Intellectual Property and Emerging Technologies

The Svalbard Global Seed Vault is the largest safety backup of the world´s crop diversity. It offers safe storage for duplicates of seed samples conserved in genebanks worldwide. Since its opening in 2008, 123 institutes located in 87 different countries have deposited 1,331,458 seed samples of 6,297 crop and crop wild relative species in the Seed Vault. European institutes have very actively taken advantage of the opportunity to back up their genetic seed material. As of today, 38 institutes located in 30 different European countries have deposited 178,999 seed samples in the Seed Vault. Details about seed samples, depositors and species are publicly available through the Seed Portal website. The seed samples that are deposited in the Seed Vault remain the property of the depositing institute. The germplasm is at their disposal if they should need it, e.g. if the material in their home collections is damaged or inaccessible. The Seed Vault has already proved its value and importance for securing plant genetic resources when the International Center for Agricultural Research in the Dry Areas (ICARDA), formerly having its headquarters and genebank in Aleppo, Syria had to relocate their genebank activities, due to the Syrian Civil War. Deposited seeds withdrawn from the Seed Vault formed the basis for establishing new genebank functions at ICARDA units in Morocco and Lebanon.

Gene Patents at Home and Abroad: Should the WTO Take Action in Light of Myriad?

Patents prevent anyone but the patent-holder from manufacturing, using, or distributing discoveries and inventions for twenty years from the date of filing. In order to be patentable, an invention needs to be useful, non-obvious, and represent an original design or process rather than an abstract concept or item commonly found in nature. Patents related to genetics received their first legal test in 1980, when the U.S. Patent and Trademark Office (USPTO) granted protection to a genetically engineered bacterium that consumed oil and was useful in cleaning oil spills. The legality of this patent was affirmed in Diamond v. Chakrabarty, where the Supreme Court observed that although “[t]he laws of nature, physical phenomena, and abstract ideas” were not patentable subject matter under § 101, the claimed invention in the case was distinguished from nature as “a product of human ingenuity having a distinctive name, character and use.” The Court held that although the invention comprised a living thing, the patentee had produced a new bacterium with “markedly different characteristics” from the original. The bacterium was, therefore, “not nature’s handiwork but [the patentee’s] own.” Although Chakrabarty settled the question of whether manufactured genes can receive patent protection, it did not address the patentability of naturally occurring genes. In the absence of such definitive legal guidance, the USPTO routinely issues patents on human deoxyribonucleic acid (DNA) sequences, reasoning that the material has been purified from its natural form through human intervention and is thus sufficiently “touched by man” to be beyond the scope of nature. From 1980 to 2009, the USPTO issued between 3,000 and 5,000 patents on human genes, encompassing nearly 20% of the human genome. In addition, the USPTO has issued nearly 50,000 patents involving human genetic material, yet the fundamental validity of such patents has never been reviewed until now. In March 2010, a district court decision in New York brought attention to the role of gene patents in the advancement of biomedical research. In Association for Molecular Pathology v. United States Patent and Trademark Office (“AMP”), the Southern District of New York enforced a strict standard for subject matter patentability by invalidating seven patents relating to the human breast cancer genes BRCA1 and BRCA2 (collectively “BRCA”). The court reasoned that not only were the coding sequences and mutations of BRCA results of natural phenomena but that, the purified forms of BRCA maintain essentially the same structures and functions as their natural forms and therefore fall outside the scope of patent law protection. Although the decision primarily addressed the patent’s subject matter, the court also noted the possible social implications resulting from how patents affect access and innovation in biomedical research. Contrary to concerns raised by the plaintiffs in AMP, empirical studies indicate that gene patents do not impede access to biomedical research data or play a significant role in influencing the topics of research that scientists choose to pursue. These results suggest that while gene patents do not impede innovation, they may not be necessary for it either, at least at the foundational level. Some scholars still maintain, however, that patent protection is necessary to ensure adequate funding for further research, development, and marketing of their innovations. This Note focuses on the role of patent law in encouraging or discouraging innovation in the field of biomedical research. Specifically, this Note analyzes the policy justifications underlying gene patents and explores whether these justifications validly apply to the patenting of the BRCA gene. Part I establishes a basic understanding of patents, genes, and gene patents. Part II provides greater detail regarding the arguments and holding in the AMP case. Part III introduces the traditional rationales for patent protection and applies them to gene patents. Part IV considers the concerns surrounding gene patents and whether these concerns are realistic given the results of empirical studies on the relationship between patents and biomedical research. Part IV also examines whether the district court’s holding in AMP is consistent with the policy goals behind intellectual property rights and the reality of the industry. Finally, this Note concludes that, in general, patents do not impede upon innovation. However, the broad issuance of composition claims, such as those held by Myriad in AMP, may block research in areas of study that the patent holder is not pursuing (such as therapeutics). This Note suggests that this issue could be resolved by narrowing the focus of the patent claim to the application of the gene composition, rather than the composition on its own.

