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Guest post - Plant variety protection for developing countries

16/10/2015

This week another of our Academic Advisors, Dr Viola Prifti, has generously contributed a post on a recent conference on plant intellectual property and explains some of the research that she delivered there, written in a manner suitable for the general reader. The research in question is not yet complete, so any and all questions will be most welcome. More importantly, Viola is also currently looking for research posts, and would greatly appreciate your passing on any suitable openings regarding IP, patent protection, and plant breeding/food security.

Recent years have seen the proliferation of different forms of intellectual property rights on plant varieties (patent rights, plant breeder’s rights or sui generis regimes). One reason is found in numerous trade agreements with developed countries (mainly the US and the EU), which require developing countries to adopt Western standards of protection for plant varieties. The preferred standard of protection appears to be the grant of plant breeder’s rights as provided for in the 1991 Act of the International Convention for the Protection of New Varieties of Plants (UPOV 1991). Many African and Latin American countries are currently facing the challenge of adopting UPOV 1991-compliant laws. Will UPOV 1991 incentivize or deter their agricultural development? These issues were presented and discussed in a panel dedicated to plant variety rights at the 34th ATRIP annual conference in Cape Town which took place a fortnight ago. The ATRIP conference is organized by the International Association for the Advancement of Teaching and Research in Intellectual Property and brings together distinguished professors and researchers in IP from all parts of the world (http://atrip2015.com/programme/). The first day of the conference hosted four panels and it was a pleasure to notice that one of them was dedicated to plant variety protection. This indicates the growing importance that this topic is gaining in academia, and I was pleased to be amongst the panelists alongside Prof. Coenraad Visser and Prof. Chidi Oguamanam. While the professors explained the difficulties of implementing UPOV 1991 in Africa and its implications for farming and food security, I illustrated the challenges that some Latin American countries are facing in adopting UPOV 1991 provisions and offered some recommendations in order to support the development of the plant breeding sector in these countries.

I chose to focus on three countries: Chile, Colombia, and Guatemala. These countries proposed plant variety laws based on UPOV 1991 under the free trade agreements concluded with the US, but the bills were revoked by the Chilean President, the Colombian Constitutional Court, and the Guatemalan Parliament. The laws were believed to negatively affect smallholder farmers and indigenous people. Social discontent was the cause for revoking the proposed laws as well as for petitions in front of the Constitutional Courts of the aforementioned countries. This is the first time that Constitutional Courts have dealt with plant breeder’s rights laws in the world; therefore, I perceived the importance of the topic. It is firstly very important to note that the proposed laws in these Latin American countries went beyond the standards of UPOV 1991 and significantly restricted the freedom of farmers (the laws were often referred to as “Monsanto laws” to indicate the strong position they conferred to large commercial breeders). The arguments presented by the parties to the Constitutional judges brought into light the need to take account of the effects of plant breeder’s rights on farmers’ and indigenous peoples’ innovations. Hence one of the questions in my paper is how to find a legal framework that incentivizes commercial plant breeding and at the same time preserves traditional farming practices. I try to find an answer by analyzing the interests at stake (different innovation models and market power of stakeholders) and rely on economic theory and inconclusive empirical studies. I also delve further into the relation between IP and trade and make an attempt to observe who has benefited from plant variety protection in Chile. From the limited amount of available data, it appears that US and EU breeders have been awarded the greater proportion of plant variety certificates. Chilean breeders seem to be more active in breeding crops of national interest (potato, maize) and it is also interesting to note that the Chilean breeders are mainly represented by public institutions and one private breeder.

At this point, the question I ask is whether the economic theory on the positive role of IPRs in innovation rates finds an application in terms of the issue at hand. The analysis allows me to offer some recommendations for adopting UPOV 1991-compliant national laws while permitting farmers and indigenous peoples to continue their ancient practices of saving, resowing and exchanging seed. In this regard, an examination of UPOV flexibilities was mandatory. Despite its rigidity, the UPOV system has a few exceptions which can be used to favor farming practices. Building upon existing work by Bram de Jonge and Peter Munyi in Africa, I suggest Latin American countries distinguish between different types of farmers in order to build a plant variety protection system that better responds to their national interests.

