Module III: Managing Intellectual Property

Several points were raised in discussion that helped to put these IPR theories and mechanisms into an African context.

• With regard to breeders’ rights, the question was raised whether the rules do not favor big companies over small farmers and scientists at universities and research institutes; although the process is less expensive than for patents, the fees may still be out of reach of many small innovators, who also may not have the resources for DUS testing. Roth responded that, in the European system, the farmer is not responsible for doing the DUS test; she just submits the sample to the responsible government office. Roth also added that asexually reproduced plants, e.g., flowers and potatoes, are relatively easy and inexpensive to breed, and as such are not beyond the reach of the small farmer (unlike maize, which can be quite complicated to breed).
  
  
• The controversial issue of applying for patents on genes was raised and discussed at some length. Here the line between invention and discovery can be very fine. A gene exists already; if it is identified and isolated, i.e., discovered, but is otherwise unaltered, can it be patented? Some feel that if in the process of identifying and isolating the gene a significant problem was solved in an ingenious way, and/or that the gene is removed from its natural context and applied to new uses, then it is patentable. But what exactly should be patentable: the process of isolating the gene; the gene itself; a modified gene; usage of the gene in products or processes; gene fragments or "tags"? Furthermore, who is the inventor? Gene identification can be "just a list of sequences coming out of one machine and into a word processor or a database with no human intervention." No patent or court system has given us the final word on this issue as yet.
  
  
• With regard to public versus private responsibility for access to seeds, several points were made. In much of West Africa, research institutes are funded by governments and donors. When new varieties are invented, the results are in many cases considered to be in the public domain; the seeds may be sold on a competitive basis, but there is no IPR component, no restriction on saving seeds, and so forth. It was noted that in the case of Nigeria there is a national seed service that distributes seeds to farmers after a process of testing and selection. Unfortunately, the research part of the system is often subverted by "leakages" at the testing stages; sometimes when the researcher goes to the test farm to obtain crop yield results, she finds the produce at the local market, making accurate data collection impossible. Illicit transport of seed (i.e., smuggling) is also common in the region, making enforcement of any rules or rights extremely difficult.
  
  
• More generally, the issue was raised of whether the public good is better served by a regime driven by IPR and commercial interests or one driven by keeping research results in the public domain and making improved germplasm available as widely as possible. The classical "free market" response is that the private sector is better equipped to innovate, disseminate, and provide service given the incentives that property rights provide. IPR’s prevention of copying is supposed to stimulate ever greater innovation. Critics argue that profit motives and property rights agreements like TRIPS hurt the poor, draw resources from the South to the North, and have no place in the critical realm of food supply.
  
  An analogy can be made to the "open source" software paradigm, also known as "copyleft," in which software code is made freely available for anyone to study and submit improvements, with nobody making a claim to IPR. The system has produced top quality software that is constantly improving, including popular Unix operating systems such as Linux and FreeBSD. This paradigm actively shuns property rights and has completely different incentives, which clearly work to improve and disseminate the product. Should seeds be like software?
  
  Unfortunately, the workshop, like the rest of the world, has failed to resolve this ideological issue definitively. It can be mentioned in this context, however, that breeders’ rights can be considered a kind of middle ground, as they provide a reasonable level of protection and make fairly generous exemptions for research use and farmer-saved seeds.
  
  
• The question was also raised as to who has the right to apply for intellectual property protection in a case where there are several potential applicants, e.g., an individual researcher, his institution, and the government or other funding organization. Roth replied that in most cases initially the right belongs to the individual breeder, but that in many cases that right is shared with the employer. In the United States, the decision to allow universities and individual scientists to retain a share of IPR on government-funded research has led to the university playing a greater role in the innovations marketplace. (In addition, universities are also uniquely well able to bring private sector competitors together into research consortia, with appropriate agreements as to responsibilities and benefit-sharing, and are able to "make things happen that wouldn’t otherwise happen.")
  
  
• Along the same lines, one workshop participant noted that putting a strong IPR regime into place in West Africa will not by itself guarantee that innovation and commercialization will ensue, or that Africans will benefit by it. He stressed the importance of the overall enabling environment, including allowing individual scientists to gain from commercial exploitation of their research. Roth noted that this blurring of lines between sectors—academic, government, industry—is a growing feature of the information age. Many individuals are increasingly wearing multiple hats, e.g., a professor sitting on the board of a private company and serving on a government committee. Policymakers will need to take this reality into account, in biodiversity conservation and use schemes and many other endeavors.