in guarding developing world farmer a wider choice than will be the option for the national system to exercise the ex- available through the public system. This is the reason clusive-rights choice. why a number of developing countries, e.g. Mexico, are emphasizing the need to create a private seed supply It should be noted that what Is typically Important . sector. Moreover, pressures on public budgets in de- In marketing Is exclusivity as recognized by the farmer. veloping countries are'such that the public seed supply Thus, If the center Is providing a finlshed variety, It can sector and the National Agricultural Research Systems itself obtain variety protection and transfer rights to a are likely to be inadequately funded; without reliance on national system or a private firm. If it Is providing the private sector, the centers' innovations may never unfinished material, it can do so with exclusivity through reach the farmer. a contract based on trade secrecy; alternatively, It can provide the material on a non-exclusive basis. In either D.Issue Four: Gaining Access to Patented Blo- case, a breeder working with the material might develop technologies - Ilow Should the Centers Structure a finilshed variety protectable by a plant breeders' right. Their Relations with Industry and Advanced Research Institutions in Industrialized Countries? 1. Points Opposing Use of Proprietary Protection for Dissemination and Marketing Centers need effective network relationships with unilversities and biotechnology flrms in order to obtain There is a risk of a negative perception If a center patented technologies and adapt and advance them for permits a private firm to make a proflt on the product of the benefit of farmers in developing countries. These publicly funded research. This will be less of a concern would, for example, include agreements under wlhich a If the license It issues is non-exclusive, and available to researclh laboratory inserts a proprietary gene Into cenler all qualified parties without discrimination. If a center materials for breeding and adaptation to developing Issues an exclusive license, it should do so on the basis country conditions. Contractual arrangements might 32 of a competitive bidding process which Is transparent , specify the distribution of the product in such a way that 33 the resulting technology would be available witihin devel- What makes the transfer limitations even more se- oplng countries at a low or no clharge, whlile lhe owner riotis Is Ihiat It Is now abundantly clear that they will of tIhe gene would protect Its market in developed countries restrict transfer within the developing world. There are through patents or contractual commitments. In more several examples of firms allowing the free use of pro- complex arrangements, such as a joint research project, prietary technologies in certain developing countrles, and |i the flrm and the center each supply particular tech- barring It In others, particularly In countries which are, nologies and each receives specific research products. or may become, attractive markets for them. Thus, a center may have to comm.It itself to deny certain courn- Examples of such network relationships have been tries access to certain germplasm. Whether these established. Monsanto Is providing Its coat-protein virus countries would still be able to use the material legally technology to Mexlco's Centro de Investigacion y de (after they obtain It from other sources) would depend on Estudlos Avanzados (CINVESTAV) at Irapuato: several whether the material Is patented in the country involved. international centers have been in negotiations with Plant Even without patents, however, the technology supplier Genetic Systems of Belgium for Bacillus thurtngensts may stlll condition the center's access to the technology genes. on a commitment not to transfer the material outside certain countries or regions. Concerns a center should be aware of when entering into such arrangements are discussed in the following Further, it should be noted that the centers will sections. have to face the vagaries of the patent battles. Currently. a number of firms are seeking patent rights to various 1. Points Opposing Network Arrangements with strains of the BaciUus thuringensls gene. Some of the Prtvate Firms claims will undoubtedly overlap and be sorted out by the courts. There Is a chance that a center may acquire a This approach may Irnpact on the flow of genetic gene from a frm that turns out to be the loser in such material within the CGIAR system. For example, a center litigation, The gravity of this risk Is often lessened by the may not be able to supply samples of a protected material fact that the center can only be sued for patent in- (which might include any derivative material containing fringement if a patent Is In force in Its host country or the proprletary gene) to a collaborator without flrst ob- the host country of Its collaborators. Moreover, this Is talning the permilssion of the patent holder. Even If a context In which center inventions mIght be useful transfer for research purposes is permitted, the recipient bargaining chips In settlement negotiations. must be given warning that a variety containing the gene cannot be used without the patent holder's consent. 