To follow more of Viola's research as it progresses, and to contact her, please visit her website:
https://plantvarietyprotection.wordpress.com/

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Guest Post - A new measure for intellectual property rights systems in agriculture

24/8/2015

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Though the Cultivating Innovation project has now ended, we promised/threatened that we would be back with follow-up posts and further discussion of all things plants and IP. This week Mercedes Campi and Alessandro Nuvolari have taken the time to introduce some of their research to a wider audience, more specifically their recently published index of intellectual property rights tailored for agriculture.

Intellectual property (IP) protection systems for plant varieties are the outcome of a complex historical process that has taken place at a differential rate across the world. Broadly speaking, there are two main forms of IP protection for plant varieties: patents and plant breeders’ rights (PBRs). Both of them grant a temporally limited exclusive control over the propagating material and the harvested material of a new plant variety. However, a PBR is a form of IP protection especially designed to protect plant varieties and, as such, it takes into consideration some of their specific attributes. Some countries have neglected for years the consideration of plant varieties as subject of IP protection. Others early provided different instruments for their IP protection, including patents. Others have adopted sui generis systems that consider the specificities of plant varieties. The heterogeneity in the evolution of the patterns of legislation suggests that the construction of an indicator of intellectual property rights (IPRs) for plant varieties may contribute to enhancing our understanding of the effect of IPRs on agriculture.

The ratification of the agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) in 1994 has resulted in the adoption of tighter IPR systems, also affecting sectors that were not subject of intellectual property protection until recently. Moreover, developing countries with labile regimes or without IPR systems have recently adopted strong IP protection to comply with the demands of TRIPS. The resulting process of strengthening and harmonization of IPR systems has raised several concerns. In agriculture, IPR systems and their social and economic effects are a particularly controversial issue and the assessment of the merits and limitations of different IPRs regimes in this domain is particularly complex.

A proper appraisal of this problem requires consideration of an intricate array of thorny policy issues, ranging from the suitability of patents versus sui generis forms of intellectual property protection as the most appropriate incentive system for stimulating innovations, to the moral and ethical aspects revolving around the consideration of living organisms as inventions. Furthermore, recent developments in molecular biology applied to agriculture have contributed to increasing the complexity of this landscape. Genetically modified varieties may now be regarded as composed by different elements (the plant variety itself and its related gene), which can be protected by different types of IPRs and can even be owned by different actors. In this way, plant breeding has become an economic activity that is at the very core of the interests of major multinational companies involved in the production of genetically modified seeds. These developments have inevitably triggered conflicts, disputes and lobbying actions around intellectual property (IP) protection for seeds.

Several episodes illustrate the significance that intellectual property rights for plant varieties and agricultural products in general have attained in the world economy. In 2005 and 2006, Monsanto began a systematic campaign of infringement suits against importers of Argentinian soybean products and by-products to Europe. In brief, the root of the controversy was that Monsanto’s patent on the “Roundup Ready” (RR) soybean gene had been denied in Argentina but it had been granted by the European Patent Office (EPO). Thus, Monsanto argued that imports from Argentina of soybean related products containing the RR gene were liable for infringement. Monsanto was successful in obtaining the impoundment of several shipments of soybean-related products in Spain, the UK and the Netherlands. Soybean and its by-products were and still are the major export staple of Argentina (representing more than 50% of agricultural exports). To date, both a UK court and the European Court of Justice have ruled against Monsanto. To cite another example, in 2012, the United States and Colombia signed a trade agreement establishing that Colombian farmers could only use “certified seeds”, effectively prohibiting the widespread practice of self-reproduction of seeds. This decision triggered a wave of major protests, strikes and demonstrations all over the country, which finally forced the government to suspend the infamous “seed law”.

