Speakers:

Dwijen Rangnekar, Senior Research Fellow, University College, London
Tim Roberts, Intellectual Property Consultant
Chair:

Linda Brown, Senior Natural Resources Adviser, Department for International Development

1. Tim Roberts introduced a discussion on the question of whether Intellectual Property Rights (IPRs) can help promote agriculture and food security in developing countries, building largely on Chapter 3 of the report of the Commission on Intellectual Property Rights (CIPR).

2. Tim Roberts put forward four key propositions: (i) the CIPR report undervalues the contribution of technical progress to agricultural advance; (ii) in that context, it undervalues the role of IPRs in technical progress; (iii) notwithstanding these points, the proposals are not unreasonable; but (iv) the emphasis is misplaced.

3. Expanding on these points, he reminded the meeting that in developed countries agricultural productivity had increased very rapidly, largely as a result of improved varieties and the use of chemical inputs, including pesticides. For example, wheat yields in France had risen from around one tonne per hectare to eight tonnes per hectare since 1945. Many of the innovations leading to these increases had in the past been generated by the public sector, but the share of total research and development (R&D) carried out by the public sector had fallen. The Commission was right to argue that public R&D should be increased.

4. Private R&D was well-funded but needed intellectual property protection. This could take place via three routes: (i) patent protection, (ii) special or sui generis protection of plant variety rights, and (iii) action by companies to protect trade secrets or insert technical protection into their products.

5. Patent protection was the strongest form of protection. It was now available in >100 countries, and this number was rising following the TRIPS agreement. Exceptions, for example for research use of technology and for farmer re-planting, were not always clear. However, patent protection often did not apply to plants and was limited by the need for patented items to be new, useful, and inventive.

6. Plant variety rights had been developed in a separate agreement known as UPOV (L'Union internationale pour la protection des obtentions végétales, International Union for the Protection of New Varieties of Plants), first agreed in 1961. This is described in more detail in box 3.1 of the CIPR Report . In brief, however, it provides for protection of plant materials which are distinct, uniform, stable, and novel. It requires exceptions for breeding and provides optional exceptions for farmer re-planting.

7. Other ways of obtaining protection are through companies' own actions, for example by protecting secrets, through hybridisation, or by inducing artificial sterility (although this latter technology is not yet available on the market).

8. Tim Roberts argued that the best solution was to use the patent system for major advances, but to use plant variety protection in the remaining cases. He thought plant variety protection would be useful for developing countries in meeting market needs and that better plant variety protection would produce improved varieties faster.

9. Finally, Tim Roberts thought that the report had the right recommendations in some cases: for example, in arguing for clear exemptions for research and seed saving, for more public research, and for ratification of the International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA). He was more doubtful about the argument that there should be no patents at all on plants and animals, and also on some issues of farmers' rights. He did agree that countries at different levels of development had different requirements. However, he also thought that TRIPS was flexible enough to accommodate different needs.

10. Dwijen Rangnekar picked up a number of these issues in his presentation. He noted that there were many different views about the CIPR report with respect to agriculture, ranging from those who thought that the analysis was good but the recommendations weak, through to those who agreed with the substance of the report. He also noted a general unanimity across these views that a 'one-size-fits-all' approach for IPRs was inappropriate. He wanted to tackle three areas: (i) the use of sui generis protection for plant varieties; (ii) how to be more proactive in the public sector and make best use of competition policy; and (iii) support for the ITPGRFA.

11. On the first, he argued that the Report recommends developing and least developing countries should adopt the sui generis option for plant variety protection. Explaining this recommendation, he noted that breeding normally falls short of full patent requirements. This was an industry in which there were large spill-over effects, and in which different methods were used to appropriate the benefits of research (for example through product differentiation and planned obsolescence). Moreover, in a sector where innovations (new plant varieties) are cumulative and build on previous innovations (early vintages), strong protection (patents) might deter technical change and innovation. It was probably necessary to go beyond the normal level of exceptions, because of the problems with patenting varieties, the consolidation of the seed industry, the importance to farmers of access to seeds, the need to use protected varieties for further research and breeding, and various practices concerning using and distributing seeds.

12. With regard to the public sector, Dwijen Rangnekar argued that its role was to help diversify technology supply and ease barriers to entry for new biotechnology and seed firms. An active public breeding programme is considered useful in enhancing competitive pressures in the seed industry. Here, reference was made to Chapter 3 where evidence of consolidation within the seed industry in developed countries is reported.

13. Dwijen Rangnekar's own view was that developing and least-developed countries needed to be protected from TRIPs-plus demands concerning plant variety protection in bilateral free trade agreements with the US and EU. Current arrangements allow least-developed countries exemptions to 2016, which could probably be further extended. As such, using indicators of development might be better than having time-bound implementation deadlines.

14. Dwijen Rangnekar ended by appreciating and reconfirming Tim Robert's comments on the ITPGRFA.

15. A number of points were raised in discussion:

" There was a debate about whether IP was really necessary in developing countries. Some participants argued forcefully that patents were necessary in order to produce technical advances. Others insisted more on the need of farmers to access new technology.

" There was a parallel discussion on what form IPRs should take. Some participants argued that an UPOV arrangement was not necessary because countries could pass their own laws, as India and Bangladesh had done.

" Finally, there was mention of discussions in the TRIPS council.