Economic Reforms and Food Security

Vegetable plant breeding is characterized by continuous irmovations and the ever ongoing development of new cultivars that ever better meet the requirements of producers and consumers. The driving force behind this irmovation is acquiring or increasing market share. Access to technology, as well as biodiversity, is essential for the development of new vegetable cultivars. The plant breeder’s rights system is a specifically designed legal system for the protection of plant cultivars. Plant breeder’s rights give the developer of a new cultivar the right to exclude others from commercialization. Two intelectual property rights are relevant for the protection of irmovations in this sector: plant breeder’s rights and patent rights. Some exemptions play an important role in plant breeding, such as the “breeder’s exemption”. The breeder’s exemption, that is not considered in patent rights, ensures that other breeders may in a sort of “open innovation” use such a protected cultivar in their own breeding 176programme, making the best properties of these cultivars available to the breeding programmes of competitors. Great emphasis on protection of cultivars by seed companies, including development of Fl hybrids, plant cultivar protection and patenting have been done. The patent rights in combination with technological developments in molecular biology have in recent decades led to a large consolidation move among seed companies. Plant breeder’s rights and patent rights may be conflicting in plant breeding. Specific liberties of breeders and farmers are lost with the patentability of plant-related inventions. The global seed trade is now dominated by international corporations whose vast economic power has effectively marginalized the role of public sector plant breeding and local, small and even medium-scale seed companies. Some of these companies belong to worldwide corporations that are also involved with pesticides and biotechnology. For most vegetable crops only a few multinational seed companies are controlling large part of the world market. This makes a growing part of the global vegetable supply dependent on a few seed companies. The multinational seed companies concentration in huge corporations have merged or canceled some vegetable breeding programs to reduce costs. Then there will be fewer vegetable breeders in the fut-are and the producers will be dependent on a narrower genetic background, that could contribute in a near future, for biodiversity reduction and food insecurity. A clear distinction must be made between intellectual property rights on technology for use in plant breeding and intellectual property rights on genetic traits of vegetables. The conflict between plant breeder’s rights and patent rights is in fact restricted to rights on and the availability of plant traits. Patents on genetic material, the way in which these are granted and the way in which rights are handled are important causes of the decrease in biodiversity of breeding companies and threaten to obstruct irmovation in vegetable breeding. The intellectual property protection laws for plants must be made less restrictive to encourage research and free flow of materials and information. Patent policy should contribute to a proper balance between the rights and obligations of patent holder and society. Access to “advanced” genetic resources is an important condition for a healthy and irmovative plant breeding sector and food security. Active and positive cormections between the private and public breeding sectors and large-scale gene banks are required to avoid a possible conflict involving breeders’ rights, gene preservation, erosion and food security.

