1 This chapter in major part is similar to the text of an address entitled 'Agriculture after the Revolutions in Intellectual Property and Biotechnology', presented at a conference on 'From meridianalismo to the Third Millennium Agriculture', on the occasion of the centennial of the birth of Manlio Rossi-Doria, Centro per la Formazione in Economia e Politica dello Svilluppo Rurale, University of Naples Federico II, Faculty of Agriculture, Portici, 27 October 2005, which will be published in Italy. It is presented here with the kind permission of the director, Dr Francesco de Stefano.
2 See Moschini (2004) for more information on TRIPS and its implications for agriculture.
3 Ryan (1998) discusses, from a US viewpoint, how bilateral trade sanctions by the USA under Section 301 of the Trade Act (which defines failure to protect IPRs as an unfair trade practice), made credible by their actual imposition on Brazil, helped bring developing countries to the negotiating table for TRIPS at the WTO.
4 See Plant (1934) and Machlup (1958) for classic reviews of the case for patents from a British and an American perspective, respectively.
5 Scotchmer (2004b) correctly identifies the benefits for less developed countries of national treatment (non-discriminatory treatment of foreign patent applicants, as mandated by the Paris Convention) and worldwide protection, relative to a system with neither. But she does not consider the alternative that combines national treatment with weaker protection in developing than developed countries.
6 Nations that have committed to patenting of plants and animals, not mandated under TRIPS, include Jordan, Morocco, Laos, Mongolia, Singapore, Sri Lanka, Chile and Nicaragua. Others have committed to IPP beyond the TRIPS requirements. Available at: http://www.grain.org/rights/tripsplus.cfm?id=68
7 Monsanto Canada v Schmeiser, S.C.R. 902, (2004).
8 Of 15 genetically modified organisms (GMOs) reported as released varieties in FAO (2005, Table 13, p. 43), all but 1 of the non-Chinese varieties appear to be imported, if Bulgarian maize and Indonesian cotton, for which the origin of the transgenic variety is not reported, are included. Koo et al. (2004) report that all the officially approved Monsanto/DeltaPine bioengineered cotton varieties grown in China are the same varieties grown in the USA. Likewise, the transgenic cotton varieties grown in Mexico are from the USA, while in South Africa, NuCotn 37-B, an American variety, is widely used.
9 Between 2000 and 2004, 52% of all USDA-regulated crop field trials, public and private, have been carried out by Monsanto (Information Systems for Biotechnology website available at: http://www.nbiap.vt.edu/cfdocs/fieldtests1.cfm).
10 Interventions include Monsanto's commitment to the United States Department of Justice to divest its agrobacterium transformation technology for corn, as a condition for the acquisition of DeKalb Agrigenetics. The technology was placed under the control of University of California. It is my understanding that this technology has never been licensed to an innovator. Other antitrust interventions helped discourage a proposed Monsanto merger with the cotton seed firm, Delta and Pine Land, and ensured continued access of breeders, for a limited period, to the corn germplasm of Holden's Foundation Seed, after the latter's acquisition by Monsanto.
11 There are, however, signs of increasing interest in applications of biotechnology in non-food ornamentals and turf grasses in wealthy countries. Monsanto also recently acquired Seminis, a leading horticultural germplasm breeder.
12 Follow-up interviews made it clear that reports that a project was affected referred to one line of investigation in a larger research enterprise, rather than an entire independently funded project.
13 See the survey of scientists in genomics, proteomics and related fields by Walsh et al. (2005), commissioned by the National Academy of Sciences Committee on Intellectual Property Rights in Genomic and Protein-Related Innovation, formed at the request of the National Institutes of Health.
14 This project was led by Bob B. Buchanan and Peggy G. Lemaux of the College of Natural Resources, University if California, Berkeley, whom we thank for this information.
15 The donations more typically take the form of grants of physical access to constructs and other crop improvement materials and expertise, by means of Material Transfer Agreements, rather than of transfers of IP per se.
16 This phenomenon is characteristic of the power of farmers, North or South, to trump public regulation withholding innovations, when the apparent returns are sufficiently attractive. A similar loss of control occurred on two separate occasions with respect to new technologies for biological control of rabbits in Australia.
17 The letter included the following, as reported in the Consolidate Class Action Complaint (RMB), United States District Court, Southern District of New York, In Re Fresh Del Monte Pineapples Antitrust Litigation, 4 August 2004, at 20:
Fresh Del Monte Produce Company is aware that your company has acquired pineapple plant material and is researching the growth and production of pineapple plants. Del Monte has also learned of an organized effort to steal this planting material from the Del Monte plantation for propagation.
Be advised that Del Monte is the developer of this plant material and intends to protect its interests as necessary. In addition, be advised that Del Monte owns US Patent Number. Plant 8863, dated 16 August 1994.
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