In a recent article: M. Campi and A. Nuvolari, (2015), “Intellectual property protection in plant varieties. A worldwide index (1961-2011)”, Research Policy, Vol. 44 (4), 951-964, we have proposed a new index that provides a synthetic quantitative characterization of the relative strength of IP protection on agriculture at the country level for 69 developed and developing countries for the period 1961-2011.

The index has been constructed by means of a detailed study of the historical evolution of the legislation in each country. Our approach has been thoroughly comparative from the outset: we have tried to identify the key-features characterizing the differences of IPR systems for plant varieties at the country level and we have developed a simple approach for transforming these features into quantitative indicators. The countries included in our sample were members of the UPOV convention by 2011. These countries have IP protection systems that are characterized by a rather similar basic legal framework, which follows certain guidelines provided by UPOV and TRIPS. Thus, they have systems that are likely to be compared. The index considers the elements that, within this common framework, tend to vary more from country to country and over time. The five components of the index are: i) ratification of UPOV conventions, ii) farmers' exception, iii) breeders' exception, iv) protection length, and v) patent scope. Subsequently, we have aggregated these indicators in a composite index. For any country in a given year, the index can take a score from 0 to 5 with higher scores indicating stronger intensity of IPR protection (it is possible to access the full data of the index for the panel of countries here).

Although IPRs are believed to be incentives for innovation activities, their effect is not clear neither from a theoretical perspective nor from an empirical point of view. This is because the effect of IPRs is technology and sector specific and also depends on the development level of countries. Being a quantitative indicator of the relative strength of IPR systems, we hope that the index will be a useful tool for unravelling broad patterns of correlation between IPR systems and indicators of innovation and economic performance such as R&D investment, productivity, technology transfer, trade and GDP. We have already used this index to study the effect of IPRs on trade and mergers and acquisitions in the agricultural sector and we have ongoing research projects using the index to address the effect of IPRs on agricultural productivity. In the article, we also provided an exploratory appraisal of the connection between our index and other variables and indicators by means of two econometric exercises. In the first one, we investigated the possible determinants of the strength of IP protection for plant varieties at the country level. In the second one, we examined the correlation between the index and agricultural production. The evidence we found is consistent with the notion that IPRs do not affect developed and developing countries in the same way.

In sum, we hope that the construction of a new indicator explicitly focused on IP protection in agriculture will be a useful tool for researchers interested in assessing the effects of IPRs on innovation, growth, technology transfer, trade and productivity in this sector.

ALESSANDRO NUVOLARI
Associate Professor of Economic and Social History at Sant’Anna School of Advanced Studies, Pisa. His research interests are mostly focused on the role played by science and technology in the emergence and consolidation of “modern economic growth” with a particular focus on the Industrial Revolution in England. At the moment, he is also studying the relationship between intellectual property systems and economic performance both in historical and contemporary contexts.

MERCEDES CAMPI
PhD in Economics from Sant'Anna School of Advanced Studies; Pisa, Italy. Master of Historical Research of the University of San Andrés. Degree in Economics from the University of Buenos Aires. Researcher at the Interdisciplinary Institute of Political Economy at the University of Buenos Aires IIEP-Baires (UBA-CONICET). Previously, research fellow at Laboratory of Management & Economics (LEM) & Institute of Economics, Sant'Anna School of Advanced Studies. Research interests: Technological Change; Innovation and Economic Development; Intellectual Property Rights; Agriculture; Biotechnology.

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Teaching materials and project sign off...for now!

11/8/2015

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We are pleased to announce our teaching materials are now available on our resources page. These explain intellectual property within the broader context of intellectual ownership, adopting and adapting the IP-narrow/IP-broad framework developed by historians of science Gregory Radick and Christine MacLeod. They were written with A-level students and first year undergraduates in mind, but will hopefully prove stimulating for anyone interested in rethinking or rediscovering what makes intellectual property an important and exciting topic.