2. Points Favorlng Network Agrrangements with Thus, any transfer of the material within the system, Private Firms even to a 'permissible' collaborator, would probably require special paperwork to ensure that the material To maintain access to technologies and Inventions was not passed further along inappropriately. While this which In the fleld of biotechnology will increasingly be kind of red tape may disrupt good scientific communi- generated in the private sector, and therefore more often cation, It must be recognized that, in light of the re- than not be protected, centers will have to abide by the strictions that universities in Industrial countries are rules of the game under which Intellectual property is imposlng on the transfer of biological materials, not Just traded. There will, however, be opportunities for formTng patented materials, the CGLAR system will have to live alliances and networks with the private research sector 34 with this forn of control in any event. in ways which will contain or even offset their cost. Often, 35 l.... ... ..... j ,'. for instance, a firm wll not want on Its own to move Its stronger intellectual property protection, and become more technology Into a developing country, but would agree to Important markets, the possibility for conflicts between cooperate with a center If it Is compensated for incre- centers and the private sector Increases. mental costs from such collaboration. This offers a way to make technologies such as the coat-protein virus B.The Regional Centers"' technologies, the anti-sense technologies, and patented genes available to developing countries before the first In contrast, regional centers deal with a llrited group Iround of patents e.,,res sometime early 4' the 21st of countries that wvii sometimes taike a more homogenous century. position with respect to lnteLlectual property. At the same time, they may face very different global patterns V. SPECIAL ISSUES FOR INDIVIDUAL CENTERS in the different crops that they deal with. Those regional centers whose mandated crops have a limited market in A. The Commodity Centers industrlal countries can afford to Ignore the Intellectual property system, except to the extent they are forced to For the commodity centers, a critical factor In de- do so In the context of acqulring particular technologies. terrining their policy stance on Intellectual property !Those centers whose regions of responsibility include protection derives from the existence, or absence, of markets that appeal to flnns will face much greater need breeding activity for their mandated crop. The situation to be aware of patent developments. Is clearly different for crops such as maize in which the private sector is conducttng large-scale research, as con- C The Livestock Centers trasted with crops such as cassava for which there Is essentially no private sector research. In the maize-type situation, the centers must be more concerned that they The livestock centers will face issues associated with will acc(tlenitally infringe proprietary rights, and should the global market for vaccines and veterinary products. Legal developments here have been different from those expect that arrangements with the private sector will be related to plants and seeds, mailry because there has marked by substantial restrictions on the flow of mate- been no tradition of an animal equivalent of plant rials. Defensive patenting to obtain a bargaining posi- breeders' rights, and the possibility of patenting animals tion In negotiations with the private sector may be has run well behind that of patentlat Ner- relatively more important - and It will be essential for theless, vaccines and veterinary medicines have long been a center to have precise information on what the private patentable In some countries, although others have re- sector Is doing. In the cassava-type situation, there Is l sisted such coverage. no need for such defense; the private sector will be more I ready to provide innovations at Incremental cost and I flow restrictions associated with acquiing those tech-he llvestock centers Is nologies wll be niinimal. Generally, there is much less In order to bring their advanced vacclne,s