The Untold Story [2016]) as well as in fiction (e.g.Maja Lunde's The Dream of a Tree 1 ) and on TV (e.g.Seed: Deadly Power 2 ).Academic interest in the Seed Vault has so far remained scarce outside of plant genetics, conservation biology, and related fields of scientific research actively involved in ex situ agrobiodiversity conservation efforts.One can relatively quickly gain an overview of the existing English-language accounts of the Seed Vault in the social sciences and humanities.This limited interest is somewhat surprising considering that different, currently thriving areas of research actually intersect in the Seed Vault and a comprehensive analysis of its operations could make a meaningful contribution to all of these fields.In the large and growing body of research on biobanking and cryo-conservation, attention to the banking and cold storage of seeds is rather marginal.Similarly, in the multi-disciplinary research environment critically engaging with conservation efforts in a more general sense, which often focus on the conservation of animal species and ecosystems, much more attention has been paid to in situ than to ex situ conservation strategies.Finally, although there has been a surge of academic interest in agrobiodiversity conservation in genebanks in recent years, few of the research projects in this field focus on the Seed Vault.Among those that do, only one is grounded in an in-depth empirical study comparable to the one I have conducted (see Harrison 2017; Harrison et al. 2020: 51-152).This kind of empirical research is essential insofar as it considerably differentiates the insights one can gain based on publications, online material, and media accounts.Against this background, my study expands the existing research on the Svalbard Global Seed Vault and contributes to the various intersecting bodies of research by bringing into focus aspects, questions, connections, and perspectives that have not hitherto been addressed or have been considered marginal.Let me start by providing a brief overview of the current state of research on the Svalbard Global Seed Vault and on ex situ agrobiodiversity conservation efforts more generally.

ONS and Intellectual Property

The Colour of Copyright

• CSBs are an important seed source for participants in Malawi. • Participating in CSBs is associated with higher food security compared to non-participants with similar socioeconomic status. • Past exposure to rainfall shortages and high temperatures is associated with a higher propensity to participate in CSBs. Community Seed Banks (CSBs) are promoted as an approach to support farmers’ access to quality seeds of adapted varieties. While the adoption and impact of varieties distributed through conventional formal seed systems have been extensively studied, research on how participation in CSBs relates to farmers’ seed systems and food security is limited. This paper uses survey data covering 688 households and 1600 plots from Northern and Central Malawi, combined with historical climate data, to assess the extent to which farmers are utilizing CSBs as a seed source and the association of farmer participation in CSBs with a range of other foods system variables. We find that CSBs are the source of about 1/3 of the seeds of maize, groundnut, and soyabean used by the participants and that they source less of their seeds from their own harvest compared to non-participants. While the use of CSB seeds of different crops shows mixed associations with yields at the plot-level, we find that CSB participation is positively associated with higher household food security overall. Furthermore, we find a positive association between exposure to high mean temperatures and rainfall shortages and the propensity to participate in CSBs, suggesting CSBs play a role in adaptation. This study thus shows that CSB participation is associated with several positive food system outcomes, but more research is needed to understand the causal links as well as the efficiency of CSBs compared to other approaches to strengthen farmers’ seed security.

