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      Technology Paradigms and the Innovation—Appropriation Interface: An Examination of the Nature and Scope of Plant Breeders' Rights

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      plant breeders' rights, intellectual property, biotechnology, patents, seeds
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            Abstract

            Technological change is crucial for the continued socio-economic development of a country. A number of factors underpin a society's ability to foster continuous technological change, one of which is necessarily the conditions for appropriability. These have become increasingly important since the location of technological change remains largely in the hands of organised research centres housed in large corporations. This paper examines a selection of the issues that interface between innovation and appropriability in the case of plant breeding. This industry has only lately become a subject of study, following the increasing industrialisation of farm-related activities, the technological restructuring of breeding through biotechnology, and the enhancement of the scope of intellectual property rights (IPR) in plant breeding.

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            Author and article information

            Journal
            cpro20
            CPRO
            Prometheus
            Critical Studies in Innovation
            Pluto Journals
            0810-9028
            1470-1030
            June 1999
            : 17
            : 2
            : 125-138
            Affiliations
            Article
            8629545 Prometheus, Vol. 17, No. 2, 1999: pp. 125–138
            10.1080/08109029908629545
            1f983c21-f70f-4382-b2d9-5a919afde576
            Copyright Taylor & Francis Group, LLC

            All content is freely available without charge to users or their institutions. Users are allowed to read, download, copy, distribute, print, search, or link to the full texts of the articles in this journal without asking prior permission of the publisher or the author. Articles published in the journal are distributed under a http://creativecommons.org/licenses/by/4.0/.

            History
            Page count
            Figures: 0, Tables: 0, References: 78, Pages: 14
            Categories
            PAPERS

            Computer science,Arts,Social & Behavioral Sciences,Law,History,Economics
            intellectual property,plant breeders' rights,seeds,biotechnology,patents

            Notes and References

            1. Earlier versions of this paper were presented at conferences on Future Location of Research in a Triple Helix of University-Industry-Government Relations (State University of New York, January 1998) and New Developments in Intellectual Property: Law and Economics (St. Peter's College, Oxford, March 1997). The contribution of participants at both conferences is acknowledged, as is advice received from Paul Auerbach, Jean Pierre Berlan, Vince Daly, Stephan Lemairie and Stuart Macdonald.

            2. N. Rosenberg, ‘Science and technology in the twentieth century’, in G. Dosi, R. Giannetti and P. A. Toninelli (eds), Technology and Enterprise in a Historical Perspective, Clarendon Press, Oxford, 1992, pp. 63–96.

            3. R. Nelson and S. Winter, ‘In search of useful theory of innovation’, Research Policy, 6, 1977, pp. 36–76.

            4. G. Dosi, ‘Sources, procedures and microeconomic effects of innovation’, Journal of Economic Literature, 26, 3, 1988, pp. 1120-71 (p. 1127).

            5. T. S. Kuhn, The Structure of Scientific Revolutions, Chicago University Press, Chicago, 1970.

            6. G. Dosi, ‘Technological paradigms and technological trajectories: A suggested interpretation of the determinants and directions of technical change’, Research Policy, 11, 1982, pp. 147–62; Dosi, op. cit., 1988.

            7. N. Rosenberg, Inside the Black Box, Cambridge University Press, Cambridge, 1982; Nelson and Winter, op. cit.

            8. R. Nelson and S. Winter, An Evolutionary Theory of Economic Change, Harvard University Press, Cambridge, MA, 1982.

            9. J. S. Metcalfe, ‘Technology systems and technology policy in an evolutionary framework’, Cambridge Journal of Economics, 19, 1, 1995, pp. 25–46.

            10. Kuhn, op. cit., p. 11.

            11. Dosi, op. cit., 1982.

            12. Nelson and Winter, op. cit., 1982.

            13. C. Freeman, The Economics of Industrial Innovation, Pinter, London, 1982.

            14. C. Freeman and L. Soete, The Economics of Industrial Innovation, Pinter, London, 1997.

            15. Freeman and Soete, op. cit., 1997, chapter 16.

            16. Dosi, op. cit., 1982, 1988; Metcalfe, op. cit., 1995.

            17. Rosenberg, op. cit., 1992.

            18. Once again, it is necessary to maintain a wider appreciation of the factors that generate path-dependencies. For example, the celebrated account of the path-dependencies which led to the development of the QWERTY typewriter keyboard has failed to account for the concerted political resistance mounted by typewriter manufacturers in undermining the claims of the superior alternative—the Dvorak Simplified Keyboard. P. David, ‘Clio and the economics of QWERTY’, American Economic Review, 75, 2, 1985, pp. 332–7; B. Arthur, ‘Competing technologies, increasing returns, and lock-ins by historical small events’, Economic Journal, 99, 1989, pp. 116–31; P. Frost and C. Egri, ‘The political process of innovation’, in L. L. Cummings and B. M. Staw (eds), Research in Organisational Behaviour, Vol 13, JAI, Greenwich, CT, 1991, pp. 229–95.

