Rethinking plant patents, and rethinking again

Åsmund Bjørnstad, a plant breeder and professor at the Norwegian University of Life Sciences at Ås, recently published a stimulating article on plant patents. We asked Daniele Manzella, a policy and legal consultant, to comment. Below are his thoughts. Interested readers may also want to read another recent post on seed IP issues. It is, of course, all very timely.

Åsmund Bjørnstad has recently published a piece in Trends in Biotechnology, under the title “Do Not Privatize the Giant’s Shoulders’: Rethinking Patents in Plant Breeding.”1 The author starts with a diagnosis that could be seen as controversial: IPRs have an increasing impact on plant breeding. They do not necessarily promote it, though. Arguably, they also delay it.

With plant varieties subject to both plant breeders rights and, with some variations, patents, and with patents spreading into the non-GM breeding sector (e.g. induced mutants, native traits) — just to depict some features of the intricate layering of proprietary claims — the risk of dependency threatens the breeding sector and cannot be mitigated by good breeding practices only. Companies invest considerable resources to monitor protected elements.

Add to that the contentious regulatory area of access to germplasm, composed of requirements stemming from the CBD, the International Treaty and now the Nagoya Protocol, with its corollary of MTAs and market- and non-market-based benefit-sharing schemes, and the blockage to innovation becomes even more robust. The consequences are legal uncertainty and rising costs linked to complex “freedom to operate” analyses, non-optimal technology integration, a narrowing genetic base for breeding due to access restrictions and the resultant avoidance by users.

Åsmund wants to clear the blockage of this anti-commons scenario by combining variety registration and compulsory licensing. Under the label of ‘toll roads, not road blocks’, he introduces the idea of breeders having to declare “patents used” (i.e. patented varieties, traits, or technologies, methods utilized etc.) when registering a new variety for commercialization, to then obtain compulsory licenses from title holders. He extends the proposal to include a declaration of the origin of germplasm, from a country of origin or from the Multilateral System of the Treaty.

In his view, this transparent solution rewards inventors, supports innovation and maintains fairness. A win-win-win!

The proposal is a generous attempt to constructively advance the debate on how to incentivize modern breeding for food security in the current legal landscape. It deserves attention on its merits by scholars and practitioners, who will certainly examine his piece in depth and with the necessary rigor. Åsmund rightly calls for more legal analysis, recognizing some tension with the TRIPS provisions on compulsory licensing. For instance, how to reconcile his proposal with the requirement that compulsory licenses be used predominantly for local markets?

However, I want to pose a more general question in this post, with the hope of triggering discussion. Åsmund’s proposal relies on legislative reforms, presumably of both patent and seed legislation. My question is: are legislative solutions feasible? And, will industry support them? My perception is that industry is in search of solutions that are both timely and global. Among its several strengths, Åsmund’s proposal may show some weakness on both those counts.

Global legal harmonization is slow and rarely keeps pace with technology evolution (in our sector, predictive breeding may soon be a reality). To what extent is it feasible that countries will reach a level of agreement and commitment that translates into harmonized legislative reforms in the various jurisdictions? Is it foreseeable that countries worldwide will act in sync on such heavily debated and complex topics, where multiple interests are intertwined (for instance, I am not addressing in this post developing country perspectives on plant innovation).

Without such agreement and commitment, global scale will not be reached and we will continue adding pieces to the current puzzle of national patent — and seed — laws. Indeed, patent laws are harmonized through minimum standards but, beyond those minimum standards, already display considerable differences from one jurisdiction to another, in terms of rights, limitations and exceptions. Not to mention case law, which is another source of differentiation.

In a nutshell, the current industry initiative for vegetable crops (which you will find described in Åsmund’s article) may well be no more than exploratory, limited in scope and merely voluntary. However, it is cooperative, autonomous and fast — three features that are desirable in any attempt to stimulate a more favourable policy and legal environment for plant breeding.

