The Application of TRIPS to GMOs: International Intellectual Property Rights and Biotechnology
Strauss, Debra M., Stanford Journal of International Law
TABLE OF CONTENTS INTRODUCTION I. U.S. PATENT LAW AND GENETICALLY MODIFIED PLANTS II. EUROPEAN AND NATIONAL TREATMENT OVERSEAS III. POTENTIAL NEGATIVE IMPACTS A. Pirated and Sterile Seeds B. Creation of Monocultures C. Constricting Markets, Innovation, and Scientific Resources D. Discouraging Developing Countries IV. THE TREATMENT OF GMOS BY TRIPS AND OTHER TREATIES A. Convention on Biological Diversity B. Cartegena Protocol on Biosafety C. Post-TRIPS Strategies and Treaties by Developing Countries D. FAO Undertaking as an International Initiative V. FROM TRADE TO PUBLIC INTEREST
Through genetic engineering, the DNA of one organism is inserted into the genes of an unrelated species, generating the desired trait in every cell of the target organism and producing genetically modified food. (1) In the case of a genetically modified plant, the desired trait is typically a resistance to sprayed pesticides or a toxicity towards predatory insects. (2) In the process, scientists created a technology that has morphed into a creature of economics, of the privatization of the natural world, and of international trade. (3) It is not surprising, then, that the next frontier in the battle over genetically modified organisms (GMOs) manifests itself in the context of intellectual property rights. Ironically, the issues raised are no longer merely matters of science and the answers no longer hinge on scientific knowledge, which has proven inadequate. (4) Instead, policy makers should use a broader perspective to examine the critical implications for the international community and reshape this application of intellectual property in line with the long-term public interest.
First, it is important to acknowledge that global business stands behind biotechnology. Worldwide, the adoption of genetically modified crops has surged exponentially since its inception, with the area of farmland increasing by sixty times in its first decade from 1996 to 2006. (5) In 2006, the global area of biotech crops continued to grow at a double-digit rate of 13%, or 12 million hectares (30 million acres), reaching 102 million hectares (252 million acres), 54% of which proliferated in the United States. (6) In the United States in 2007, 91% of all soybeans, 87% of cotton, and 73% of corn consisted of genetically modified strains, genetically engineered mainly to control weeds and insects. (7) As a result, most of the food products on U.S. grocery shelves now contain GMOs. (8)
The global biotech market currently produces $5.5 billion per year. (9) Monsanto, the biggest proponent of genetically modified crops, has touted record profits and reaps 60% of its revenue from biotech seeds. (10) These biotechnology companies have pressed the U.S. government to shape the law in favor of their property rights in this technology. Despite its foundation of natural plant material, the United States not only allows but vigorously encourages patenting the genetic modifications to these plants. (11) As a result, the number of agricultural biotechnology patents in the United States has risen dramatically. In plant technology, a total of 2,976 patents had been awarded as of 2000, 68% of which occurred in the most recent four-year period. (12) Similarly, 66% of the 4,129 total patents for genetic transformations were awarded between 1996 and 2000. (13) Out of all U.S. agricultural biotechnology patents awarded, most have been awarded to U.S. firms (4,331), followed by non-U.S. firms (3,051) and U.S. nonprofits (2,344). The U.S. government also owns a significant number of patents (421), mostly in joint ventures with private industry. (14)
As such patents have proliferated, ownership of these patents has become concentrated in a small number of companies, a trend which has been heightened by mergers in the industry. (15) One survey revealed that 71% of all agribiotechology patents are owned by the top five companies in the field: Pharmacia (now owned by Pfizer, Inc. …