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Fascination of Plants Day 2015 - we made a game about IP and plants!

30/5/2015

A couple of weeks ago we took part in the annual international Fascination of Plants Day. Plant scientists and public engagement folk from around the world organise events and activities that give people the opportunity to learn about plants and see them in new ways, often up close and personal (we would like to make clear at this point that our primary contribution was merely the lifting and carrying of plants! All the actual preparation for the event was carried out by a handful of people working in biology at the University.) What we particularly liked about this event was the opportunity to bring the history and philosophy of science (HPS) to the public, while within a setting that was heavily geared towards the sciences. I won't say entirely science dominated, because the plants were the key points of discussion and public interest, and plants are the intellectual property (broad) of historian and scientist alike. In this way the plants and live bees(!) became something of a meeting point or a buffer for us all. Perhaps it was only because of this day being a celebration of plants (or what we might want to call 'bio-objects' more generally) that we were able to integrate ourselves so easily, and also have a bloody good time!

Knowing that one of the primary aims was to increase interest in the plant sciences amongst kids, we decided to make a game that would give us the opportunity to discuss plant breeding - because creating new varieties is pretty damn cool! - and also how these can become property - which is pretty damn important! To these ends we (and here I should really drop the plural and say Berry made it so he deserves all the credit/blame), made a game designed to A) get something of the essence of how IP works across to children between the years of 10-13, B) allow us to discuss plant breeding, and C) have a wee bit of fun. If you would like to see the game in full, you can download it here and also on our resources page.

Save or Split! - A game about cooperation and competition for 10-13 year olds
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You can get the gist of the game from the pictures below, but in brief, the main mechanic of the game that actually relates to IP are the 'Save' or 'Split' cards that players can use either to help themselves, impede their opponent, or progress the game as a whole (there are only 2 pages of instructions so if you're really interested then have a look!)

Unfortunately we only got the chance to explain the game to a few people (and we didn't meet any kids of the right age), but we did at least get to play it with some of the other volunteers. This helped us iron out some wrinkles, and also made us realise that playing for a reward like chocolate would probably help...Anyway the photograph below is evidence that we were able to at least talk to SOME people. We would highly recommend that HPS people get themselves involved in these sorts of event, they are an exceedingly good opportunity to offer our perspective on science and collaborate with our colleagues outside the humanities.
Many thanks to Dr Nadia Moro, Dr Richard Caves, and Dr Carl Warom who helped us to trial some of the earlier concepts for the game, many of which were bonkers.

You can now watch our conference presentations online!

26/5/2015

The Cultivating Innovation conference was held at the John Innes Centre on 14/4/2015. We are now pleased to announce that videos of almost all of the conference presentations - including the keynote address given by Professor Daniel Kevles - are now available online. You can find them all via our resources page or directly on our YouTube channel.

Below are the titles and abstracts, which are linked to the individual presentations. Thanks again to all our speakers, and those who generously supported the event, namely the Arts and Humanities Research Council, IGNITE funding from the University of Leeds, the British Society for the History of Science, The Organic Research Centre, Plant Bioscience Ltd., and the John Innes Centre itself.

Conference Introduction

Cultivating Innovation: The case for an expanded conception of Intellectual Property
Gregory Radick, University of Leeds

How to promote and protect innovation in seed systems: a farmer-breeder’s perspective
Riccardo Bocci, Associazione Italiana Agricoltura Biologica and Rete Semi Rurali

The seed system approach is by now accepted as a way to describe and analyse the management of seeds within farming systems and in the whole agricultural system. Many scholars agree that formal and informal seed systems are present at the same time even in industrialised countries; the degree of first one or the second one varies according to the crop and the country. The importance of maintaining informal seed systems has been acknowledged by the FAO as a way to increase diversity in agriculture in time and space. In this framework it is urgent to recognise that our IPRs policies have been suited to promote only formal innovation, therefore it is important to adapt our policies to the needs of informal seed systems and find a way to promote informal and incremental innovation done by farmers or communities and to protect it by misappropriations. This paper will present the actual situation and suggest the idea of integrated seed systems with a full recognition of both formal and informal ones, and a new role for farmers in agricultural research. It will also address the importance of guarantee access to plant genetic resources to farmer-breeders within the framework of the International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA). In the end the paper will address a fundamental question for the future of agriculture: are we sure that hyper ownership on PGRFA is the right way to foster varietal innovation?

