Intellectual Property Rights and Plant Biotechnology (1997) / Chapter Skim
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2 Summary of Forum Proceedings
2 Summary of Forum Proceedings
Pages 3-24
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From page 3... ...
The result is a new field plant biotechnology that is completely transforming the way plant science is performed. The second factor is that new federal patent legislation, court decisions, and 3
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have greatly strengthened and broadened the intellectual property protections available for biological inventions. In the 1980s, for example, it first became possible to obtain a utility patent the strongest patent in terms of the level of protection it offers on new types of plants or animals, whether created by traditional breeding practices or genetic engineering.
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Because plant biotechnology is so new and is evolving so quickly, businesses find themselves much more reliant on basic research being performed in university and government laboratories than is usual. Conversely, researchers in university and government laboratories find they must ask private companies for permission to use basic tools they need to do their jobs.
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The forum participants were asked to address such questions as: . Do current means for protecting intellectual property rights adequately encourage both scientific progress and commercial development?
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"That patent is quite clear and available to all," noted Alan Bennett, associate dean of plant sciences at the University of California-Davis, at the forum. Stanford University, which holds the Cohen-Boyer patent, offers relatively inexpensive licenses to any institution wishing to do genetic engineering research.
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The U.S. Department of Energy, as part of a national program to develop renewable energy sources, would like to see 200 million tons of such biomass produced each year by the year 2020, which will require between 20 million and 40 million acres to be planted with trees or other energy crops.
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Steven Strauss, a forest geneticist at Oregon State University who leads a university-government-industry consortium seeking to develop transgenic trees for commercial use, such as pulp and paper or biofuels, described the situation this way: "Most of the licensing agreements we get, even on a researchonly basis, try to censor, delay, or bias publications that will come out of privately funded research that we do. So we have fights that often take months or years to resolve." That slows progress in the field and also has serious practical implications for the researchers themselves.
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Finally, many scientists also worry that the pressures for research to have short-term payoffs will push science away from the emphasis on long-term basic research that made the genetic engineering revolution possible in the first place. This is particularly troubling because federal funding for basic research has not been increasing as much as in the past.
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toxin gene to make plants resistant to insects at more than 20 times its "real" assets. Because intellectual property is of such overriding importance to small companies, a firm's agenda and strategies are often dictated by patenting considerations, John Bedbrook, executive vice-president of DNA Plant Technology Corporation (recently acquired by Empressas La Moderna)
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4 INTELLECTUAL PROPERTY RIGHTS AND PLANT BIOTECHNOLOGY is going on in a small company." Finally, he noted that companies will often follow a particular line of research even after it's clear that the research doesn't fit into their overall strategy simply because of the value of the intellectual property. "Frequently, companies will pursue a research objective that was initiated in good faith under the auspices of the overall business strategy, but ultimately pursue it because of its intellectual property value as trading chips," said Bedbrook.
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This concern about access to enabling technologies is quite new to the world of agricultural research, Robert Fincher of Pioneer Hi-Bred International noted. "Prior to the development of biotechnology, there was little to consider about intellectual property in the seed industry.
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Agracetus, for example, will not allow other companies to do research on modifying the cotton fibers strengthening them, since it wants to keep that potentially lucrative application for itself; the company does, however, make licenses available for other research purposes. Perhaps even more frustrating than monopolies are situations in which patent rights are not clear because they are being fought out in court.
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Summing up the effects of intellectual property on the agricultural biotechnology business Bedbrook said, "Right now it is a significant depressant in startup and innovation in our industry because people cannot see their way clear to developing business." Steven Strauss of Oregon State, who leads a forestry consortium, echoed Bedbrook's assessment: "The scenario out there is an absolute mess. The complexity and the costs stifle small companies and small crops from getting into the business.
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Furthermore, several industry representatives said, the process is made even harder by the tendency of university technology transfer offices to overvalue their intellectual property. As Robert Fincher explained, the value of a gene that could be inserted into a variety of corn or other seed crop tends to look much different to people at a university whose entire focus has been on that single gene than it does to their counterparts at a seed company: From the perspective of a seed company, we realize that the hybrid we put on the market is the product of two inbreds that have undergone maybe 10 years of breeding and testing, and they are dependent on previous breeding and testing and on however many genes there are in a corn plant 50,000 to 100,000, somewhere in that range.
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"There can be a failure to make the distinction between an invention and a final product," said George Jen, an associate with Pennie and Edmonds LLP. "Not every invention leads to a good product, so there is considerable financial risk at the business end of investing and trying to develop an invention into a valuable product." The tendency to undervalue risk can make technology transfer offices difficult to negotiate with, said Ilya Raskin, a plant physiologist at Rutgers University.
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The large companies have different problems. I work with Pioneer Hi-Bred and I work with Phytotech, and I have never seen any differentiation between those two done at the level of technology transfer offices." The companies hurt most by the failings of the technology transfer system are the smaller ones.
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Other things can be dealt with if people only realize what sorts of traps await and plan ahead to avoid them. For example, Steven Strauss of Oregon State University noted that scientists in his forestry research consortium try to plan their work to minimize licensing complications down the road.
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Nonetheless, universities will almost certainly be asked to tie some of their research more closely to commercial purposes than has been the case in the past. With this in mind, Laura Meagher, associate dean of research at Rutgers, suggested that "we need some new sort of relationship between companies and universities, something that encourages long-term basic research in universities and yet encourages research that is conducted in general directions that will be of use to various industry sectors in the future." This will be much easier, Meagher said, if the various players in agricultural biotechnology could learn to see the world from one another's perspective.
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