More is better – when it comes to IP?

One of the best parts of the Maize Genetics Meeting is the opportunity to have discussions with scientists working in a variety of fields from academia, industry, and NGOs. Conversation this afternoon veered towards intellectual property (IP) and biotechnology for a bit. It’s a contentious subject for a lot of reasons, but some new ideas I’d never thought of before came up today. I don’t have a background in IP, so please feel free share your thoughts and ideas in the comments!Developing a biotech trait does require a lot of funds, similar to developing a new medicine. There’s testing and trials, safety and regulation – all of it costs money. In order for a company to invest funds and people into a project, they have to have some reassurance that they will be able to make a profit after al that expense. Intellectual property protection, whether on a new widget, medicine, plant variety, or even movies and music, helps ensure that no other company or person will be able to collect profit that the inventor or creator deserves.

Of course, patents and other forms of intellectual property protection (IPP) do have their limitations. Right now, IPP may be at once too strict and too lax.

IPP is too strict in that patent holders must pursue violators of their patents, or risk loosing the patent. In other words, to follow the law, patent holders must go after even the smallest violators. This may be a waste of time for the patent holder and penalizes small patent violators who can’t afford a court case. The requirement is necessary, though, an attempt to prevent a company from sitting on a patent but not doing anything with it. One possible solution would be to make IPP more lax by creating a bottom threshold limit of the income a violator is making from the protected IP. In the case of agriculture, small farmers who willingly or accidentally violate biotech patents or plant variety protection would only be subject to a suit if their income or benefit from the IP is above a certain amount.

IPP is too lax in that there are situations where patents can be violated but the patent holder has little recompense. In agriculture, this could happen if one company used another company’s germplasm in their breeding program, although this has become more and more rare as markers have started being used to identify members of a plant’s lineage. Another example from agriculture is protected methods that a rival company might be able to use without anyone knowing.

This idea of too lax IPP came up in conversation about how to help African countries develop their own seed production facilities. Companies like Pioneer have donated germplasm and traits royalty free for use in breeding programs in Africa. Their goals here are partially altruistic – they can help people while having only a tiny effect on their own bottom line – and partially self-interested – farmers who can start making money today may be customers tomorrow.

The donor companies have legitimate concerns that existing or startup companies could take those traits and germplasm and develop new products that would eventually compete with the patent holders. As I said, this is less of a concern than it used to be because markers can increasingly be used to determine the varieties that were used to develop a new variety. It might not be so easy to track a patent protected method that was used to develop new varieties.

Marc Albertsen of Pioneer Hi-Bred International gave an exciting talk today about a new way to develop male sterile plants for hybrid production that doesn’t involve cytoplasmic male sterility (look forward to a post about it soon!). Pioneer might be interested in donating this technology to researchers developing improved crops for Africa, but with no way to track the method, they might fear that another company could access and their hard work without paying for it. I’m not sure what would be potential solutions to this problem, but potentially a more strict IPP for companies that willfully use another company’s work could be an answer.

Too lax, too strict – what do you think?