to the nologieaso moncern wlth in tellmctual, property Issues.market and the farmer, they frequently have no option reason for concern with intellectual property Issues. but to co-opt high technology firms for the further de- The commodity centers must, of course, be sensi- velopment and marketing of the vaccine. Neither the tive to the evolutions of intellectual property protection i tho in countries in which they or their collaborators operate, agroecological or a commodity orientation whose mandate Is region- and to any consequent restrictionis on the flow of mate- ally limited, or had been so limited at the outset and subsequently 36 rial. As developing countries served by the centers adopt i extended. 37 i i ',G , .i ga ... . h.g 00 ............................. | :ea ,,s,,ri4m,.iE.q000 s 0s,g0gg-gg§,y a,.X,.,0/i }~~~~. .... .. .. ... . . I ...... .. ... ... .. .......... ..... ... ... .. center nor a national program would have the capacity cated earlier In this paper, this risk is not as large as to perform this task. As a result, a center will have no sometimes assumed. Patent law's conditions of novelty choice but to follow the Intellectual property rules apply- not being satisfied, a flrm is unlikely to obtain a patent ing among research Institutions and industry In this on a gene within Its normal host range. More likely, the sector. flrm will take a gene from one species and patent Its application in another species. Sinmlarly, although it is Because of the strength and importance of private conceivable that a plant might be taken directly from a sector d:stribut:on networks, and prevaIling industry gente bank and given plant breeders' rihts protection. tradition, a center will likely have to agree on the dls- the more likely possibility is that the gene bank plant trlbution of Its vaccine through an exclusive license under will be interbred with others before protection Is obtained a patent which it will be expected to secure. for a descendent. Even these situations may be politi- cally embarrassing for a gene bank. Nevertheless, it D.International Board for Plant Genetic Resources must be noted that such use is in keeping with the purposes of a gene bank. (IBPGR) IBPGR faces the same issues as other centers. In addition, the global moves toward patenting pose special issues which IBPGR must face, either on its behalf or on VI. CONCLUSIONS AND RECOMMENDATIONS behalf of the gene banks with which It works. While problems and situatlons they confront differ, One set of questions concerns the need to ensure and the Interests of individual centers vary, a reading of access to genetic resources In the face of the world's sillft the situation leads to a number of conclusions that apply toward intellectual property. This is primarily a question to all centers: of responding to moves by countries possessing genetic materials to make such materials no longer freely avall- i. The trend wpthon the Inteleatonal researyha able. This is an issue of growing lmportance to which communlty to protect Intellectual property has solutions must be found in a larger context which goes advanced too far to be Ignored by any CGIAR beyond the responsibillties of either IBPGR or the Inter- center. The centers will increasingly flnd that national centers system. technology they need is subJect 'to Intellectual property protection and that an effective way to Another issue arises from the question of conserv- disseminate their Innovations wlll be through Ing "artiflcal' genetic materials, e.g. genetically engineered private sector collaborators, often under exclusive organisms, in gene banks. IBPGR should work with rights. Moreover, as many developing countries gene banks to define the circumstances In whilch such are likely to adopt or strengthen intellectual conservation Is useful. Moreover, It rnust deal with the property protection over the next several years, possibility that such material may be available only breeders will seek protection also In developing subject to transfer restrictions imposed by the orlginal countries for advanced materilal of lmportance to donor. their markets in both industrial and developing countries. Finally, gene banks face the risk of providing ge- netic materials to users who will patent a portion of the 2. Much of the activity of the centers can 38 genetic nformation contained in the materials. As indi- continue without intellectual property protection 39 , I .......... A B . ' and without breaking with the centers' traditions , restrictions on the free intersystem exchange of of open scientiflc exchange. Thils will be particu- materials. larly true for centers working in countries that have not extended intellectual property protection 6. Finally, each