While initially we had planned to design these materials specifically for biology students, we eventually made them more general, firstly because the key curricula we were working with (in biology) were undergoing revision, but also because the aspects of intellectual property that we wished to explain could be applied to any given subject, so specialisation at this point was not necessary. There are two materials. The first is a pamphlet, which explains what intellectual property might mean provided we analyse its component parts, which are otherwise left to overlap. The cover features a striking image of Damien Hirst's For the Love of God, which the artist was kind enough to allow us to reproduce for free. To those who may not know, this is an interesting object for thinking about intellectual property, and one that we hope students will find particularly stimulating. We were inspired to use this artwork thanks to reading Putting Intellectual Property in its Place by Laura J. Murray, S. Tina Piper, and Kirsty Robertson. The second teaching resource we have provided is a set of discussion prompts and tasks for teachers to use. They introduce to students:

What a concept like intellectual ownership is composed of.
The ways in which ownership claims influence their world.
The positive and negative consequences that can follow from having a strong sense of ownership over ideas/techniques/technologies etc.

We would greatly appreciate any feedback that you might care to offer having read these materials, and if you plan on using them yourself, please do get in touch.

The Cultivating Innovation project, funded by the AHRC, has now come to an end. This is not however an end for this website, or indeed necessarily the aims and goals of the project itself. After all, you can relive the interdisciplinary conference whenever you so wish via YouTube. The project researcher, Dominic Berry, will continue to write the occasional blog post on this site and make use of the community established on Twitter, as he continues to investigate IP in contemporary bioscience from a historical perspective. More specifically he will be engaged as a Research Fellow on the 'Engineering Life' project (led by Jane Calvert), looking at the ways in which synthetic biologists are managing their intellectual property. Gregory Radick will be further exploring the IP-narrow/IP-broad dynamic, mainly through a closer study of how Mendelian genetics came to be prized as one of the most productive sciences of the twentieth century, but also by revisiting the story of human gene patenting, expanding on his first paper on this area. Graeme Gooday will be continuing to develop his research into the history of technology and intellectual property beyond his award winning Patently Contestable, co-authored with Stathis Arapostathis. In particular he will be building on his more recent Rethinking Patent Cultures project, which will soon begin to yield new edited collections, including a volume dedicated to global patent cultures from a historical perspective.

Lastly it remains for us to thank all of our collaborators and academic advisors. We wish to give particular thanks to Bruce Pearce of the Organic Research Centre, who has been an excellent collaborator and provided insights that Berry in particular benefited from greatly. Mercedes Campi has been a great friend to the project, and provided numerous blog posts on her research and up to date information about the ever shifting world of IP (and we hope to host much more of her work soon), while Mrinalini Kochupillai and Lindsay Gledhill provided extensive and excellent feedback on the teaching materials (all faults remain Berry's!) Mike Ambrose and Sarah Wilmot were crucial to making the international conference, hosted at the John Innes Centre, a success, while both also gave generously with their time and expertise (in the contemporary plant sciences and the history of the plant sciences respectively).

That's all for now folks. We hope you've enjoyed it.

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

30/5/2015

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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
File Size:	763 kb
File Type:	pdf

Download File

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.

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You can now watch our conference presentations online!

26/5/2015

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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

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

19/5/2015

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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.

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Update: Conference and the Naked Genetics Podcast

29/4/2015

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Hello dear readers! It's been a little while since we've posted about the project, thanks to the tonne of things we've been up to. The most important is that we held our international and interdisciplinary conference two weeks ago over at the John Innes Centre. We heard from plant breeders, lawyers, development experts, historians, and the plant science folk who made up the audience. We are currently in the process of editing the videos of all the conference papers, including the keynote address given by Daniel Kevles, so we won't provide a summary of them in this post. Here we simply wish to thank all our speakers, not only for sharing their work, but for incorporating IP-narrow/IP-broad language and concepts into their papers where they could. You can read an excellent summary of Kevles talk on Matt Holmes' blog, which it should be noted is a great read on all topics environmental, planty, historical and scientific.

