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.
Cultivating Innovation: The case for an expanded conception of Intellectual Property
Gregory Radick, University of Leeds
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?
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.
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’).
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.
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.
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?
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.
From public to private goods: the evolution of plant properties in the American political economy
Daniel Kevles, Yale University