No CrossRef data available.
We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Close this message to accept cookies or find out how to manage your cookie settings.
We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Close this message to accept cookies or find out how to manage your cookie settings.
Published online by Cambridge University Press: 24 January 2025
Recognising the importance of species diversity in conserving and exploiting plant genetic resources for food and agriculture, international and domestic arrangements have attempted over the decades in situ conservation, ex situ germplasm collections and germplasm exchange mechanisms. These initiatives established valuable resources for the development of new crop and forage plant varieties but there were no uniform or binding arrangements for conserving and accessing these resources. A more formal and uniform arrangement to both facilitate the conservation and exchange of some crop and forage plant genetic materials and share the benefits is now addressed in the International Treaty on Plant Genetic Resources for Food and Agriculture (‘PGRFA Treaty’). The Food and Agriculture Organization of the United Nations (‘FAO’) adopted the PGRFA Treaty in 2001, although it has not yet entered into force. A separate and distinct PGRFA Treaty was the culmination of the re-negotiation of the United Nations' International Undertaking on Plant Genetic Resources for Food and Agriculture recognising ‘the special nature of agricultural biodiversity, its distinctive features and problems needing distinctive solutions’.
While I accept all responsibility for this work, I appreciate the guidance and suggestions from the anonymous referees. This work was supported by an Australian Research Council grant to research 'Gene Patents in Australia: Options for Reform'.
1 For a summary of these measures see Conference of the Parties to the Convention on Biological Diversity, Progress Under the FAO Global System for the Conservation and Sustainable Utilization of Plant Genetic Resources for Food and Agriculture, UNEP/CBD/COP/3/15 (1996); Conference of the Parties to the Convention on Biological Diversity, FAO Global System for Plant Genetic Resources for Food and Agriculture, UNEP/CBD/COP/2/18 (1995).
2 Opened for signature 3 November 2001, [2002] ATNIF 14 (not yet in force); '[t]he Government proposes to deposit Australia's instrument of ratification as soon as practicable after the end of the tabling period': International Treaty on Plant Genetic Resources for Food and Agriculture, National Interest Analysis (2002) [4] (tabled in the House of Representatives on 3December 2002); although note that the Parliament's response has not yet been finalised: 'The committee has informed the Minister for Foreign Affairs and the Minister for Agriculture, Fisheries and Forestry that additional time is required beyond the usual 20 sitting day period to consider the proposed treaty action. The additional time will allow the committee to consider concerns raised by key industry stakeholders, such as the Grains Council and Seed Industry Association of Australia, on the detailed financial, technical and policy implications of ratifying the [PGRFA T]reaty': Commonwealth, Parliamentary Debates, House of Representatives, 25 March 2003, 13 474 (Julie Bishop MP).
3 Adoption of the International Treaty on Plant Genetic Resources for Food and Agriculture and Interim Arrangements for its Implementation, Res 3, UN FAO, 31st sess, conf (2001); see also Conference of the United Nations Food and Agriculture Organization,International Undertaking on Plant Genetic Resources for Food and Agriculture, C 2001/16 (2001); the PGRFA Treaty enters into force after the fortieth instrument of ratification, acceptance, approval or accession is deposited, at least twenty being from FAO members (art 28(1)); countries have agreed to continue inviting ratification: see, eg, 'Plan of Implementation of the World Summit on Sustainable Development', UN Report of the World Summit on Sustainable Development (2002) 6, 31 [40q].
4 International Undertaking on Plant Genetic Resources, Res 8, UN FAO, 22nd sess, conf (1983); agreed interpretations were subsequently adopted in 1989 (Agreed Interpretation of the International Undertaking, Res 4, UN FAO, 25th sess, conf (1989) and Farmer's Rights, Res 5, UN FAO, 25th sess, conf (1989)) and in 1991 (Res 3, UN FAO, 26th sess, conf (1991)) and annexed to the Undertaking.
5 Conference of the Parties to the Convention on Biological Diversity, FAO Global System for the Conservation and Utilization of Plant Genetic Resources for Food and Agriculture, Decision II/15, UNEP/CBD/COP/2/19 (1995) 26.