Professor Daniel Kevles (Yale University) giving the keynote address 'From public to private goods: the evolution of plant properties in the American political economy'. 14/4/2015

In addition our Project Researcher, Dominic Berry, has ruined an episode of the Naked Genetics podcast, which is hosted and run by Dr Kat Arney, who we would also like to thank here, not only for helping spread the Cultivating Innovation word but for being generous and supportive as Dominic cheese-grated his mind on a microphone. The episode is dedicated to 'Patenting and Preserving Genes' and also features an interview from Mike Ambrose of the John Innes Centre. Mike alongside the JIC archivist and historian Dr Sarah Wilmot helped to organise our conference, and put together a display of archive material related to the history of intellectual property in UK plant science. Our thanks to they also!

Upcoming on this blog:

Viola Prifti's thesis summary and her view on the most important issues in IP and bioscience today.
The Fascination of Plants day (we are joining a team of plant scientists from Leeds for this event).
Conference videos and abstracts.
Educational materials - they are taking shape and will be available to download before the end of May.

As ever please do get in touch if there is anything you would like to know more about.

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REGISTRATION NOW OPEN! - Cultivating Innovation Conference 14/4/2015

27/2/2015

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Cultivating Innovation: How (and How Not) to Think About Intellectual Property in Agriculture and Plant Science
A one day international and interdisciplinary conference, hosted at the John Innes Centre.

To register for the conference, please visit:
http://store.leeds.ac.uk/browse/product.asp?compid=1&modid=1&catid=630
REGISTRATION CLOSES 31st MARCH

Registration provides each delegate with a conference pack, refreshments (tea/coffee) throughout the day, buffet lunch, and entry to the wine reception following the keynote address by Professor Daniel Kevles.

UPDATE - Travel bursaries for first 10 postgraduate/non-academic attendees to register, up to £50 each.

We are also pleased to announce that up to 10 postgraduate/non-academic bursaries have been made available. The first 10 postgraduate/non-academic attendees to write to Dominic Berry d.berry@leeds.ac.uk will be able to claim up to £50 for their travel expenses, provided they supply proof of purchase. (The definition of non-academic is simply that you do not work at a university or research institute). Email Dominic in advance and he will hold your bursary for up to 24 hours, allowing you time to register. If you do not register in this time, it will be made available again for other postgrad/non-academic attendees.

Conference Programme

10:00-10:30: Welcome tea/coffee

10:30-10:45: Gregory Radick (University of Leeds) on the Cultivating Innovation project and IP-narrow/-broad

10:45-12:15: Session 1 (papers will each be 20 minutes long, with 10 minutes for questions)

Laura Biron (University of Kent) – ‘The objects of property’

Barbara Fleck (Marks & Clerk) – ‘Protecting plant science and innovation: a patent attorney’s perspective’

Riccardo Bocci (Associazione Italiana Agricoltura Biologica) – ‘How to promote and protect innovation in seed systems: a farmer-breeder's perspective’

12:15-13:00: Lunch

13:00-14:30: Session 2 (papers will each be 20 minutes long, with 10 minutes for questions)

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

Krishna Ravi Srinivas (Research and Information System for Developing Countries) – ‘Open source, open innovation and commons: towards an alternative IP regime in agriculture and plant breeding’

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

14:30-15:00: Break

15:00-16:30: Session 3 (papers will each be 20 minutes long, with 10 minutes for questions)

Sebastian Pfeilmeier (The Sainsbury Laboratory) – ‘Relevance of patents for translational plant biology: the view from the lab’

Xan Chacko (UC Davis) – ‘Protective pictures: the role of the image in plant patents’

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

16:30-17:00 Break

17:00-18:00 Keynote address

Daniel Kevles (Yale University) - ‘From public to private goods: the evolution of plant properties in the American political economy’

18:00-19:00 Wine reception

If you have any questions please do not hesitate to get in touch.