A commons in the Patent Office: the US Patent Office’s Agricultural Department, 1836-1861
Courtney Fullilove, Wesleyan University

This paper analyzes the US Patent Office’s seed collection and distribution program in the mid-‐19th century, characterizing it as a site of debate over the proper political economy of innovation in the United States. Drawing simultaneously on ideologies of agrarian mutuality, cooperative associations, and global natural science rooted in European maritime exploration, the leadership of the Patent Office carved a commons from a regime largely dedicated to buttressing private property rights in invention. Through the machinery of the US Navy and consular service, missionaries, and American citizens abroad, the Patent Office amassed and circulated the world’s seeds for the benefit of American farmers. Once lodged in the Patent Office, seeds and cuttings were freely available to interested agriculturalists: a model of public research and circulation that persisted in the US Department of Agriculture and in the gene banks of international agricultural research organizations.
    The program was controversial. Advocates supported the federal government’s strong role in introducing new crop varieties. Critics decried it for interfering with the efforts of individual improvers. This paper argues that the material transfers of seed were less important than the precedent they established for agricultural development based on federally subsidized research, exploration, and transplantation. The establishment of these practices made for a seamless transition to a more robust and well-‐funded US Department of Agriculture, setting US agriculture, for a time, on the path of public research.
    The focus of this paper is on moments at which plants were not subject to logics of property rooted in individual innovation, but rather understood as objects of common use. Rather than a simple foil for individual rights of property, notions of commons, collectivity, and mutuality were complex in their own right. At times they were based on contradictory principles of possession and access, allowing sharing for some but not others, and effacing the appropriation of global resources and knowledge to support national development.
    This moment of contingency and contradiction between property regimes is a useful object of study because it helps us understand the ways in which intellectual property laws, including patents, trademarks, and copyrights (as well as the more novel variants of geographic indications, traditional knowledge, and indigenous knowledge) existed among many other political economic strategies for promoting innovation and the production of knowledge more generally. In the mid-‐19th century, public research and private property were collocated in the Patent Office. Only in the early 20th century did seed firms begin to lobby for patent protection to protect new varieties. Moreover, although students of IP law typically focus on legal theory and case law, federal bureaucracy was equally important in setting the terms of subsequent debate about what was and was not subject to intellectual property laws.

Revisiting market failures’ for sustainable innovations in plant varieties: a review of plant variety application trends in India (2007-2014)
Mrinalini Kochupillai, Munich Intellectual Property Law Centre

In a market of free knowledge, knowledge has all the characteristics of a public good. This leads to a ‘free-rider’ problem, resulting in market-failure in the form of sub-optimal (incentives for) creation and dissemination of knowledge in the form, for example, of artistic works and inventive activity. Intellectual property (IP) protection regimes are adopted, inter alia, to address such market failures. This article revisits the market failure theory in the context of plant variety protection regimes. It finds that, unlike knowledge incorporated in other forms of intellectual creations (artistic works, inventions etc.), knowledge contained in formally bred/improved plant varieties are such that do not meet the criteria of non-excludability that characterizes public goods. As a result, intellectual property protection regimes and associated governmental policies in relation to plant varieties can potentially introduce new forms of market failure rather than addressing existing ones. The new market failures that can result from such regimes and policies include, most pertinently, substantially reduced incentive for informal (farmer level) innovations and in situ agrobiodiversity conservation. The rationale for introducing strong IP protection regimes for plant varieties created by the formal (plant breeders’) sector need, therefore, to be re-evaluated. The conclusions of this paper are supported by plant variety application trends under the Indian Protection of Plant Varieties and Farmers’ Rights Act, 2001 (‘PPV&FR Act’).

Open source, open innovation and commons: towards an alternative IP regime in agriculture and plant breeding
Krishna Ravi Srinivas, Research and Innovation System for Developing Countries

Open Source approaches and models are used in life sciences, drug discovery and software. Similarly open innovation is used extensively in industry and service sector. Commons have been developed through pre-competitive collaboration and other means and access to the commons is regulated and IP rights are often part of the access regime. While International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA) has created a sort of commons coupled with access and benefit sharing, commons are proliferating in life sciences. In this paper I contend that these three can be used for developing an alternative IP regime in agriculture and plant breeding. Now the idea of open source synthetic biology is explored in a project to apply synthetic biology in agriculture. Drawing on the literature in open source, open innovation I argue that a combination of these two approaches can result in alternative model of innovation in agriculture and plant breeding. In this model IP rights can be used to promote innovation and sharing rather than to block further innovation or to enclose. I point out how licenses based on GPL and other licenses can be used to further innovation. Highlighting developments in life sciences and using the literature on commons, and peer to peer production I argue that today commons have emerged as important resources access to which is regulated to avoid the problems in free riding and misappropriation. I provide examples of different commons and how access to them is regulated and how these resources are managed. Based on the above points I propose a model of innovation that can be an alternative model of innovation in agriculture and plant breeding and this model can be used to overcome the negative impacts of stronger IP regimes in agriculture and plant breeding.