center should carefully review the to plants and biotechnology and for ceniters whose Institutional linkages by which Its innovations mandate crops have little commercial interest for reach the farnner and should protect its innova- industrial country markets. tions when such protecUon is likely to help in marketing the Innovations to developing country 3. Under current policy, centers should not farmers. restrict the flow and release of unimproved germplasm including gennplasm which has been In order to help the centers In defining and execut- screened and characterized. They may wish to consider changtng to a policy of safeguarding their bargaining position by requesting a material 1. The CCIAR should establish a set Of Intellec- transfer agreemelnlt to breprouatIney sigented by fre tual property policies and guidelines, within whlilcl stituUions that will not reciprocate a center's free Individual centers would define thieir own rules exchange policy. In contrast, centers may con- sider licensing their improved germplasm to and procedures. Such a Policy Statement should breeders and producers who Intend to market It lay down the ground rules to which the centers in industrial countries with little or no additional will adhere when structuring their "upstream" breeding. relations with technology providers and research collaborators. It might also sketch out the new 4. Only rarely will Intellectual property pro- 4 partnershlps' centers are looking for In their tection and commercialization in Industrial 'downstream' relations with breeders and the seed countries be a lucrative option for centers. Industry In developing countries. The Policy Hlowever, centers scoring research advances in Statement should consistently reflect the position areas of high commercial interest should consider the Group and its centers take on related Issues acquisition of patents In industrial countries, not (e.g., on genetic conservation and biodiversity) and so much as defense against seeing their innova- should therefore also serve to c6ntain the rilsk tions approprlated by third parUes (that is better that expanding intellectual property protection will done through publication), but as bargaining chiips eventually slow the flow of germplasm. to maintain access to proprietary technologies. There might be cases In which a center should ˘ 2. Individual centers should draw up their own patent an exceptionally Important Invention as a rules and procedures to provide for: source of income, but these would be rare. 5. As It will be Imperative for the centers to con- 1. germplasm distribution; tinually gain access to new proprietary technolo- It. standard networking arrangements likely gles of potential use to developing countries, they be nded toring ingemenlok wlll require understandirg of patents and licens- to be needed to bring In outside technolo- Ing; acceptance of commercial materials subject gies and - to the extent reasonably pre- 40 to restricted use will also entail acceptance of dictable - the kinds of proprietary re- 41 strictions tihat may be accepted, and of ANNEX A ccnter innovations they would consider patenting: and IN-HOUSE POLICIES AND PROCEDURES FOR Wi1. in-house procedures for controlling pro- INTELE1AL MPERT lAGEMENT prletary Information, employee agreernents, relationships with patent counsel, periodic Should a center decide to embark on a significant revi'ews or intellectual property changes In Intellecti.al property program, It will need to consider a host and other countries, and reviews of I variety of admnilstrative steps. intellectual property trends affecting their mandate crops. A. Intellectual Property Management 3. At least in an Initial phase, and until centers 1. Network Arrangements have bullt up sufficient capacity to manage their intellectual property, they should consider the Assuming the central issue for moving into intellec- creation of a central facility to provide basic advice tual property management Is the acquisition of useful and to refer centers to legal counsel appropriate proprietary technologies, a center will need the support- to their specific concerns. Such a facility should Ing legal capability to negotiate these agreements. It also allow centers and their staffs in charge of may want to develop specific guidelines as to the kinds intellectual property management to exchange of exclusivity that it will accept, or It may consider the informnation and experiences on patent and plant hlard choices on a case-by-case basis. It wlll also need variety matters. During the start-up of this new i the legal support to structure the agreement, taking into activity, centers should arrange, perhaps with the account both local intellectual property law as well as