Managing Global Genetic Resources Agricultural Crop Issues and Policies (1993) / Chapter Skim
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12. Exchange of Genetic Resources: Proprietary Rights
12. Exchange of Genetic Resources: Proprietary Rights
Pages 279-302
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From page 279... ...
Studies of proprietary rights in agriculture, primarily of plant variety protection, have found that such rights bring somewhat increased private breeding activity but have not found significant effects on the genetic diversity of the varieties that are marketed (Butler and Marion, 1985; Council for Agricultural Science and Technology, 1985; Lesser, 1987; Mooney, 1983; Perrin et al., 1983~. Nevertheless, there has been international political concern over the growth of proprietary rights in the biological area and particularly over the possibility that such rights benefit the developed world at the expense of the developing world.
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From page 280... ...
The committee did not consider the issue of whether developing countries should strengthen their own intellectual property systems, either to encourage domestic innovation or to facilitate or limit the licensing of technology and genes from abroad. In evaluating the effect of property rights on the exchange of genetic resources, the committee reviewed the growth of proprietary rights legislation and use, explored the actual barriers to exchange that have arisen or may arise for several species of importance to developing countries, examined several alternatives currently under discussion, and developed relevant recommendations.
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From page 281... ...
Such a patent conveys rights similar to those of any other patent and particularly that of prohibiting others from reproducing the plant asexually, but it could still be used for breeding. In 1970, similar legislation was adopted for sexually propagated plants, the Plant Variety Protection Act (codified at 7 U.S.C.
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From page 282... ...
making limited sales of, seed from his or her own crops for seed purposes in following years. Although few other nations distinguish vegetatively propagated and sexually propagated varieties in the way that the United States does, most developed nations and a very few developing nations have adopted bodies of law providing such protection for plants (Barton, 1982; Berland and Lewontin, 1986; Commission on Plant Genetic Resources, 1986; Mooney, 1983~.
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From page 283... ...
A regular patent conveys somewhat broader rights than plant variety protection does; it might not recognize, for example, the farmers' exemption, under which a farmer can use one year's harvest as the next year's seeds without infringing a plant breeding rights certificate. Recent changes to the UPOV convention will allow nations to eliminate the farmers' exemption.
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From page 284... ...
Hungary, the Commonwealth of Independent States (under an inventor's certificate) , and Germany, are the only other nations known to allow patents on animals (Byrne, 1985; World Intellectual Property Organization, Committee of Experts on Biotechnological Inventions on Industrial Property, 1987; Rote Taube, 1991~.
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From page 285... ...
Supreme Court. For the patent disclosure to enable others to practice the invention and build on it for research purposes, the United States and a number of other nations require that a sample of the claimed microorganism typically be placed in a depository so that it can be stored and be made available for use by other researchers (In re Lundak, 773 F.2d 1216 (CAFC 1985~; Feldman v.
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From page 286... ...
What are actually claimed in a gene patent are typically the isolated gene sequences, novel plasmids incorporating the sequence, and plants transformed through such a plasmid; hence such a patent reaches the use of the gene for genetic engineering but leaves breeders free to work with the gene in its natural context (that is, as it occurs naturally in a plant)
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From page 287... ...
Moreover, even if the new material costs more than the previously used material did, the incremental cost must be less than the incremental benefit to the farmer; otherwise, the new material will not be bought. At least in the short term, then, new developments in the developed world are unlikely to hurt the access of farmers in the developing world to genetic material because old material is also available.
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From page 288... ...
For many plant species, advanced traditional breeding is conducted primarily in the public sector, for example, in land-grant universities in the United States, in research universities and publicly funded research centers in other developed nations, in a variety of international research institutions, such as those operated by the Consultative Group on International Agricultural Research (CGIAR) , and in the more advanced universities and public research institutions in developed nations.
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From page 289... ...
157 (CD Cal, 1982~. While plant variety protection permitted the use of a protected variety as breeding material for further varieties, the regular patent system is less likely to permit such use.
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From page 290... ...
low research facility costs give the nations of the developing world a major opportunity. Conceivably, however, the opposite will prove to be true, and there will be a concentration of research in multinational corporations in the developed world with less opportunity for developing nations to enter the economically successful biotechnology sector.
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From page 291... ...
These seed sources are responsible for the majority of the supply of seeds in the developed world and for some portion of the supply in the developing world. The exact portion of this trade in the developing world is unclear; in some developing nations, however, a substantial portion of the seed used is hybrid, most, but not all, of which may be bred and produced locally but with financial support from international firms.
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From page 292... ...
At worst, it can hurt farmers' economic competitive position compared with that of farmers in the developed world. Fundamentally, it is only if the traditional materials become unavailable that farmers in the developing world can actually lose access to genetic material (and even then there is a possibility of reconstruction from commercial material)
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From page 293... ...
have substantial rice breeding programs. Rice is a crop for which the activity of the private sector and proprietary rights have been largely irrelevant to the developing world.
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From page 294... ...
The global base collection of potatoes is in Peru (International Board for Plant Genetic Resources, 1987, 1990) , and there is a substantial public sector breeding program of great importance for the developing nations.
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From page 295... ...
Moreover, the role of proprietary rights in the breeding material has so far been minimal; it is likely to continue that way. What may prove to be important, instead, are new technologies of working with—or finding substitutes for palm oil.
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From page 296... ...
It is hard to see that legal barriers based on proprietary rights will significantly increase the costs of breeding stock, which already reflect discounted future benefits. Nevertheless, the scarcity of material affects its cost, and breeders in developing nations as well as others may well pay substantially more for the particular germplasm.
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From page 297... ...
There may be more in the future, particularly in the biological pest control area and because new applications of industrial biotechnology appear to be increasingly appealing (remain, 1983~. At the same time, except for natural fermentations and the like, there have been relatively few applications of industrial biotechnology in the developing world.
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From page 298... ...
It has been said, for example, that the fermentation technology of the pharmaceutical firms is so closely held that university research in the area is well behind. It also follows that the transfer of the fermentation and production processes to firms in the developing world will suffer; these technologies may have to be independently developed in developing nations, possibly relying on local sources of genetic material.
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From page 299... ...
Extrapolation from the species analyzed here suggests, at least in the short term, that the developing world has relatively little to fear (from a genetic resources perspective) from the developed world's adoption of proprietary rights for life forms.
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From page 300... ...
The central issue for developing nations is usually whether or not there is a substantial public sector program or domestic breeding industry in that nation. If there is such an industry, there is likely to be effective fairness in access for farmers in the developing world, and in such a case there is likely ultimately to be a reciprocity that avoids any perception of unfairness deriving from the developed world's access to the developing world's genetic resources.
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From page 301... ...
It might, for example, cover issues of access to materials in depositories, support a common understanding of the line between research and commercial use, and encourage both the public and the private sectors to make available to developing nations research and advanced materials on as liberal a basis as possible. RECOMMENDATIONS Although proprietary rights may sometimes constitute barriers to the international flow of germplasm, their effects so far have been much smaller than those of barriers imposed by public institutions, including governments responding to the increased value that biotechnology and growing commercial use have placed on germplasm.
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From page 302... ...
302 / Agricultural Crop Issues and Policies Private sector institutions are encouraged to make available their materials in developing nations on as broad a basis as possible. In particular, this includes material that is not currently the basis of varieties being marketed in developed nations and royalty-free licenses for the use of materials with a low commercial potential.
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