Insights from the temporary EU marketing experiment – and the marketing of – cereal populations
Bruce Pearce, The Organic Research Centre

Increasing climatic variation has had, and will continue have an impact on crop production and the economic viability of farmers. A way to insure against these impacts is to increase the diversity on farm. Increased genetic diversity within the crop can be a component of this. Genetic diversity can be delivered by growing a greater number of crops or varieties separately or as a mixture or by growing composite cross populations (CCP). Since 2001 the Organic Research Centre has developed CCPs of winter wheat in organic and low input systems. Aligned with this work are activities with UK and EU policy makers to address the EU legal framework that would allow for the marketing of populations. After nearly 15 years of work we are now at a point where some cereal CCPs can be marketed under a temporary marketing experiment. The paper will cover the production and development of the populations as well as an analysis of their performance along with insights into the development of new seed regulation policies as well as our initial experiences of working within the new marketing experiment.

Protective pictures: the role of the image in plant patents
Xan Chacko, UC Davis

The patenting of biological material attempts to fix or capture a moment in an organism’s long continuous process of evolutionary change. As the first instance of such fixation, the US Plant Patent Act of 1930 (PPA) guaranteed the intellectual protection of new asexually reproduced plants. In doing so, it heavily relied on visual representations to demarcate both the novelty of the invention and the ingenuity of the inventor. While utility patent applications need to show both ‘novelty’ and the ‘inventive step’, breeders in the early twentieth century could not scientifically explain the process through which they had produced the novelty they sought to protect through a plant patent.
    In this paper, I claim that for the PPA, the ability to graft, propagate, and thereby retain the salient novel features of the plant stood in for the inventive step, since, as asexual organisms, these plants required botanical intervention to persist. Consequently, human expertise (rather than inventiveness) becomes an inextricable portion of the patentable invention itself. Taking inventiveness out of the equation, the images of the plants provided proof of their uniqueness, thereby ensuring their patentability based purely on novelty. Images were crucial to the early patents because inventors did not have to show the method of production of the novelty but only describe the novel features, which the pictures did with aplomb.
    As the IP protection of plants has changed through the twentieth century, the images that accompany the patent applications have changed too. From colour photographs of the new varieties to images of electrophoresis gels showing specific gene markers that are claimed to explain the phenotypic differences being patented, images have taken on a more explicative role in patent applications. By comparing the visualisations used in early plant patents to those accompanying more recent utility patent applications, and by tracking the changes in the patent illustration with respect to their accompanying text, I demonstrate the shift from pure description to explication of the underlying innovation. I ask: How do patent visuals fit into the longer history of representation in scientific practice? How has the role of the image in the patent changed with respect to innovations in the science of plants, patent law, and technologies of visualization?

Agricultural transitions in proprietary regime(s): IP law, social practices and interests in late modern Greece (1950-2015)
Stathis Arapostathis and Kiriaki Klokiti, University of Athens

The paper provides an overview of the transition of farming with a focus on plant breeding practices and the management of knowledge in agrochemicals in Greek Agriculture from 1950 to the present. We argue that the intensification and mechanization of agriculture in rural Greece co-evolved with proprietary regimes of plants, both patents and trademarks as well as with scientific awards since the 1960s. Patents were sought for agrochemicals while seed circulation and economy of plant breeding were based mostly on trademarks. The period from 1920 to 1987 was a period of transformation of the Intellectual property culture of Greece with major reforms that began with the 1920 industrial property law and completed after more than 60 years with the ratification of the 1973 treaty and the establishment of the European Patent Office and the 1987 Patent Law. The transformation and transition from a regime of patents as privileges to a regime of patents as rights that took six decades to be completed was a socio-institutional change that evolved co-currently with the European integration of Greece. The Europeanization of the country framed visions, rhetoric, public discourses, and public policies while excluding alternatives and marginalizing social practices well embedded in the local traditions and culture.
The Greek agriculture sector faced a radical change and a paradigm shift with science and technology to play a prominent role in the transition. Agrochemicals, pesticides, new machinery, new science-based plant varieties, large scale irrigation works, became the landmarks of this transition. Intellectual property protected agrochemicals (patents) and plant breeds (trade marks) configured the practices of farmers and linked them with a part of the economy that was controlled by private sector interests and most importantly by large foreign or native companies. Over the last 20 years this model has begun to be questioned due to political, economic and cultural reasons. Organic farming emerged as an alternative –yet marginal- way of managing natural resources and commons. It was linked to a different way of managing plant varieties and of plant breeding along with a different way of developing small scale agriculture well integrated in the environment. The case of Pelitis is studied as such a case and as an alternative exemplar of classifying, preserving and conducting plant breeding and farming outside proprietary regimes.

Conference Keynote

From public to private goods: the evolution of plant properties in the American political economy
Daniel Kevles, Yale University

Cultivating Innovation & the Breeder´s Exception to Patent Rights: Finding a Link

19/5/2015

Today we bring you a post written by one of our Academic Advisors, Dr Viola Prifti, who recently completed her PhD thesis on plants and intellectual property law. We set her the challenge of explaining her work in a way that most general readers could follow. Our sincere thanks to Viola for taking the time to do so.

