Patents and the traditional bio-innovation predicament: Critical perspectives

• Date: 12 February 2020
• Pages: 53-70
• Published date: 12 February 2020
• Citation: (2019) IPLJ 53
• Author: Gebrehiwot, T.D.

53

PATENTS AND THE TRADITIONAL

BIO-I NNOVATION PREDICAMENT:

CRITICAL PERSPECTIVES



Post-Doctoral Fellow of the So uth African Research Chair in Law, Soci ety and

Technology, College of Law, University of S outh Africa

ABST RACT

The aim of this pa per is to analyse th e application of intelle ctual proper ty (IP) law in

agricult ural innovat ion. Today, global agricultu re and food indust ries are chang ing

due to new technolog ical development. This s tudy evaluates t he complex relationsh ips

underlying forc es operatin g between tra ditional bio-in novations and mode rn technologie s.

It is importa nt to note that society is cu rrently faced wit h both technology and k nowledge

transfer, while t he market-driven intel lectual propert y law operates on an individ ualistic

and permi ssion-based platform aime d at protecting the indiv idual’s right of ownership in

his or her knowledge. T he application of patent law in ag riculture is expa nding apace and

beyond all expect ation. This notwith standing, or possibly for thi s very reason, the cour ts

across the world are by a nd large struggling t o establish an appropriat e legal framework

       

economic development of so ciety.

KEYWORDS: patent s; law; bio-innovation; tra ditional; intellect ual property

1. INTRODUCTION

This paper aims t o analyse the application of intellectual p roperty (IP) law

in agricultu ral innovation. The st udy evaluates the complex relationships

underlying forces operat ing between trad itional bio-innovations and moder n

technologies with part icular reference to developing countr ies. This paper

selected two countries for t heir challenge and experience in this regard: Sout h

Africa and Ind ia. It is important to note th at society is currently fac ed with

both technology and knowledge tr ansfer, while the market-driven intellectual

property law oper ates on an individualist ic and permission-base d platform

aimed at protecting t he individual’s right of ownership in his or her knowledge.

The application of patent law in agricu lture is expanding apace and beyond

all expectation. Th is notwithstandi ng, or possibly for this very reason, the

courts acros s the world are by and large struggling to establish a n appropriate

legal framework for agricult ural innovation. Stud ies suggesting solutions to

          

support f rom the South Afr ican Research Ch air in Law, Society an d Technology, funded by

the Depar tment of Science and Technolog y (DST), admi nistered by the Nat ional Research

Foundation (N RF), and hoste d by the College of Law, University of Sou th Africa (U NISA).

Opinions exp ressed, and conclus ions arrived at, a re those of the author and a re not necessari ly to

be attribu ted to the DST or NRF. This pa per forms part of, a nd was drawn fro m, my PhD Thesis:

‘Intellectu al Propert y Law, Food and Agricultu ral Law and Food Secur ity: The Case of Sout hern

Africa’ (Pre toria, 2017).

(2019) IPLJ 53

© Juta and Company (Pty) Ltd

           

few and far between. Appropr iate legal parameters for aspe cts such as the

techniques used i n plant breeding or genetic man ipulation, which arise from

developments in patentable agricult ural technology and new plant va rieties,

need to be established.

Further more, the current econom ic framework has its roots in the

agricultu re of the developed world. Currently, 90% of the genetically

      

from the developed world: Kraft (USA); Nestle (Switzerland); Coca-Cola

(USA); PepsiCo (UK); Kellogg’s (USA); Mars (UK); General Mills (USA);

and Unilever (Dutch-UK).1

The market concentrat ion and monopoly by large-scale farmers a nd

industrial pro cessing in the developed world, has had the resu lt that ordinary



divide between developed and developing countr ies in the agricultural sector

has fur ther depleted living resourc es (which also drives out the traditiona l

       

For example, an American agrochem ical and agricultu ral biotechnology

   

market and 93% of the soy market globally.2

            

countries and al leviating poverty/food shortages i n the developing world. In

       

food to the developing world as claimed, the resulting pat ented seed is sold

to low-income farmers who must pay a higher pr ice, reducing their choice

and control of the natura l orderliness of farmi ng.3 This is because count ries

will continue depend ing on the multinational compa nies who market GM

seeds and relevant ferti lisers rather than t raditional seed, a nd in the process,

the capacity of farmer s will dimin ish together with their tr aditional and

sustai nable farming prac tices.

This creates an e conomic imbalance and dist urbs the economic str ucture

    

and affects people’s lives fundamentally.

Today, many regions in the world suffer from severe shortages of food

        

multinational cor porations, regrett ably, by and large, appear to see these

 

1 J Wilton ‘The eight compa nies which s tock 90 per c ent of groce ry foods , all use ge netically m odif ied

ingredients’, available at http://www.twitter.com/i_am_jessicah/status/645424616672923648

(accessed on 23 Augu st 2017).

2 Anonymous ‘Or ganic consume r association US an d Monsanto domin ate global market for

GM seeds (2013)’, available at https://www.organicconsumers.org/essays/us-a nd-monsanto-

dominate-global-market-gm-seeds (accessed on 4 Se ptember 2019).

3 S Hellsten ‘Genet ic Modification (GMOs): Food’. In H. ten Have (eds) Encyclopedia

of Global Bioethi cs (2015), available at https://lin k.springe r.com/referenceworke ntry/

10 1007/978-3-319-05544-2_211-1 (accessed on 4 Septemb er 2019).

54 South African Intellectual Property Law Journal (2019) 7

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