navigating the patent maze

Intellectual Property Watch reports on the interests and
‘behind the scenes’ dynamics which influence the design and implementation of
intellectual property policies. A non-profit initiative, Intellectual Property
Watch aims to increase transparency, accountability and fairness in global
intellectual property policymaking.

So far on their site is a newsletter and a blog. 

Yours truly, along with two agricultural economists (Phil Pardey of University of Minnesota and Bonwoo Koo of IFPRI), have published an article in this week’s Science journal.  If you have an account, you can view the article on-line.  Because journals hold the copyrights, I will ask for permission to post a copy here.

Summary:  Much of the debate on the implications of intellectual property (IP) for protecting plant varieties occurs in the absence of an understanding of the specifics of the rights in particular jurisdictions, a practical sense of the rights claimed or granted, and their evolution over time. Moreover, existing information highlights rich-country developments, with little attention to developing countries. This Policy Forum reviews the approaches to plant-related IP protection worldwide, with data on the applications of plant breeders’ rights, and discusses possible implications of IP protection for food production and human health.

Benefit sharing of rewards from inventions based on genetic materials (e.g., plants, insects) collected in developing countries is not only much-talked about but is also mandated by the Convention of Biological Diversity (CBD). The CBD is an international Agreement (although not signed by the United States) that has three main goals: the conservation of biological diversity, the sustainable use of its components, and the fair and equitable sharing of the benefits from the use of genetic resources (See Article 15).

On an individual bases, in 1996, the University of California at Davis, initiated a benefit sharing program with Mali stemming from a patented invention for a disease-resistance gene isolated from African rice. The idea was to license the technology to agricultural biotechnology companies, such as Monsanto and use the income to improve the lives of the world’s poor people.

Over the last 8 years, I have heard many references to this program as a model and ideal moral stance. Yet, as revealed in a lengthy article in the Sacramento Bee , nothing has been resulted in the way of benefit sharing. Sadly, it is a philanthropic failure. In well-researched detail, the article shows just how difficult it is to craft licenses and illustrates many licensing pitfalls. Hopefully, institutions and scientists who want to give back help to the developing world can learn from this well-meant attempt and fashion a workable and successful form of benefit sharing.

CREATE - the Cooperative Research and Technology Enhancement Act - was a bill in Congress that would amend the patent law on the non-obviousness requirement to create a safe harbor for inventions resulting from collaborations or research team efforts where team members are in different institutions.

The bill was passed by both the Senate and the House of Representatives, but must be cross-approved before being sent to the President for signing into law. Now that the Congress has adjourned for the political season, the bill will languish and is unlikely to get passed by this Congress.

The CREATE Act is a response to a Federal Circuit decision (Oddzon Products v Just Toys) in which the Court held that sharing of confidential information could be a reason to find an invention obvious when the inventors weren’t under an obligation to assign their rights to the same entity. Even Congress recognized the unfairness of this situation and its possible chilling of collaborative work.

For detailed information on this important bill, go to the horse’s mouth and read the Congressional Report on CREATE.

Those who know me or have read any of the economics-based publications I’ve co-authored already know that my answer to the question is “usually not”. Rarely in developing countries and not even very much in developed countries (outside of commercial entities). My colleagues (Phil Pardey in particular) and I fear that the “patents are evil” debate detracts from the real issues of research progress, namely funding and infrastructure. Probably nowhere are these problems more acute than in Sub-Saharan Africa (SSA).

A recent article by Beintema and Stads and published by IFPRI (International Food and Policy Research Institute), a Future Harvest Center based in Washington, D.C., underscores the problem. In “Investing in Sub-Saharah African Agricultural Research: Recent Trends“, the authors show that investments in SSA agricultural research have stagnated over the last two decades. Moreover, donor funding (World Bank, various developed countries) and government accounts for essentially all of the research money, which is becoming scarcer, irregular and more donor-dependent. Combined with poor research management and lack of national science and technology policies, there will be further erosion of research capacity as donor funding decreases.