help of other internationial agencies and Intellec- t Ie laws Of countrles In which protection and collabora- tual property groups, workshops to help their thore cotild be Imporiani. And In cases In wanlch lher are scientists, their staffs worklng on Intellectual lo ol eiprat n ncssi hc hr r propentyIssues,and thei f worngus from natlonal known patent disputes, the center may want to have a property issues, and their colleagues fo aoa progrars to understand the basic concepts as patent finrn do a careful evaluation of the strength of the I well as the costs and benefits associated with , technology supplier's Intellectual property position. intellectual property, and to ensure that the technical aspects of the law not hinder their 2.Tracking Procedures niJssion. The center will also have to develop procedures for proprietary lnfonnation and material among Its own re- search staff. These will include at least: a logging sys- tem, employee agreements committing them not to pass on Information or material that should be retained by the center, and standard forms and procedures for gain- Ing commitments from third parties to whom material Is provided. If a center Is going to develop its own propri- 42 etary infornation, primarily to direct dissemination, 43 424 similar procedures will be necessary for protecting that B. Staff Policies itformation. In partictlar, the center will want to use a standlard niaterial transfer agreement. 1. Employee Agreements 3. Patent Application and Utigatlon Processes If a center Is going to protect material of its own. there will have to be an employee invention agreement, If the center Is going to pursue its own patent ap- defining relative rights of employees and the center in plications, it will need to set up appropriate procedures. innovations. It should also govem the employee's use of This will typically involve a local patent specialist who materials that may be proprietary to a technology sup- regularly works with the center and a network of rela- plier. The details will typically depend on local law. The tions with patent searchers and patent attomeys in centers may also want to create their own reward pro- countries in which patents are regularly flied. There cedures for employee Innovations. should be a careful review of the inportance of the In- novation before expending funds for patenting. Perhaps 2. Information Procedures most Important - and possibly controversial - will be the internal network to ensure that Inventions are brought In addition to the procedures noted above to protect to a patent specialist to be reviewed for possible patenting, proprietary Information supplied by others, the center will need to have a variety of information-control mecha- A center would normally tum to specialized firms nlsms if It Is going to pursue its own patent coverage. for litigation. Such litigation Is expensive and should be This includes laboratory notebooks, a pre-publHcation rare, but sometimes may have to be considered to maln- review procedure for scientific manuscrlpts (to ensure tain the centers' credlbility If the effort spent obtalnilng that patents are flled before publication), and possibly patents is not to be wasted or if inventions are not to be control over the transfer of biological materials in order placed unfairly in the private domain by others. } to ensure that the center is able to obtain patent coverage wlhern It desires, and to protect Its position in the event 4. Cost of Intellectual Property Management of patent litigation. To estimate the cost of Intellectual property man- C. Collaboration Within the CGIAR System agement, both initially and in steady state, is not pos- sible. Some ball park numbers may, however, be of It may be desirable for the centers to cooperate on interest. certain of these activities. For example, It would be valuable for them to exchange data on patent firms they The cost of obtaining a typical patent, including flnd best In particular jurisdictions. Similarly, there is searchi, fIling, and attomeys' fees, is on the order of $9,000 no need for centers to duplicate one another In evaluating to $14,000 In the Unilted States:' It may be somewhat the intellectual property position of a particular finn less in other countries. The average cost of patent liti- offering a specific gene. And, should there be a substantlial gatlon In the United States is about $0.5 million (on number of Innovations arising from the centers, the CGIAR each side) per claim litigated and wlll probably be less in might usefully operate a common licensing operation. other legal systems. Some kind of a facility serving all centers, at least during an Iniltial period untll they have built up in-house capacity ' fThese are 1988 numbers (rounded) from R Foltz and T. Penn. to manage their intellectual property, should be consid- 44 Protecting ScentJc Ideas and Irwentions (Penn Institute, 1988, p. 142). ered. 45 ....... ........ ...................... ................~~~~~~~.5. : ::. .. : . 5:.. .55.5. 5 ...55..5 ANNEX B: OVERVIEW OF PATENT PROTECTION (1988) Pata,, Protection an Patent ProteCtion oM Pnt rot Pl5Ill* u Plant Proatac and Pt M, Proct twth I d Food Produto I. frd MPrrduce eMiberships of Patent 2, Pt nt/ Animl Memberships Paotent :2 Plant/ Anr ct nrotecti Varlatioo Prowetion Varieties Counltry i.hdr St N1(crea o oitma Country Under 13 Microorani. National *r Prodcts National ond Pro toet tagialatrin throlf i ogjstation thereof Perl |rr 12 | Pris I terne | t 2 | 3_[ L_ ________1111 ZI..1L ...... ....... ;00 1,OW INCOME Xa ICOM Ibntn 0 * IOz d ir0:*0 tb 0 &wkins Fbso * * ami surund 20a ~~~~~~~~~IJDWER-MIDDLE INCOMtEI Central African a a 10a.d M OiA Chrvd * 20. I F t China 21b * tt Cotonbl " 5cd *Z cabla. lba a0C a a a aorna a Gh , 20o a s;Chile a I I . * a Gulne 2s a Je a Cooo * Guinea'Shssau e ira a a a . teiti a S ,l0,2c *a a a to d v 0 s" nirls a I4b a a . Mi * . 1 a lr.doeea aa a Ecejador Sc,da Srl trnk * Z 15s e e l lhll~~~~~~~~~~~~~~ww nd * ISa. S 20a IS lesoo Jordan a 16& 1 a a tOs ~ ~ ~ ~ ~ ~ ~ ~ ~ ttal , , y , is.t:ts , a, * Lieradaacrkiyl S Malawiv6ba a 1 4 II ~~~~~Malia 10o,d .esea aIe*a I: ll~~~~auritania a aita,d rmoe 0 Nlger * 1Oa,d a aua o algeria a 20.s,~iplnia * Pakistan, a 16o,d aa a ltwwdo a *20. a a a~A ~ -Iad Swaxilwd 20ca Sierra (Oono, t0. a a a Sri L"a 150 ~~~~~~~~~~~~~~~~~~~~~~Syria a Saa Sudan a Z0a a a$l.5,ta logo a a lO~~~~~~~~1a.d a a tuiaky a 5IiS a 0 . a a a l*Ii a a IC. a a 46 47 Patent Protection on Potent rotectin m Plants aatPotclna and Plant Pro4jxt Pt ats t nrgth t: food Prodckt t nrtth to Pra dun t Memberghips ofr P tont 2 Pt nt/ Anl_I Hembershipm of Patant 2: Ptant/ Anisal Memberships Protection V:parit/ iesw Protection olte Country Ulder 3: lcroogonlui Country tltor 3w c rdnft gational and Produicts Coattryalh andKlcroducanl Lgsltation TIhereof latleoaldn Ther f Pari Sarno jUP 2j!--- -Oi T-- i UPPER-MIDDL^E INCOME | Ca_y 2D4 * a 9 Isc a~~~~~ a At A rla*20 *tt Ireland a a W 16a d a a 20a Are rntina a _ _5_10_ _ _ _ a5 l - 0 a Urbtd 0* a 15s,d a a Iti a a J 21b a Cobon a a 10&,d a a aen a a a i5b a creece 0 a 152 L *tiechtenstein * *20a a ratzry a* a a 201 * tuxrtmoaj a a 20a a a Ir n aN 5 tu di o -therl a a a 20a a Kore, Aepthlic *f it 12h tlOtM". 20t Libya a 15 d Sp*aiWn 5 2De t Mtchtlo 2te e dha t a Sw tated. a . a lc0d a a a Seuth Africa a a a 20a a a Surinow 8 ~~~~~~~~~~~~~~~~~UNCLASSIFIED Suriniad a a * * a a laloan (China) t5c bulgaria ; a a iSa a Urugu y "a a '5' is Col t a * 5td Vanoluala a S 10c a a Korea, Oe. Ppl's a 'a a, a Yugoslavia a a Tb,d Rep _ _ g _ _ l ll~~~~~ ~ ~ ~~ ~~ ~ ~ ~ ~~ongotla1a HIGH INCOME a I a a mtria4 . a Sab * Austraia a a fb'a SOURCES: WIP'O (1988), Gadbaw and Richards (1988). Ranking according augtrtl a *6a a lAb d * * |to World Bank national income data. selgi M a 20a a NOTES: a from filing date; b from publication date; c from grant date; ctdo a a a t7c a a d extension possible-typically 5 years; e no information available; Cy" a 0 20a a ~~~~~~~~~~~~~~~~~denotesi membership; I grants PBRs, but not member of UPOV; * processea patented under some circumstancea; I Italy allows plant varietiea but bDrsrk a a a 20 a not antmal varietiea; f excluded until 1992; t PBRs not yet tInand a a 20s a implemented. 48 a 49 REFERENCES ICRISAT. Managtng Intellectual Propertj Rights at the International Agrictultural Research Centers. Summary Report of a Workshop on the Consequences of Intel- lectual Property Rights for the International Agricul- Anderson, Jock. , R.W. Herdt and G.M. Scobie. Sct- tural Research Centers held at ICRISAT 19-21 Banc Wand n Food DThe COIAR and Its fizrtners. World November 1990. ICRISAT, Pantacheru, 1991. Bank, Washington D.C.. 1988. TFPRI. Annual Re-nrt InentoaFodPulyRsrc Barton. John IL "Patenting Life" ScI-,entifi1c Am-erican: Jr..traloa odPliyRsac March, 1991. pp. 40-46. Institute. Washington, D.C., 1988. Collinson, M.P. and K. Wright-Platals. Biotechnology and James, C. and G. J. Persley. "Role of the Private Sector' the Intemational Agricultural Research Centers of the In G. J. Persley, ed., Agricultural Biotechnology: Op- CGLAR. Paper prepared for the 21st Conference of portunitles for International Development. CAB. In- the International Association of Agricultural Econo- temational, 1990. mists, Tokyo, August. 1991 (mimeo). Javier. Emfil Q. 'Issues for National Agricultural Research Commission of the European Conimunities. Proposalfor Systems" In G. J. 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