DOI en cours

Introduction Both critical intellectual property studies and feminist legal scholarship seldom address the gendered dimensions of patent law or its implications for women and women's rights. This lack of attention raises awareness of the need to broaden our approach to studies of patent law and the public domain. During recent fieldwork in South Africa, I began to consider patent law as a feminist site of inquiry and to think through the difficulties of such an examination. [double dagger]Khomani San women in the northern Cape express concerns over the patenting of biological and genetic materials derived from their indigenous traditional knowledge. Maintaining control over their knowledge and resources is important for feeding their families and safeguarding their intellectual histories and heritage as female plant gatherers. The [double dagger]Khomani San peoples are currently engaged in political struggles against patent law and the ownership of their indigenous knowledge, but such organizing has not been explicitly gender-based. Although some [double dagger]Khomani San women articulate patent law as a women's rights issue, other women in the community consider issues of patent law to be genderneutral. Concerns arising from patent ownership of indigenous knowledge are also not the main priority. [double dagger]Khomani San women committed to gender-based political organizing explain the difficulties of mobilizing and educating indigenous San women in their communities. Political organizing takes money and resources, and San communities are spread out over great distances within South Africa, Botswana, and Namibia, making meetings difficult to arrange. Issues of patent law are also not as significant or pressing as the material conditions of domestic violence, substance abuse, and poverty facing San women and their families right now. Thus, [double dagger]Khomani San men and women are involved in struggles against patent law, yet their political work does not explicitly address the connections between patent ownership and gendered social relations. Indigenous women elsewhere, however, have begun to address patent law from a gender-based perspective. The 1995 Beijing Declaration of Indigenous Women and 2004 Manukan Declaration of the Indigenous Women's Biodiversity Network explicitly argue that intellectual property rights threaten indigenous women's lives. I The Indigenous Peoples' Permanent Forum also highlights patent law as an issue of concern for indigenous women. (2) Local women in India have taken up the issue through with the Diverse Women for Diversity Campaign in connection with Vandana Shiva. (3) Patent law as a gender-based issue therefore emerges within some international forums, and may also circulate at the local level such as with Diverse Women. On the other hand, as with the [double dagger]Khomani San, discourses of indigenous rights around patent law are seemingly framed in gender-neutral terms. Or are they? San struggles related to the patenting of Hoodia may appear gender-neutral as read through the narrow registers of liberal feminism. Yet, as will be further discussed, the masculinized discourses and gendered social relations at work within political struggles related to Hoodia become visible when scrutinized through a lens of transnational, indigenous, African feminisms. Addressing the complex gender relations that shape and are shaped by patent owernship is a complex task. it requires careful consideration of the interactions, relationalities, and hierarchies within social relations of gender, indigeneity, ethnicity, race, and histories of colonialism. Legacies of liberal, western feminism must also be confronted and continually interrogated. Yet, I contend that studies of patent law struggles and complex gendered relations can help push the boundaries of critical intellectual property scholarship and feminist legal scholarship, by asking new questions and defining the fields in new ways. …

This book examines the contribution which intellectual property rights can make in the struggle for food security in developing countries. The book consists of 11 chapters. Chapter 1 locates intellectual property rights within the armoury of food security policies. Chapter 2 deals with definitional issues and examines the role of intellectual property rights in incentivizing agricultural research and development. Chapter 3 examines the international landscape of intellectual property and the approaches taken to the relationship between intellectual property rights, agricultural biotechnology, access to biological resources, food security and globalization which are taken by the WTO, FAO, CBD and WIPO among the various international and development agencies. Plant variety rights (PVRs) are a specially created form of intellectual property right originally minted to encourage agricultural innovation and Chapter 4 examines the effectiveness of PVRs in a food security context. Agricultural innovation is in part dependent upon access of researchers to the genetic resources of the biodiverse countries of the South. Chapter 5 considers the attempts to construct an international regime to secure this access. The important role of traditional farmers in preserving landraces and cultivars from which improvements can be derived has generated for a call for the recognition of farmers' rights, and this is examined in Chapter 6 together with agitation for the protection of the traditional knowledge which often informs access to the useful genetic resources. Chapter 7 examines the intellectual property implications of the use of genetically modified (GM) crops as a technological solution to food insecurity. The protection of GM crops is achieved through patent protection and Chapter 9 looks at the competition law implications of patent licensing, patent pools and patent thickets. An old intellectual property device that underpinned the commercial development of European agricultural marketing is the geographical indication, and Chapter 8 examines the contribution it might make to achieving food security. Returning to the theme of the role of intellectual property law in incentivizing innovation, Chapter 10 examines its role in promoting agricultural research. The concluding chapter proposes a number of recommendations for action in deploying intellectual property law in the struggle for food security.

U.S. Plant Variety Protection: Sound and Fury...?

