Background

Agricultural research in the US has been greatly influenced by the establishment of the system of Land Grant Colleges, which was created in the late 1800's to advance the teaching of agriculture and related fields. At the time 50% of the US population lived on farms, and 60% of the labor force was employed in agriculture. The system has survived successfully to this day, promoting a three-pronged mission: teaching, research and extension services. The extension services provided the important link between agricultural colleges' academic and research programs and societal needs.

Traditionally, discoveries in the public research institutions and agricultural universities were seen as "public goods" and flowed directly down the chain of public institutions to farmers and businesses. This system formed the basis for many improvements to crop germplasm. Companies adopted and often improved discoveries from public sector institutions and turned them into crop varieties for commercial markets. This helped provide for a robust seed industry in developed countries while significantly increasing food production in several developing countries.

Changes in Policy and Science

Over the past two decades this system has experienced some fundamental changes. Many factors have driven these changes, but two significant factors were reduced funding for research at public institutions, and a concern that innovations created by government-sponsored research were not flowing to the private sector for development of new products to benefit people and the economy. Both of these factors came into play in 1980 when Congress passed the Bayh-Dole Act that encouraged universities to license their inventions to the private sector to encourage their commercial use. In addition, it was believed that the licensing agreements would help make up some of the funding shortfall from the Federal and state governments.

Bayh-Dole was followed immediately by the US Supreme Court decision in 1980 that allowed for the patenting of new "life forms" created by laboratory techniques (Diamond v. Chakrabarty). That ruling was broadened in 1985 to extend to genetically modified plants. This development was important for the dramatic advances in biological sciences taking place. The biotechnological inventions were radically changing biological science and opened new opportunities to crop improvement.

Public Sector Contribution to Agricultural Innovation

Public sector researchers invented many of the types of technologies that are necessary to conduct basic biological research and develop new transgenic plant varieties. The range of public-sector inventions in agricultural biotechnology suggests that, in the future, public-sector institutions can deliver end products with freedom to operate for specific purposes.

However, ownership of public sector technologies is highly fragmented across institutions and across technology categories. Information about what technologies exist and where the rights are held is difficult to find. And much of this intellectual property has been licensed to the private sector, sometimes under terms that are confidential and may allow exclusive rights to the licensee. Since applied research and crop genetic improvement is a derivative process based on pre-existing plant material, each incremental improvement that involves biotechnology now brings with it a number of IP and germplasm constraints, which accumulate in the plant material.

Private Sector Response to Change

The response of the private sector to this situation of fragmented and complex technology ownership has been to combine and accumulate portfolios of agricultural IP and germplasm through a series of mergers, acquisitions, and cross-licensing agreements. There are only a small number of large multi-national firms that control a large proportion of cutting edge agricultural IP. A key goal of this centralization is to enhance companies' ability to produce biotechnology-derived finished crop varieties with freedom to operate.

Public Sector Collaboration

The end result of these changes in the public and private sectors and in the law is the significant and increasing difficulty of public sector researchers to access technologies to fulfill their missions. The recent experience with the development of vitamin A-enhanced rice, or "GoldenRice", is an example of the consequences of the complex IP ownership of agricultural biotechnology. GoldenRice provides dietary vitamin A when consumed. This revolutionary new product promised huge and direct health benefits to millions of poor children in developing countries, where vitamin A deficiency causes 500,000 cases of blindness each year, and is a contributing factor in over 2 million premature deaths each year. However, when it came time to prepare this new rice for delivery to those countries and people for whom it was intended, the researchers discovered that many of the techniques used by the researchers were patented in some countries, and some of the materials had been used informally, or under legal agreements that restricted further dissemination. In fact, there were 70 patents involved, 40 issued by the United States, and six Material Transfer Agreements (MTAs). Although these issues haven now been largely resolved through the cooperation of the private and public sector, much time and effort was expended to overcome these barriers.

The public sector will remain an important source of innovation in agricultural research, and will continue to play an important role in improving crops. PIPRA participants have an opportunity to make it much easier to use current and future inventions for the development and commercialization of improved staple and specialty crops. To achieve this goal, and address the issues described above, public sector institutions ought to systematically retain rights to use their newest and best technologies for subsistence and specialty crop development when they issue commercial licenses. It will also require that they systematically make their current and future technologies known and available to each other. In further shaping the initiative, participants will develop strategies that allow them to continue their work with the private sector to develop opportunities for commercialization of new technologies, while at the same time enhancing the broad public benefit of technological innovation.

Additional Sources of General Information on Intellectual Property and Agriculture

Many sources of additional information on intellectual property rights, agriculture and developing countries are available. The following links provide a starting point for those seeking additional information. However, the authors of this website cannot attest to the accuracy of information provided by these links. Providing links does not constitute an endorsement of these sites or the information presented on the sites.