            19. R. Levin, A. Klevorick, R. Nelson and S. Winter, Appropriating the Returns from Individual Research and Development, Cowles Foundation for Research in Economics, Working Paper 714, Yale University, New Haven, CT, 1989.

            20. J. Nogues, ‘Patents and pharmaceutical drugs: Understanding the pressures on developing countries’, Journal of World Trade Law, 24, 6, 1990, pp. 81–104; R. Merges and R. Nelson, ‘On the complex economics of patent scope’, Columbia Law Review, 90, 4, 1990, pp. 839–916.

            21. K. J. Arrow, ‘The production and distribution of knowledge’, in G. Silverberg and L. Soete (eds), The Economics of Growth and Technical Change, Edward Elgar, Aldershot, 1994, pp. 9–19; K. J. Arrow, ‘Economic welfare and the allocation of resources for invention’, in R. R. Nelson (ed.), The Rate and Direction of Inventive Activity: Economic and Social Factors, Princeton University Press, New Jersey, 1962, pp. 609–25; P. Dasgupta, ‘Patents, priority and imitation, or the economics of races and waiting games’, Economic Journal, 98, 1988, pp. 66–80; P. Dasgupta and J. Stiglitz, ‘Industrial structure and the nature of the innovative activity’, Economic Journal, 90, 1980, pp. 266–93.

            22. R. L. Beck, ‘Patents, property rights and social welfare: Search for a restricted optimum’, Southern Economic Journal, 43, 2, 1976, pp. 1045–55; R. Gilbert and C. Shapiro, ‘Optimal patent length and breadth’, RAND Journal of Economics, 21, 1, 1990, pp. 106–12; W. Nordhaus, Invention, Growth and Welfare: A Theoretical Treatment of Technological Change, MIT Press, Cambridge, MA, 1969; P. Klemperer, ‘How broad should the scope of patent protection be?’, RAND Journal of Economics, 21, 1, 1990, pp. 113–30; W. Nordhaus, The Optimal Life of a Patent, Cowles Foundation for Research in Economics, Working Paper 241, Yale University, New Haven, CT, 1967.

            23. Z. Griliches, Patents, R&D and Productivity, University of Chicago Press, Chicago, 1984; P. Stoneman, ‘Patenting activity: A re-evaluation of the influences of demand pressure’, Journal of Industrial Economics, 27, 1979; Freeman, op. cit.

            24. Merges and Nelson, op. cit.

            25. D. Rangnekar, Innovative Appropriation: The Role of Economics, Science and Law in Transforming Plants into Products, A Case Study of Wheat Breeding in the UK, Ph.D. thesis, School of Economics, Kingston University, forthcoming.

            26. P. Tandon, ‘Optimal patents with compulsory licensing’, Journal of Political Economy, 90, 3, 1982, pp. 470–86.

            27. Gilbert and Shapiro, op. cit.

            28. Klemperer, op. cit.

            29. Merges and Nelson, op. cit.

            30. Ibid., p. 882.

            31. M. Feldman, F. G. H. Lupton and T. E. Miller, ‘Wheat’, in J. Smart and N. W. Simmonds (eds), Evolution of Crop Plants, Longman, London, 1995, pp. 184–92.

            32. D. Fitzgerald, ‘Farmers deskilled: Hybrid corn and farmers’ work’, Technology and Culture, 34, 1993, pp. 324–43.

            33. P. Palladino, ‘Between craft and science: Plant breeding, Mendelian genetics and British universities, 1900-1920’, Technology and Culture, 34, 1993, pp. 300–23.

            34. Advertisement by Major Hallett, a British breeder, in 1887 in J.-P. Berlan, The Political Economy of Agricultural Genetics, mimeo, nd. The attempt was clearly to emphasise the necessity of continuous selection and that these varieties would deteriorate in the hands of the farmers.

            35. F-1 hybrids are the first generation offspring of a cross between two inbred pure lines which differ in one or more genes. One consequence of the cross is that the yields are higher than those of the parents. However, as the F-1 is heterozygous, the genes not being identical at all loci, the subsequent generation does not retain the genetic composition of the parents. Consequently, the yield vigour is not transmitted to the progenies of F-1 hybrids. It is this discontinuous inheritance that is attractive to breeders.

            36. A narrow disease resistance spectrum would make the variety susceptible. Thus, the repeated cultivation of a susceptible variety might induce increased prevalence of a particular pathogen which then contributes to the enhanced vulnerability of the variety. In this manner, the lifespan of varieties is curtailed and farmers maintain their dependence on breeders for new varieties.

