12:49 PM Jun 10, 1997
PATENTS ON PLANTS, ANIMALS DON'T PROMOTE INNOVATION
by Lawrence Busch* TWN Special Feature Penang, 9 Jul (TWN) -- Biotechnlogy industry interests normally call for an extension of patents to plants and animals as a requirement to stimulate investments in biotechnology research, and to ensure wide distribution of the benefits from such research. But will such an extension serve this purpose? The legal theory behind patents is quite simple. Patents are contracts between the state and the inventor, in which the inventor is guaranteed a monopoly for a limited period of time, in return for a full disclosure of the invention. In principle, both the inventor and the public benefit from this. But evidence suggests that an extension of patent law to higher organisms is not likely to serve the public good for several reasons. There is virtually no evidence that patents actually stimulate inventions. Studies such as Leonard Reich's 'The Making of American Industrial Research (Cambridge, 1985), suggest that patents are used to block other firms from entry into the market. For example, in part as a result of the extension of plant variety protection and willingess of US courts to extend utility patents to organisms, the number of independent seed companies worldwide has declined markedly over the last several decades. Large petrochemical and pharmaceutical giants have extended their corporate reach into the seed market. Such oligopolies often slow down rather than speed up the process of invention. Patent law was designed with mechanical and chemical inventions in mind. In those areas, the distinction between discovery and invention is clear: tractors and corn flakes are clearly inventions. They are nowhere to be found in nature. In contrast, biological 'inventions' often lack such an inventive step. They involve only the recombination in novel ways of genetic material that already exists. The description provided with biotechnology patents is quite useless to someone who does not have access to the genetic material it describes. As noted above, patent law is supposed to make the knowledge about how to create an invention public. But this is essentially impossible in the area of biotechnology as the ability to create new genes is still a dream. While most plant varieties are replaced after just a few years, the duration of protection of utility patents is about 20 years. Utility patents prohibit research using patented material. Thus, they may slow down invention or alternatively, create enormously complex cross-licensing arrangements, whereby a given plant or animal variety might be covered by dozens of patents. Granting a monopoly over such an extended period of time prohibits others from using the knowledge covered by the patent to develop still better varieties. The basic principles of biotechnology and genetic engineering were developed in the public sector. Without huge public investments in molecular biology, the biotechnology industry could never have developed at all. It has made, and will continue to make, only marginal improvements over what was done in the public sector. In a certain sense then, one can argue that patents for biotechnology inventions, required that the public pay twice for the necessary research. Is this far and just? There is no particular reason to privatise public goods. Public plant breeding has succeeded in raising yields. Moreover, public sector breeding, atleast in principle, is accountable to public concerns. Public breeding has managed to cover the range of agricultural commodities and to develop cultivars appropriate to a wide range of agro-ecological zones. Private breeding, as is evident from looking at plant variety protection certificates issued, will tend to focus on the commodities and areas in which the most profit can be made. The legal requirements for utility patents demand uniformity. Such uniformity is not desired in the field, since it may well increase the susceptibility of plants and animals to pests and diseases. Developments of organisms that are more genetically diverse, but have similar characteristics of interest to users, are actively discouraged. The extension of patent protection to plants and animals neglects the fact that not all the nations of the world have equal ability to make use of the patent system. In point of fact, only a handful of developing nations have the public or private capacity to enter into such competition. To do so demands both a significant pubic sector research base and significant private capital to develop patentable materials, to file patent applications and to protect those patents against infringement. Indeed, even in the wealthy nations of the world, small companies often find that their patent rights are unenforceable in the courts -- simply due to the wealth of their adversaries. If we must extent intellectual property rights to living organisms, then we need a legal form designed specifically for them. Such a system might resemble the current plant variety protection system, although it too suffers from an insistence on distinctness, uniformity and homogeneity, which are qualities that may be of little value outside the legal arena. A better system would focus on agronomic characteristics, food quality, and nutritional value, and permit the unrestricted use of protected material in research. (* Lawrence Busch is Professor of Sociology at Michigan State University in the United States)