Intellectual Property Rights and the Public Sector: Why Compulsory Licensing of Protected Technologies Critical for Food Security Might Just Work in China
Ellis, Gregory C., Pacific Rim Law & Policy Journal
Abstract: The majority of people in the developed world have the luxury of never having to address food shortages and malnutrition. In developing countries, however, ensuring food security presents greater challenges. Agricultural biotechnology has the potential to alleviate many of the food crises occurring in developing countries. Unlike private sector corporations, public sector entities are creating genetically modified ("GM") crops to ensure food security. However, the intellectual property rights ("IPRs") to the many technologies required to create a single GM crop are often fragmented across the private and public sectors. Fragmentation of IPRs creates a "patent thicket" that increases the challenges of developing GM crops that are not restrained by freedom to operate complications.
China has a successful agricultural biotechnology industry that is almost entirely public sector. Recently, China strengthened its intellectual property ("IP") laws as a result of its accession to the World Trade Organization ("WTO"). Despite the beneficial effects of harmonizing IP laws among WTO member states, there exists a negative consequence of IP globalization as it pertains to China's public sector-driven agricultural biotechnology industry. Stronger IP laws and enforcement will create an environment more favorable to the interests of foreign private sector entities. Any subsequent introduction of technologies used to create GM crops will result in the protection of such technologies under Chinese law, but without open availability under most circumstances. To reduce the potential frustration of its public sector, China should declare potential food shortages a national emergency. In doing so, China may require compulsory licensing of the technologies necessary to create GM crops essential for food security without violating its WTO obligations. Because the compulsory licenses would be granted only for selected technologies used to create GM crops, such licensing would reduce the negative effects of IPRs fragmentation without raising substantial concerns of compromised innovation resulting from parallel importation.
The developing world has over 800 million undernourished people.1 Nearly eleven million children die each year, with more than half of these deaths resulting from hunger and malnutrition.2 The vast majority of deaths attributable to hunger and malnutrition occur in developing countries.3 Unfortunately, although there is currently enough food to feed the world, it is unequally distributed, as 650 million of the poorest people live where agricultural potential is substandard.4 Additional methods of ensuring food security to prevent hunger and malnutrition beyond the access to food paradigm must, therefore, be considered.5 Food security "exists when all people, at all times, have physical and economic access to sufficient, safe and nutritious food to meet their dietary needs and food preferences for an active and healthy life."6
Agricultural biotechnology is one promising device heralded to be valuable in ensuring food security.7 Agricultural biotechnology research intended to enhance food security in developing countries includes creating GM crops that reduce the use of pesticides, improve stress tolerance, and provide better product quality and increased nutritional value.8
The use of agricultural biotechnology to create GM crops is a contentious issue. Opponents of this technology claim that GM crops are "inherently dangerous,"9 and that the scientific understanding of the impact that GM crops have on the environment and human health is inadequate.10 Some of these concerns are legitimate. For example, in September 2000, trace amounts of a transgenically expressed protein known as Cry9C, which is approved for animal but not human use, was found in Kraft Taco shells in the United States.11 These concerns are especially important in developing countries that are beginning to approve and commercialize GM crops but do not yet have comprehensive regulatory provisions in place. …