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CFP - Cultivating Innovation: How (and How Not) to Think about Intellectual Property in Agriculture and Plant Science

20/12/2014

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A one-day interdisciplinary conference
14th April 2015

Location: John Innes Centre, Norwich, UK
Deadline: Abstract submissions should be received by 23/1/2015 (decisions announced 30/1/2015)

As part of the AHRC-funded Cultivating Innovation project the University of Leeds is hosting at the John Innes Centre a one-day conference bringing together plant breeders and agricultural scientists with historians, philosophers, and scholars from other disciplines for a fresh look at intellectual property in agriculture and plant breeding.

The conference will take place at the John Innes Centre from the morning of Tuesday 14th of April. The closing keynote address will be given by Professor Daniel Kevles (Yale).

Abstracts are invited for talks on the following aspects of intellectual property and its relations to agriculture and plant breeding, from any disciplinary perspective within the humanities and sciences:

IP and plant science
IP and agriculture
IP and genetic modification
IP and food security
IP and bioscience industries

If you are unsure about the potential suitability of your paper, please email the conference organiser, Dr Dominic Berry, d.berry@leeds.ac.uk

All presentations will be video recorded and made available to the public through YouTube.

The Cultivating Innovation project <www.cultivatinginnovation.org> is led by Professors Gregory Radick and Graeme Gooday at the University of Leeds. The aim is to bring greater attention to the role of intellectual property in science past and present, with a particular emphasis on agriculture and the plant sciences. Given the public-facing nature of the project, we will be encouraging all speakers to spend a little of their time explaining a particular aspect of IP law/theory/social importance, that would either a) typically be explained in a manner too complex for a general audience, or b) would be found only in academic texts.

Please send us your submission in the order outlined below:

Your name, email address, and a short biography (explaining your current position and any particularly relevant background experience).
Title for conference paper.
Abstract for conference paper (up to 300 words).
Then please briefly say what aspect of IP law/theory you would like to explain to the public, provided you were able to present at our conference (up to 100 words). Rather than actually explaining the idea in question, please do focus on why you think it would benefit society for more people to understand this point. The following example is taken from the perspective of a potential scientific speaker, it is purely illustrative. All speakers should feel free to propose the importance of any idea, and should not feel bound in any sense by this example.

Example

I would explain (in a way that is friendly to a general audience) how techniques for identifying single nucleotide polymorphisms have changed in the past twenty years, because too often public discussion stops at ‘genes’ and how they operate, when the genome should be seen quite differently. This would help people better understand what plant intellectual property laws do (and do not) capture about nature.

All four parts of the submission outlined above, should be emailed to d.berry@leeds.ac.uk and (preferably!) titled ‘Cultivating Innovation abstract submission’.

Thank you from the Cultivating Innovation team.
@IPNarrowIPBroad

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Science and history: an interdisciplinary approach

12/12/2014

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What would scientists and historians working together look like? Perhaps the first thing you might think of, would be something like a historical research programme that relies on scientific techniques and expertise, such as carbon dating or geophysics, or perhaps using contemporary medical knowledge to explain mystery historical illnesses. The second thing you might think of, particularly if you have read work from within the disciplines of Science and Technology Studies (STS) or the History and Philosophy of Science (HPS), is an anthropological study of scientists conducted by historians. These sorts of investigations are today relatively common, particularly thanks to the success of Bruno Latour and Steve Woolgar’s Laboratory Life. However, this post is about neither of these sorts of projects. It is instead about historians and scientists collaborating (in a more or less interdisciplinary way) to achieve common intellectual/economic/social goals. The most formal expression of support for, and rationale for, this sort of research, has been given by the historian and philosopher of science Professor Hasok Chang. His views on the matter - and videos of some very attractive chemical experiments that Chang performed as part of his research - are most easily accessed by watching his University of Cambridge inaugural address.

