US 'should be more flexible on patent law'
Substantial changes could be made in the way that the US government interprets patent law that would benefit farmers in developing countries without undermining the interests of US companies, according to a report from a respected Washington-based think-tank.
"Important components of the biotechnology tool kit — gene traits, plant transformation tools, and genetically improved germplasm — have been patented in the United States and elsewhere by companies that have little economic incentive to develop and disseminate the technology to meet the needs of these farmers," say the authors of the report.
Michel Taylor, a former vice-president for public policy at Monsanto, and his co-author Jerry Cayforth, both of whom work for Resources for the Future (RFF) in Washington, point out that the United States has acknowledged the importance of developing-country agriculture in achieving the United Nations' Millennium Development Goals.
But they say that many US policies, including those on patents, are not fully aligned with these goals, or with achieving global food security. In contrast, they argue that changes in patent policy could simultaneously advance both food security and the broader international interests of the United States.
The authors acknowledge that patents play an important role in stimulating private investment in plant biotechnology, and emphasise that they are neither pro-patent nor anti-patent.
"But we find the case for policy change convincing," they say, adding that biotechnology cannot benefit African companies "if those who would develop the technology specifically for developing-country purposes cannot gain access to it".
The authors point out that the ways that US patent policy affects developing countries are complex and multifaceted, and include domestic policies on what gets patented and the rules governing access to US-patented technology.
In future, they add, developing-country access to biotechnology for food security purposes may be affected even more substantially by patent-related policies in the international arena, such as implementation of the Trade-related Aspects of Intellectual Property Rights (TRIPS) agreement, international harmonisation of patent laws through the World Intellectual Property Organisation (WIPO), and the use of bilateral trade relationships to strengthen patent protection.
"There is flexibility within the TRIPS agreement, but it is important the developing countries are supported in using that flexibility to devise systems that meet their needs," says Taylor, echoing arguments put forward last year by the UK-financed international Commission on Intellectual Property Rights.
In contrast, however, WIPO is focusing on a 'one size fits all' approach to patents that would support the move toward a single worldwide patent. "If successful, this approach to harmonisation could hinder developing countries in adopting patent regimes tailored to their particular needs, including the need to foster dissemination of biotechnology for food security purposes," say Taylor and Cayforth.
They argue that, as the richest and most powerful country in the world, the United States has a duty to avoid actions and policies with unnecessary and avoidable adverse impacts on progress elsewhere. This includes patent policies that adversely affect food security in developing countries.
"A lot of people think that it is a zero sum game, and imagine that anything that weakens a patent is to the detriment of the patent holder," says Cayforth. "We argue that, if you take the broader picture into account, that is not necessarily the case."
He and Taylor place possible changes in US patent policy in three categories: changing law and policy to improve access to patented technologies; preserving the flexibility developing countries have under the current TRIPS agreement to tailor their patent systems to their local needs; and implementing more fully the article regarding support for technology transfer.
Five domestic patent policy alternatives, they add, deserve consideration: creating a strong research exemption; compulsory licensing for agricultural biotechnology; requiring patent holders to demonstrate that they are exploiting the patents; making use of the government's authority to allow the use of patented tools of biotechnology for food security purposes; and placing government-funded technology in the public domain.
"There are changes the United States could make in both its domestic and foreign policies that would improve developing-country access to the patented tools of biotechnology without significantly undercutting the core invention incentives of the patent system," say Taylor and Cayforth.
"These changes deserve consideration as the United States grapples with its heightened national interest in global food security and works to build a harmonised global patent system that embraces the needs of developed and developing countries alike."
Click here for the RFF report: American Patent Policy, Biotechnology, and African Agriculture