Intellectual Property Rights and the North-South Contest for Agricultural Germplasm: A Historical Perspective
This article examines intellectual property rights (IPR) regimes as they apply to agricultural germplasm in the context of global North-South relations. The issue is pertinent particularly since TRIPs (Trade-related Aspects of Intellectual Property Rights) became enshrined in the statutes of the World Trade Organization in 1994, institutionalizing the notion of ‘germplasm as property’ throughout the globe. Yet, the idea of ‘germplasm as property’ is a notion culturally specific to the global North historically. It is perhaps no surprise that many germplasm patents are being held on biological matter that originated in the South–in the Vavilovian ‘centers of diversity’. This paradox situates the contest over biodiversity resources in a world-historic context and undermines the declared reasons for germplasm IPRs. Besides, more than just a North-South conflict over resources, this episode features also a confrontation between competing worldviews of nature-human relations.
Agriculture and Intellectual Property Rights: Economic, Institutional and Implementation Issues in Biotechnology
1: Introduction, V Santaniello et al. 2: Patent and Other Private Legal Rights for Biotechnology Inventions (Intellectual Property Rights - IPR), D D Evenson, P.L.L.C., Washington, USA 3: Intellectual Property Rights of Plant Varieties and of Biotechnology in the European Union, V Santaniello 4: Intellectual Property Rights under the Convention on Biological Diversity, W Lesser, Cornell University, USA 5: An Economic Approach to Identifying An `Effective Sui Generis System' for Plant Variety Protection Under TRIPS, W Lesser 6: Recent Intellectual Property Rights Controversies and Issues at the CGIAR, S H Bragdon, IPGRI, Rome, Italy 7: Economics of Intellectual Property Rights for Agricultural Technology, R E Evenson 8: The Market Value of Farmers' Rights, R Mendelsohn, Yale University, USA 9: International Crop Breeding in a World of Proprietary Technology, B D Wright, University of California, USA 10: Knowledge Management and the Economics of Agricultural Biotechnology, D Zilberman and C Yarkin, University of California, USA and A Heiman, Hebrew University, Israel 11: Comparing Allocation of Resources in Public and Private Research, S Lemarie, Universite Pierre-Mendes, Grenoble, France 12: Biotechnology Inventions: What Can We Learn From Patents?, D K N Johnson, Wellesley College, Massachusetts, USA and V Santaniello 13: Biotechnology Inventions: Patent Data Evidence, A Zohrabyan, Yale University, USA and R E Evenson 14: Property Rights and Regulations for Transgenic Crops in North America, G Carlson and M Marra, North Carolina State University, USA 15: Intellectual Property Rights, Canola and Public Research in Canada, P W B Phillips, University of Saskatchewan, Canada
An Economic Justification for a Broad Interpretation of Patentable Subject Matter
I. INTRODUCTION When people think of patented inventions they probably think about well-tooled, oily parts that make machines run-something they can put their hands on, weigh with dead reckoning, and intuitively understand. Historically, this has been the world of the engineer, technical draftsman, and industrial manufacturer, In reality, though, patent law has evolved into something much harder to characterize. American patents now protect golf putts, business methods, and even medical procedures.1 Like any patent, these confer a federally sanctioned right to exclude all others from making, using, or selling the claimed "invention" for about seventeen years.2 The notion that a weekend golfer, an Internet entrepreneur, and a family physician can exclude all others from using their patented innovations has led many in academia, politics, and the popular press to discredit modern American patent law as ridiculously broad.3 Unfortunately, patent law is a complex, arcane, and often misunderstood doctrine, endearingly labeled the "metaphysics of law."4 The complexities and convolutions of the system frustrate clear debate, and arguments for or against patents inevitably invoke myriad issues from centuries of human experience. To focus the present inquiry, this Comment explores only how broadly patentable subject matter should be interpreted, not "if" or "how" inventions should be patented. This Comment adopts an exclusively economic perspective and does not address substantial ethical and moral arguments about the "proper" scope of patentable invention. Relying on introductory fundamentals of patent law, a brief synopsis of the current subject matter debate, and an analysis of market economics relating to inventions, this Comment concludes that a broad understanding of patentable subject matter is economically justified. In fact, this Comment argues that existing statutory provisions and judicial precedent embrace the most economically efficient, though admittedly broad, perspective. Thus, despite critics' claims to the contrary, sports moves, business methods, and medical procedures can, and should, be patentable under current law. Following this introduction, Part II presents invention and innovation as public goods that are vulnerable to the economic problem of free-riding. Part III describes the fundamental anatomy of an American patent, explaining how patents developed as one solution to the problem of free-riding. Parts II and III collectively lay a foundation for the economic principles applied later in this Comment and attempt to clarify some of the "metaphysics" impacting the subject matter debate. Part IV describes one way in which patents contribute to the American economy. It frames the importance of the debate, showing that the wealth-- generating characteristics of innovation fundamentally justify a broad interpretation of patentable subject matter. Part V turns to a survey of today's most controversial subject matter issues: patents on sports moves, business methods, and medical procedures. Other authors have substantially explored these issues, so this Part simply introduces the current contours of the debate. Next, Part VI responds to arguments for narrowing patentable subject matter by arguing that all patents, regardless of their subject matter, possess inherently wealth-generating potential. Part VI also argues that selective market forces ultimately constrain patent activity; in other words, free markets will determine what subject matters should be patented. Thus, it concludes that artificial and subjective limits on patentable subject matter would weaken the efficient, market-driven system contemplated by our existing patent laws. Part VII confirms the patent-market analysis of Part VI by analogizing patent law to the jurisprudence of modern antitrust law. This Part concludes that antitrust law's respect for limited legal intervention in functioning markets provides an ideal model for analyzing the patentable subject matter debate. …