Turkey made an official application on July 31, 1959 for initiating accession negotiations to the European Economic Community. The agreement regarding the establishment of partnership between the European Economic Union and Turkey, was signed on September 12, 1963 and entered into force on December 1, 1964. With the partnership agreement, in the first phase it was aimed to establish the customs union. Also, strengthening commercial and economic relations and ensuring fast development of the Turkish economy were among the purposes mentioned in the agreement. The partnership consisted of three phases. These included the preparation phase, transition phase and the final phase. The final phase, Turkey's entrance to the Customs Union, was based on the decision dated December 22, 1995 with serial number 1195 of the European Community- Turkey Partnership Council. The mentioned decision was not an agreement in the sense of International Law and has not yet taken its final structure. This decision includes not only the free circulation of goods, elimination of customs tax, adoption of similar trade policies, a common customs tariff and the application of preferred tariff policies, but has also included arrangements for conformity of laws in intellectual property rights. Effective protection of intellectual and industrial rights has been clearly mentioned in the decision (article 3111). Turkey's accession to the Customs Union has caused a striking legal reform in the field of Law on Intellectual and Industrial Property. Many Decree Laws have been enforced in order to make a rapid harmonization with the Law of European Union. The Decree Law numbered 551 on Protection of Patent Rights has abolished the Patent Law dated 1879. The Brands Law dated 1965 was abolished with the Decree Law numbered 556 on Protection of Brands. Also, with two separate Decree Laws, industrial designs (Decree Law numbered 554) and geographic signs (Decree Law numbered 555) have been put into force. The mentioned Decree Laws are all based on the same Authority Law. Important amendments were made in 1995 to the Law on Intellectual and Artistic Works dated 1951. Computer programs were included in the protection of the Law on Intellectual and Artistic Works. Adjacent rights (=related rights) were recognized by the lawmaker. The period of protection was extended to 70 years, the principle of consuming rights was accepted and legal and criminal cases were re-formulated. European Union regulations were taken as basis in the mentioned amendments. The effect of European regulations and rules are especially evident in the Turkish Brands Law. The first regulation of the European Union Commission, regarding the Harmonization of Arrangements on Brand Laws in Member States, dated December 21, 1988 with serial number 89/104 and the Rules of the Commission regarding Partnership Brand, dated December 20, 1993 with serial number 40/94, has found wide field of application in the Decree Law on Protection of Brands. The mentioned effects are especially visible in causes of relative and absolute denial, brand types, and provisions regarding the use and protection of brands. Formal and service brands are also new for the Turkish Legal system. The facts that lead to the Decree Law on Protection of Patent Rights are a bit different. The reform works go back to 1988; thus, this law carries the traits of the Munich Patent Agreement dated 1973, the German Patent Law amended in 1991, the German Law on Useful Model, German Law on Workers' Inventions and the Spanish Patent Law. The Decree Law on Protection of Patent Rights includes translation errors, legal gaps and repetitions. Useful model rights, workers' inventions, mandatory license and patent proxy are the major innovations of the arrangement. This legal reform was followed by the establishment of the Turkish Patent Institution and the Special Courts on Intellectual and Industrial Rights. Turkey's membership to the TRIPS agreement and accession to the Customs Union, has put the state under obligations to sign many international agreements in the field of Law on Intellectual and Industrial Law.

In The Truth About OSS-FRAND, David Kappos and Miling Harrington argue that it is both permissible and desirable to charge FRAND (“fair, reasonable, and non-discriminatory”) royalties on open source software (“OSS”) that is incorporated into a standard containing standard-essential patents (“SEPs”). In arguing that OSS and FRAND are compatible in this way, Kappos and Harrington take the position that when standard-setting communities intentionally incorporate OSS-licensed code into a standard, it is the royalty-free status of open source that should give way, not the payment of the FRAND-based royalty. This Comment examines the Open Source Definition (“OSD”), the text of OSD-compliant licenses, and discussions surrounding their creation to conclude, contrary to Kappos and Harrington, that essentially every OSD-compliant open-source license includes a royalty-free patent grant, which precludes the imposition of FRAND-based royalties. Standard-setting organizations that wish to charge FRAND royalties ultimately have the same option that commercial enterprises have when dealing with open source: respect OSD licenses, including their implied royalty-free patent grants, or create an alternative commercial license that conveys no patent grant.