When I was first asked to be an academic advisor for “Cultivating Innovation” I had just finished my doctoral thesis, which focused on a legal and economic analysis of the compliance of the breeder´s exception to patent rights (so-called breeding exception) with article 30 of the Trade-Related Intellectual Property Agreement (TRIPS Agreement). This may appear to some as insignificantly related to “Cultivating Innovation’s” aim of increasing public awareness on the role of intellectual property in plant science and farming. The breeder´s exception to patent rights is, indeed, an exception mainly used by breeding companies that need to freely use patented materials in their breeding lines for the development of commercial products. Analyzing its compliance with the TRIPS Agreement may additionally appear as a pure legal issue. So, what room for public awareness, plant science, and farming? In an interconnected world as the one we live, every legal issue deserves public awareness. This is especially so when legal issues affect an important component of our daily life, such as food. As a matter of fact, the majority of our diet, including the meat we eat, is based on cultivated plants. The link with plant science is equally evident; plant breeding started as a trial and error process and it evolved into an industry. Plant science and its industrial applications can only exist in symbiosis. Therefore, laws of interest for commercial plant breeders also affect plant breeding as a science. But what about farmers? Farmers are not the beneficiaries of the breeding exception. The exception allows only plant breeders to freely use patented biological material into their breeding lines, and to commercialize the end products if they are free from patented elements. Farmers, however, may indirectly benefit from the breeding exception. This exception facilitates breeders to undertake more breeding programs and consequently, put more varieties into the market. This means that farmers can have access to a greater number of varieties.

So what of my thesis? As mentioned above, my research concerned an analysis of compliance of the breeding exception with article 30 of the TRIPS Agreement. This article allows countries to adopt patent exceptions provided that they are limited, do not unreasonably conflict with a normal exploitation of the patent and do not unreasonably prejudice the interests of the patent owner, taking account of the legitimate interests of third parties. The vagueness of the language of article 30 is the main problem I identified in order to proceed with the analysis of compliance. This is one of the most important roles that legal scholars take on in their work. To offer a solution to this problem, I proposed to analyze the following research question: "What type of breeding exception to patent rights is compliant with article 30 of the TRIPS Agreement?" My conclusion was that a limited breeding exception (that allows breeders to use patented material to breed new plant varieties) as incorporated into the national patent laws of France, Germany, the Netherlands, and Switzerland is compliant, whereas a comprehensive breeding exception (that allows breeders to commercialize varieties with patented material) currently under discussion in the Dutch Parliament may be compliant with article 30 of the TRIPS Agreement under certain conditions. One important condition is its limitation to the 64 crops covered under the Multilateral System of the International Treaty for Plant Genetic Resources for Food and Agriculture. These conclusions are founded on a methodological approach which rests on the concept of balance between the incentive to innovate granted by intellectual property rights and the benefits that accrue to society by accessing patented material for plant breeding purposes. This concept was applied to the study of legislation, case law, and legal principles. An elaboration of this concept as found in economic theory, allowed me to conclude that the adoption of a limited breeding exception to patent rights does not diminish the incentive to invent. On the contrary, it increases innovation in plant breeding and does not negatively affect the biotechnological sector. With respect to the comprehensive breeding exception, I observed several concerns on the preservation of the incentive to innovate by patent holders. I identify the lack of empirical studies that can shed light on a relationship between patent protection, R&D decisions, innovation, and breadth of patent exceptions as one important reason for an inconclusive argument on the incentive to innovate.

Another relevant element for the analysis of both hypotheses was based on the characteristics of national innovation systems. I opted for a flexible reading of the TRIPS agreement in order to allow countries to promote issues of public interest in plant breeding and human rights considerations such as the right to food. This interpretation finds support in the principles and objectives of the TRIPS Agreement as well as in international agreements which highlight the importance of plant breeding for society. Moreover, it takes account of the concept of balance in patent law between the concern to recoup R&D investments and benefits of disclosing innovations for the benefit of society. This approach allowed me to conceptualize the breeding exception as a new type of permissible exception to patent rights. This exception is an example of how intellectual property rights can be amended in order to promote innovation and make its outputs available to society. You can learn more about the breeding exception, its legal and economic justifications as well as its compatibility with the TRIPS Agreement in my upcoming book, which will be published by Springer in 2015.

You can read more from Viola on her blog 'Plant Variety Protection: discussing, sharing, and advancing research'. She is currently working on a paper discussing US free trade agreements with South American countries on plant variety protections.

Fascination of Plants Day 2015 - we made a game about IP and plants!

You can now watch our conference presentations online!

Cultivating Innovation & the Breeder´s Exception to Patent Rights: Finding a Link

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