South‐North Trade, Intellectual Property Jurisdictions, and Freedom to Operate in Agricultural Research on Staple Crops

Abstract

A biotechnology revolution is proceeding in tandem with international proliferation of intellectual property regimes and rights. Does the intellectual property impede agricultural research conducted in, or of consequence for, developing countries? This question has important spatial dimensions that link the location of production, the pattern of international trade, and the jurisdiction of intellectual property. Our main conclusion is that the current concerns about the freedom to operate in agricultural research oriented towards food crops for the developing world are exaggerated. Rights to intellectual property are confined to the jurisdictions where they are granted, and, presently, many of the intellectual property (IP) rights for biotechnologies potentially useful to developing-country agricultural producers are valid only in developed countries. IP problems might arise in technologies destined for crops grown in developing countries unencumbered by IP restrictions, if those crops are subsequently exported to countries in which IP is likely to prevail. Thus freedom to trade is also part of the IP story. However, using international production and trade data in the 15 crops critical to food security throughout the developing world, we show that exports from developing to developed countries are generally dwarfed by production and consumption in the developing world, the value of these exports is concentrated in a few crops and a few exporting countries, and the bulk of these exports go to Western Europe. Thus for now, most LDC researchers can focus primarily on domestic IPR in determining their freedom to operate with respect to food staples. Undue concern with current freedom to operate is diverting attention from the lack of financial and technical support necessary for the effective generation, evaluation, adaptation, and regulation of newly available technologies by public and international nonprofit breeders in LDCs, given the continued inability of private-sector research to fill the gap.

Private‐sector investment in R&D: a review of policy options to promote its growth in developing‐country agriculture

“…Moreover, some evidence suggests that IPR has only limited impact on agricultural R&D. Binenbaum et al (Binenbaum, Pardey, Zambrano, Nottenburg, & Wright, 2000;Binenbaum, Nottenburg, Pardey, & Zambrano, 2003) argue that the concerns about IPR restricting scientists' freedom to operate are exaggerated with respect to research on food crops in developing countries. More specifically, they argue that modern crop technologies developed in industrialized countries are rarely protected by IPR in developing countries, allowing scientists to conduct research (and farmers to cultivate) crops that embody such technologies without fear of litigation.…”

Free and Open Source Software and Technology for Sustainable Development

“…millet, cassava, potato, sweet potato, banana, cowpea and sorghum) production in developing countries will thus take a long time. Findings on trade data suggest that problems of freedom to operate are more likely to occur in most orphan crops grown in developing countries due to IP protection (Binenbaum et al, 2000).…”

Horticultural biotechnology faces significant economic and market barriers

“…For instance, the government could reform property-rights institutions to increase efficiency and reduce R&D costs. IPRs apply to research processes as well as products, and limited access to enabling technology or simply the high cost of identifying all of the relevant parties and negotiating with them, may be retarding some lines of research -a type of technological gridlock (Binenbaum et al 2003). Nottenburg et al (2002) suggest a government role in improving access to enabling technologies.…”