Robust protection of intellectual property (IP) is the lifeblood on innovation. An efficient and equitable IP system helps strike a balance between the interests of the innovator and society, by ensuring return on research investments and stimulating further research and development. The IP rights system has been developed and adopted by countries around the world to provide an environment in which creativity and invention can flourish, for the benefit of all. However, using IP rights in agriculture has proved challenging.
How is IP used to protect plant-related innovations and seed?
Innovation relating to plant and seed development includes traditional breeding, modern breeding techniques and methods of genetic modification. Modern techniques to create crops with enhanced characteristics require substantial investment and lengthy development programmes. A 2011 study showed that bringing a new biotech crop to market took 13 years from the initiation of the discovery project, at an average cost of €116 million. As the resulting high-tech products are easy to copy by simple propagation, robust IP systems are required to protect these investments.
There are two primary forms of IP rights for plant-related innovation: patents and plant variety protection (PVP).
Patents are most often used to protect research tools and new traits obtained from technical processes, such as genetic modification or complex plant breeding methods beyond mere crossing and selection. Patents covering new plant varieties are only available in a few countries. In contrast to PVP, a patent needs to describe the invention in a way that it can be reproduced by others and this disclosure encourages further innovation.
PVP protects a new plant variety on the basis of the combination of all its phenotypical characteristics, and is suitable for varieties developed through traditional breeding. PVP rights have specific exceptions, for example the free use of a protected variety for further breeding, or the right for farmers to practice farm-saved-seed (saving part of their harvest for use as seed in the next season).
The challenges to IP rights
The protection of IP to stimulate the innovation necessary to address the increasing challenges facing agriculture is criticisedat several levels. Criticism of IP rights held by companies in the agricultural sector is often based on the assumption that farmers will have their livelihoods and choices controlled by those companies.
Several groups attack IP protection and claim it is a roadblock to innovation and a threat to food security. They are against patents on plant-related innovations and question the role of private sector research and development for agriculture. Their claims have no basis in reality and often mischaracterise existing IP laws, as well as the scope of the perceived ‘problem’.
For example, the threat of patents or PVPs to smallholder farmers is identified, by some groups, as a concern. However, a compulsory exception for acts carried out privately and for non-commercial purposes exists under the International Union for the Protection of new Varieties of Plants (UPOV) 1991 convention. This allows seeds to be produced and used by subsistence farmers, yet many countries have still not adapted their national laws to ratify the UPOV 1991 Act. In addition to the exception under UPOV 1991, the patent laws of most countries allow saving seed for private and non-commercial purposes.
Moreover, their claims lack any actual evidence of a threat to innovation or to food security, and often ignore recognised studies showing the value of IP for innovators, farmers and consumers. Such extreme positions against IP should thus be avoided.
Dialogue with stakeholders to further evolve the plant-related IP systems and ensure ongoing research and investment in crop plants is critical. Only then can we provide sustainable solutions that enable benefits for all parties involved and help foster food security across the globe. Industry-led efforts around patent licensing (e.g. the International Licensing Platform-Vegetables) and patent transparency (e.g. the Patent Information and Transparency Online database developed by the European Seed Association) are positive steps in addressing the legitimate concerns of stakeholders willing to engage and move the discussion further.
No patents on plant-related innovations is certainly not the answer.