  1. Bjørnstad Å (2016). ‘Do Not Privatize the Giant’s Shoulders’: Rethinking Patents in Plant Breeding. Trends in biotechnology PMID: 27016032 []

7 Replies to “Rethinking plant patents, and rethinking again”

  1. First let me thank both Luigi for asking and Daniele for responding.

    I still need to get into Åsmund’s original piece, but I want to ask a question concerning a potential drawback from the current situation. One of the consequences Daniele lists as coming from the legal uncertainty surrounding the various IPRs is a narrowing of the genetic base for breeding. I’m not sure how this is a consequence, can a particular example be provided?

    I might offer a hypothetical case so as to flesh out my question a bit: Let’s say a private entity breeds a new variety from two unprotected parents. The new variety is subsequently protected under some IPR scheme (say a patent). Are we suggesting that the existence of the patent in this case narrows the genetic base for breeding?

    1. Thanks for the rapid feedback! It is hard to impute but, when referring to the narrowing genetic base, I had more in mind ABS-based restrictions.

        1. Ok, I see that ABS is Access and Benefit Sharing. I still wonder if restricted access to a newly developed line or variety is considered a narrowing of the genetic base? If so, how is such a conclusion reached?

  2. Problem: “He extends the proposal to include a declaration of the origin of germplasm, from a country of origin or from the Multilateral System of the Treaty.” What if the country of origin is not a party to the Seed Treaty? For example, Mexico. There are something like 160,000 samples of Mexican origin in CG genebanks and therefore in the Treaty multilateral system. What’s in it for Mexico? There is no reason why Mexico should ever again allow access for samples for the CG unless some mechanism can be found to reward Mexico for use of these samples. Is anyone even thinking about this problem?
    Is the current vast CWR project allowed to collect in Treaty non-party countries? Given the reported value of CWRs would it be possible to pay countries up-front for access to CWRs and then apply the CBD ABS measures for future use – that is, sideline the Treaty? If this return to the CBD could work, why not scrap the Treaty – which is not working for sample access?

  3. First of all, thanks to Daniele for taking my small piece seriously. His and the subsequent questions deserve some comments.

    First, I entirely agree that “global legal harmonization” is a daunting task. The patenting practice in the US and Canada appears well established and enforced, to say the least. My perspective was rather European, since the IP situation is much more open (yet) and has aroused great controversy. Both the seed industry, politicians and many civil society organizations oppose last year’s decision on tomato and broccoli patents in EPO. In this situation some new ideas may be worthwhile. Given that four countries has passed breeding exceptions for patents, that Switzerland adds compulsory licensing to this, and the emergence of private licensing consortia, changes need not be dramatic. After all, EPOs “interpretations” of the terms like “plant varieties”, were not based on legal changes. No doubt, the feasibility of my slogan “toll roads, not road blocks” will work, needs commercial as well as legal analysis.

    To Clem, I would say that strong IP fencing that forces each breeding programme to keep its own gene pool, may in theory make varieties more diverse. It is currently being tested in the US. However, the “research exception” allowing access to each other’s varieties is strongly supported by breeders in Europe to give breeding progress. The intermediate case, like allowing some extra protection time for “diversity diving” and “pre-breeding”, needs consideration.

    So to Dave: I ventured to add that if use of IP is disclosed when releasing a variety, it would be a piece of public information of interest for the CBD/countries of origin, or for the International Treaty. However, it would only be enforceable in countries that require country of origin to be disclosed or are among the signatories of the Treaty. Even then, many don’t live by it. I think that if countries see that the Treaty works on this issue, it might restore a sense of fairness. Currently controversial patents might, also for them, not be road blocks, but accessible as improved seeds, germplasm and technologies on fair and reasonable terms, helping their national food security.

  4. I have not yet read Asmund’s piece, but any thoughtful and constructive contributions are always welcome.

    However, Luigi’s concerns strike me as critical – where would such an initiative fit within an already-complex global system of property and benefits? How much harmonisation would be needed for it to take off and facilitate – rather than complicate – R&D (e.g. as Asmund suggests, could a cluster European countries get the ball rolling for certain crops? Would that serve in time as ‘proof of concept’?). What powerful stakeholders could champion such developments – and who might see themselves as potential ‘losers’, and resist?

    Maybe these sorts of questions are unknowable in advance. But I suspect we could get some idea of what is possible from scholars who look at the influence of existing IPR / MTA / ABS policies on scientific practices.

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