Chang’s suggestion that HPS scholars should be located ‘down the hall’, as it were, from scientists, and the insights of historians all the better integrated into scientific teaching, resonate not only with Cultivating Innovation, but also other recently completed projects here at the University of Leeds. While some might want to hold back from his pluralistic mission - after all, there are many ways in which HPS researchers might wish to collaborate with scientists that would not promote pluralism - it is nevertheless the case that Cultivating Innovation seeks to guard against homogeneity; in crops, agricultural marketing practices, and the ways in which scientific work can be done. In the remainder of this post, we will be reporting on a recent conference that saw historians and plant scientists attempting to work in interdisciplinary mode. However, we are also very pleased to announce that in the near future we will be beginning an online discussion about hist/sci collaboration, with another project - one that has similarly interdisciplinary ambitions - the ‘Constructing Scientific Communities’ project led by Professor Sally Shuttleworth at the University of Oxford. We hope that other researchers working in this mode, not only within the UK but around the world, will take the opportunity to join us in reflecting on what it is to carry out research in this manner, the extent to which it constitutes a distinct type of historical/philosophical research (with distinct problems and rewards), and to share advice on how to maximise our chances of success.

These two (bad!) photographs of Dr Cristiana Oghina-Pavie were taken at ‘History and Plant Sciences: Interdisciplinary Approaches’, a conference that she organised in Angers on the 8th and 9th of December. Two members of the Cultivating Innovation project, Dr. Dominic Berry, historian, and Dr. Bruce Pearce, plant scientist, presented a joint paper at this event, which will form the subject of a future blog post. (You can see a list of all the papers and speakers at the conference online here.) Oghina-Pavie had organised the meeting with the specific intention of bringing together historians and plant scientists in order to promote interdisciplinary work between them, and provide a platform for those researchers who are already taking on this challenge. The photographs above are particularly important, as at this point in her presentation Oghina-Pavie highlighted some of the primary characteristics of this work, and how it ought to be done. We share them here as part of the groundwork for future researchers interested in attempting hist/sci collaboration.

So, what about some particular examples?

Well, one of the first papers to stand out was the collaboration between Jean Beigbeder, agricultural engineer and Vice President of Pro-Maïs, and Maryse Carrareto, an anthropologist. Pro-Maïs is an organisation dedicated to collecting and maintaining the hundreds of landraces of maize to be found across France. While working with large commercial partners, they are dedicated to releasing these biomaterials to anyone who seeks to use them for breeding and growing. Though there may be aspects of this organisation that we might wish to investigate further (for instance, the effects of relying on material transfer agreements as the mechanism for providing access to varieties) it is nevertheless a very impressive organisation, made all the more so by their recent database efforts. Rather than merely list all varieties, regions of origin, and so on, they have collaborated with Carrereto to collect evidence of traditional farmer knowledge surrounding their growth. This information is to be included as part of the varietal database (containing well over 1000 distinct forms), and Carrereto’s extensive report has been made available online here. In this instance, a historian is collaborating with scientists in order to improve their equipment (electronic database), while scientists and breeders are reminded that there is an underused knowledge resource at the heart of farming; the grower.

There is space enough in this post to include one other example. Anna Svensson, a PhD student at KTH Royal Institute of Technology (Stockholm), presented her research into early modern herbaria, focussing in particular on the botanic gardens of Oxford University. Here the expertise between scientists and historians was arranged slightly differently, as she is working with Dr Stephen Harris, Druce Curator of the Oxford University Herbaria, to conduct a detailed investigation of the gardens, their accession catalogues, and the associated herbaria. The latter are of special interest as herbaria in this period were bound in leather volumes like books, rather than being kept on the more familiar loose sheets that we are familiar with today. In tune with principles that guide Cultivating Innovation, Svensson’s project recognises that the meanings of plants are constituted both by biology and history, and that - in her words - “there is not always a clear distinction between a ‘botanical’ and ‘historical’ reading of the herbarium.” Within biology this perspective can be expanded well beyond plants, vastly increasing the potential scope for interdisciplinary collaboration between scientists and historians. We hope you’ll join us for future discussion of the same.

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