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patenting agriculture
exploring intellectual property rights, ethics, and the future of patent law

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Innovation in agriculture, particularly in plant genetics, can significantly improve living conditions and health for millions worldwide. Yet a combination of hindrances stemming from patents and intellectual property rights can slow down the research process. CNR bioethicists and economists are coming up with creative solutions to ease the path to effective research while preserving the rights of inventors.

Research in agricultural biotechnology is probably not going to stop anytime soon. Labs around the world are in hot pursuit of new innovations in agriculture, and it seems unlikely that such a lucrative and fast-expanding field will come to a screeching halt. In light of this, maybe it's time to try for some creative steering.

The patent, a form of intellectual property rights (IPRs), protects its owner's exclusive right to market or use his or her invention, or license it to others. Patents can be valuable if they protect something with the potential for commercialization or for creating a product with humanitarian purposes. For example, sorghum, a principal source of food for 300 million people, has been modified by CNR plant biologists Peggy Lemaux and Bob Buchanan to improve nutritional quality. They joined an international consortium of organizations, headed by Africa Harvest and funded by the Gates Grand Challenges for Global Health, to produce "Super Sorghum," a variety that could dramatically improve health for the world's poorest families. Many of the genes and technologies being used to create this sorghum crop were patented by companies and public sector researchers and have been donated for use in this humanitarian project. "Without protecting our important tools and the genetic information for this project, it might not have been possible to provide these valuable resources," says Buchanan.

There's a lot at stake here in terms of money, ownership, and access. Who has the ability to license what and for how much, which foods or drugs are researched, and how the materials developed are shared all impact the lives and health of people around the world. Current global practices in medical research, for example, follow a "90/10" ratio: 90 percent of research is dedicated to diseases that affect only 10 percent of the global population, and 10 percent to diseases that affect 90 percent of the world's people. According to some experts in the converging fields of science, law, and economics, this kind of imbalance can be solved by rethinking existing forms of property rights in new and creative ways.

That's the idea behind a recent colloquium sponsored by UC Berkeley's working group on Science, Technology, Ethics, and Law (STELA). Organized by David Winickoff, assistant professor of Environmental Science, Policy, and Management and CNR's only bioethicist, STELA's fall colloquium took a look at the future of plants and intellectual property rights. "We want to make sure that innovations in agriculture and other technologies serve the neediest people," Winickoff says. "There's growing concern that, at present, they are not. And it's the role of public universities like Cal to promote, not hinder, the open use of innovations."

In 1995 the World Trade Organization instituted the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS). A kind of baseline IP agreement, TRIPS requires all member countries to offer a minimum level of IP protection to foreigners and sovereign citizens alike. This agreement has been controversial: many scholars and critics think it favors developed countries because IPRs are generated and held mostly by these nations.

Scientists alter their research direction based on what is available to work on without infringing on a patent, and in doing so, may move away from work important to treating diseases or other public health problems.

One of the themes of the colloquium was the importance of keeping certain knowledge and information in the public domain. Madhavi Sunder, an intellectual property scholar and professor at UC Davis, and one of the keynote speakers at the STELA event, warns that this argument ignores the problem of distribution: just because a pool is open to all does not mean that it will be equally exploited by all. Developed countries have a gross advantage in navigating technology transfer systems, which move inventions from creation to market. These systems are commonplace in every research institution in the United States: the University of California, for example, has had a tech-transfer office in place for more than forty years. The University of South Africa's system, however, is still evolving; even if equal IPRs are afforded, it is developed nations that have the advantage in knowing how to use them.

Access and legal savvy are just part of the issue of patenting agriculture; profit versus public good is another worrisome dichotomy. According to Jack Kloppenburg, a sociologist at the University of Wisconsin, Madison, seed collection for public banking and the support of traditional breeding at the local level are important methods of making agriculture innovation socially responsible. Kloppenburg, another keynote speaker at the STELA event, favors strong public involvement in directing plant science in order to keep research from being motivated by the end goal of profit. Nearly twenty years ago Kloppenburg traced the history of agricultural biotechnology in his book First the Seed, which he recently updated to consider the changes and current landscape of agricultural biotechnology. Kloppenburg finds that the need for robust public investment in plant science is still present, but notes that there is wider opposition to areas like the production of genetically modified crops and "bio-prospecting," when corporations from the developed world mine and patent plants or biological materials indigenous to developing countries.

There's also the problem of being able to actually carry out the basic research. Freedom to operate, or lack thereof, threatens scientific innovation at its very beginnings--never mind the task of making it available to the multitudes. CNR agricultural economist Brian Wright believes that better licensing practices are in order. Scientists alter their research direction based on what is available to work on without infringing on a patent, and in doing so, may move away from work important to treating diseases or other public health problems. Researchers may also find their work hampered at later stages by a "patent thicket," in which parts and processes integral to the experiments have been patented by multiple entities. The cost and complex negotiations involved can slow down research, or cause it to be shelved entirely if costs turn out to be too steep or agreements for use cannot be obtained.

So if TRIPS favors the usual suspects of the developed world, profits rather than need drive the allocation of research capital, and if current intellectual property regimes are doing a disservice to the production of scientific knowledge, what options are there? Kloppenburg, Sunder, and others believe that through non-traditional methods of licensing inventions can be protected and that IPRs can also take into account the social ramifications, economic implications, and the need for scientific experiments to move forward, and incorporate these areas into alternatives to our current systems.

This is already happening, especially at Berkeley, which has been at the cutting edge of finding new solutions. There have been many suggestions, including patent pools, in which various patents on the processes or tools required are combined for a kind of "one-stop shopping," easing the process of obtaining licenses--all the parts necessary for creating a new variety of seed available for one price, from one place. This line of thinking gave rise to the Public Intellectual Property Resource for Agriculture (PIPRA), the brainchild of David Zilberman and Greg Graff, agricultural economists at UC Berkeley and UC Davis, respectively. A clearinghouse for agricultural technology, PIPRA takes languishing patents on agricultural technologies from all corners of the public and private sectors, bundles them into usable tools, and serves them up to public sector research institutions, which are then able to move forward with scientific innovation in plant varieties, creating improved crops, and fulfilling the mission of public service that is integral to these institutions.

"It's the role of public universities like Cal to promote, not hinder, the open use of innovations." -David Winickoff

Another alternative is the Biological Information for Open Society (BIOS) initiative, started by the international non-profit research institute CAMBIA. With the stated goals of "transparency, accessibility, and capability to use patented technology," BIOS takes open-source models of licensing from the field of computer software, and applies them to the life sciences, including agricultural biotechnology. The open-source model allows for free sharing of patents, which allows for the progress of research and improvements on current technologies.

All this leaves the future wide open. Choices made now are crucial to millions of people in hundreds of countries; innovation will continue and the impact of new tools and inventions will depend on how they are directed and to whom. Funding for Super Sorghum, for example, has been given through Africa Harvest's program, supported by the Grand Challenges in Global Health initiative. This is one way to serve the public good, but it could have easily gone a different way if profit had been the end goal. Kloppenburg, Sunder, Wright, and Winickoff hope that new modes of thinking will make this kind of collaboration a lot more common.

-Aimee Kelley
Photography by Genevieve Schiffrar

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