            37. This is an entirely new technology announced in a recent US patent (no. 5723765) issued in March 1998 and granted jointly to the US Department of Agriculture and the Delta and Pine Land Company. The technology genetically modifies plants so as to prevent seeds from germinating in the next generation.

            38. Advanced breeding material consists of ‘lines’, released varieties and varieties being trialed by breeders. These varieties are well adapted to local conditions and are quite homogenous in their characteristics as they have already been through a number of cycles of selection. In addition, there is good documentation on the material. See R. J. Cook, V. A. Johnson and R. E. Allen, ‘Wheat’, in Traditional Crop Breeding Practices: An Historical Review to Serve as a Baseline for Assessing the Role of Modem Biotechnology, OECD, Paris, 1993, pp. 27–36; V. A. Johnson, ‘Future prospects in genetic improvement in yield of wheat’, in Genetic Improvement in Yield of Wheat, Crop Science Society of America and American Society of Agronomy, Madison, WI, 1986, pp. 109–14; J. Poehlman and D. Sleper, Breeding Field Crops, Iowa State University Press, Ames, 1995; R. M. Rejesus, S. Smale and M. van Ginkel, ‘Wheat breeders’ perspectives on genetic diversity and germplasm use: findings from an international survey’, Plant Varieties and Seeds, 9, 3, 1996, pp. 129–47.

            39. J.-P. Berlan and R. Lewontin, ‘Breeders’ rights and patenting life forms’, Nature, 322, 1986, pp. 785–8; R. Lewontin and J.-P. Berlan, ‘The political economy or agricultural research: The case of hybrid corn’, in R. Carroll, J. Vandermeer and P. Rosset (eds), Agroecology, McGraw Hill, New York, 1990, pp. 613–28.

            40. F. Buttel and J. Belsky,’ Biotechnology, plant breeding and intellectual property: Social and ethical dimensions’, Science, Technology and Human Values, 12, 1, 1987, pp. 31–49.

            41. J. R. Kloppenburg, First the Seed: The Political Economy of Plant Biotechnology, 1492-2000, Cambridge University Press, Cambridge, 1988; Berlan and Lewontin, op. cit.

            42. T. Groosman, A. Linnemann and H. Wierema, Seed Industry Development in a North-South Perspective, Pudoc, Wageningen, 1991.

            43. Within Europe, since the 1960s, it is statutory for transactions in seeds to be restricted to seeds which have been certified by the relevant national authority. This regulatory control over the seed market is ostensibly directed at ensuring the varietal authenticity and physical reliability of the transacted seeds.

            44. The notion of genetic ‘software’ and ‘diskette’ are from Lewontin and Berlan, op. cit.

            45. P.-W. Lim, The Privatisation of Species: An Economic History of Biotechnology and Intellectual Property Rights in Living Organisms, Ph.D. thesis, Stanford University, 1993, p. 46.

            46. Berlan and Lewontin, op. cit.

            47. S. Jaffee and J. Srivastava, Seed System Development: The Appropriate Roles of the Private and Public Sector, Discussion Paper 167, World Bank, Washington, DC, 1992.

            48. R. Bayles, ‘Research note: Varietal resistance as a factor contributing to the increased importance of Septoria tritici Rob. and Desm. in the UK wheat crop’, Plant Varieties and Seeds, 4, 1991, pp. 177–83.

            49. Rangnkar, op. cit.

            50. UPOV, ‘Industrial property and plant breeders’ rights’, in Industrial Patents and Plant Breeders’ Rights—Their Proper Fields and Possibilities for Their Demarcation, UPOV, Geneva, 1984, pp. 73–95.

            51. This comparison was advanced by the Committee on Transactions in Seeds (1960) in its crucial report on PBR in the UK. The comparison helped generate support for the provision of PBR in the UK, which the Committee had strongly recommended in this report. See Committee on Transactions in Seeds, Plant Breeders’ Rights, HMSO, London, 1960, Cmnd 1092.

            52. P. R. Mooney, ‘The law of the seed: Another development and plant genetic resources’, Development Dialogue, 1983, pp. 1–173; Rangnekar, op. cit.; G. Bugos and D. Kevles, ‘Plants as intellectual property: American practice, law and policy in world context’, Osiris, 7, 1922, pp. 75–104; C. Fowler, Unnatural Selection: Technology, Politics and Plant Evolution, Gordon and Breach, Switzerland, 1994.

            53. Kloppenburg, op. cit.

            54. Fowler, op. cit.

            55. See A. Heitz, ‘The history of plant variety protection’, in The First Twenty-Five Years of the International Convention for the Protection of New Varieties of Plants, UPOV, Geneva, 1987, pp. 53–96; S. Bent, R. Schwaab, D. Conlin and D. Jeffrey, Intellectual Property Rights in Biotechnology Worldwide, Stockton Press, New York, 1987.

            56. B. Laclaviere, ‘The Convention of Paris of December 2, 1961, for the Protection of New Varieties of Plants and the International Union for the Protection of New Varieties of Plants’, Industrial Properly, 10, 1965, pp. 224–8.

            57. Merges and Nelson, op. cit.

            58. S. O. Fejer, ‘The problem of plant breeders’ rights’, Agricultural Science Review, 4, 3, 1966, pp. 1–7; L. Smith, ‘International Convention for the Protection of New Varieties of Plants and some comments on the plant breeders’ rights legislation in the UK’, Industrial Properly, 12, 1965, pp. 275–86; F. E. Nijdam, ‘The Convention of Paris for the Protection of New Varieties of Plants’, Proceedings of the International Seed Testing Association, 32, 2, 1967, pp. 281–91.

            59. Bent et al, op. cit.

            60. Laclaviere, op. cit.

            61. Berlan and Lewontin, op. cit.

            62. Rangnekar, op. cit.

            63. A. Akerman and O. Tedin, ‘Testing of new varieties from the point of view of the plant breeder’, in Development of Seed Production and the Seed Trade in Europe, OEEC and European Productivity Agency, Paris, 1955, pp. 47–53.

            64. G. Weibull, ‘Plant breeders’ rights’, in Development of Seed Production and the Seed Trade in Europe, EPA and OEEC, Paris, 1955, pp. 111–23.

            65. A. F. Kelly, ‘The OEEC scheme for the varietal certification of herbage seed moving in international trade: EPA project 215’, Journal of the National Institute of Agricultural Botany, 8, 1959, pp. 683–87; F. R. Horne and A. F. Kelly, ‘The OECD certification schemes and international trade in seeds’, Proceedings of the International Seed Testing Association, 32, 2, 1967, pp. 259–74.

            66. P. S. Wellington, ‘Crop varieties: their testing, commercial exploitation and statutory control’, Journal of the Royal Agricultural Society of England, 135, 1974, pp. 84–106.

            67. At a highly generalised level, cross-pollinated species and self-pollinated species pose different problems in achieving homogeneity. At a deeper level, it is necessary to evolve standards at the species level, since specific characteristics and the statistical level of homogeneity differ. For example, tuber-propagated species breed through clones and thus easily achieve a very high level of homogeneity.

            68. J. Straus, ‘The relationship between plant variety protection and patent protection for biotechnological inventions from an international viewpoint’, International Review of Industrial Property and Copyright Law, 18, 6, 1987, pp. 723–37. Bent et al., op. cit.

            69. Committee on Transactions in Seeds, op. cit.

            70. UPOV, op. cit.

            71. R. Royon, ‘The limited scope of breeders’ rights under the International Convention for the Protection of New Varieties of Plants’, European Intellectual property Review, 5, 1980, pp. 139–40; J. Straus, ‘Patent protection for new varieties of plants produced by genetic engineering—Should ‘double protection’ be prohibited?’, International Review of Industrial Property and Copyright Law, 15, 4, 1984, pp. 426–42; Bent el al., op. cit.

            72. N. J. Byrne, The Scope of Intellectual Property Protection for Plants and Other life Forms, Common Law Institute of Intellectual Property, London, 1989, p. 52.

            73. P. Lange, ‘Derived plant varieties under the revised UPOV, Plant Variety Protection Gazette and Newsletter, November 1993, pp. 51–63.

            74. W. Lesser, ‘Impacts of seed patents’, North Central Journal of Agricultural Studies, 9, 1, 1987, pp. 37–48; S. Smith, ‘Farmers’ privilege, breeders’ exemption and the essentially derived varieties concept: Status report on current developments’, in J. van Wijk and W. Jaffe (eds), Intellectual Properly Rights and Agriculture in Developing Countries, Amsterdam, 1996, pp. 47–63.

            75. N. Hamilton, ‘Asgrow vs Winterboer case tests interpretation of controversial PVPA farmer exemption’, Diversity, 9, 1-2, 1993, pp. 48–51.

            76. J. Tiedje, ‘Possible effects of recent development in plant-related intellectual property protection in Europe’, in van Wijk and Jaffe, op. cit., pp. 73–81.

            77. J. van Wijk, ‘Farm seed saving in Europe under pressure’, Biotechnology and Development Monitor, 17, 1993, pp. 13–14.

            78. A. Coghlan, Farmers and plant breeders lock horns over royalties’, New Scientist, 129, 2 February 1991.

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