6 A useful statement of the applicable laws and policy issues relating to agriculture and under consideration in international fora are discussed in Michael Blakeney, 'Access to Genetic Resources, Gene-Based Inventions and Agriculture' (Study Paper No 3b, Commission on Intellectual Property Rights, 2002); Dwijen Rangnekar, 'Access to Genetic Resources, Gene-Based Inventions and Agriculture' (StudyPaper No 3a, Commission on Intellectual Property Rights, 2002).
7 Opened for signature 5 June 1992, [1993] ATS 32 (entered into force generally and for Australia on 29 December 1993).
8 Biological diversity may be considered at three levels, genetic diversity, species diversity and ecosystem diversity: see Commonwealth Department of the Environment, Sport and Territories, National Strategy for the Conservation of Australia's Biological Diversity (1996) 1.
9 Aspects of the CBD are included in domestic Australian legislation as the Environment Protection and Biodiversity Conservation Act 1999 (Cth), with access to genetic resources addressed in s 301; although there are a number of other laws that affect various other aspects of access: see, eg, Wildlife Protection (Regulation of Exports and Imports) Act 1982 (Cth), Customs(Prohibited Exports) Regulations 1958 (Cth).
10 Marrakesh Agreement Establishing the World Trade Organisation [1995] ATS 8, Annex 1C (entered into force generally and for Australia 1 January 1995).
11 The Patents (World Trade Organization Amendments) Act 1994 (Cth) amended the Patents Act 1990 (Cth) to be consistent with TRIPS by extending the patent term to 20 years, onus requirements for infringement proceedings, compulsory licenses and Commonwealth and State use of a patent; the statutory 'exclusive rights' under the Patents Act are, 'during the term of the patent, to exploit the invention and to authorise another person to exploit the invention' (Patents Act 1990 (Cth) s 13(1)); these rights are 'personal property' that is 'capable of assignment and of devolution by law' (PatentsAct 1990 (Cth) s 13(2)); the term 'exploit', 'in relation to an invention, includes: (a) where the invention is a product – make, hire, sell or otherwise dispose of the product, offer to make, sell, hire or otherwise dispose of it, use or import it, or keep itfor the purpose of doing any of those things; or (b) where the invention is a method or process – use the method or process or do any actmentioned in paragraph (a) in respect of a product resulting from such use': Patents Act 1990 (Cth) sch 1.
12 The Plant Breeder's Rights Act 1994 (Cth) implements the International Convention for the Protection of New Varieties of Plants, opened for signature 19 March 1991, [2000] ATS 6 (entered into force generally 24 April 1998 and for Australia 20 January 2000) (based on 2 December 1961 agreement, as revised 10 November 1972 and 23 October 1978); the statutory 'exclusive rights' under the Plant Breeder's Rights Act 1994 (Cth) are 'to do, or to license another person to do, the followingacts in relation to propagating material of the variety: (a) produce or reproduce the material; (b) condition the material for the purpose of propagation; (c) offer the material for sale; (d) sell the material; (e) import the material; (f) export the material; (g) stock the material for the purposes described in paragraph (a), (b), (c), (d), (e) or (f)' (s 11), except private and non-commercial purpose acts (s 16(a)), experimental purposes (s 16(b)), the breeding of other plant varieties (s 16(c)) and conditioning for 'reproductive purposes' or reproduction (such as farm saved seeds): s 17.
13 This is an ongoing debate between at least two different views about the benefits of intellectual property rights: one view emphasises the need for more intellectual property rights to encourage more innovation, and the contrary 'monopoly distortions' view emphasises the costs of intellectual property rights as extracting too high a cost through monopoly distortion in the market; see generally Drahos, Peter with Braithwaite, John, Information Feudalism: Who Owns the Knowledge Economy? (2002);Google Scholar Christopher May, A Global Political Economy of Intellectual Property Rights: The New Enclosures (2000); Jay Kesan, 'Intellectual Property Protection and Agricultural Biotechnology: A Multidisciplinary Perspective' (2000) 44 American Behavioural Scientist 464.
14 The social costs are higher prices, restricted outputs, subsidised foreign inventors and the administrative costs of the schemes: see, eg, Industrial Property Advisory Committee, Patents, Innovation and Competition in Australia: A Report to the Hon Barry O Jones MP Minister for Science and Technology (1984) 13.
15 Such as, 'the uncertainty of payoff from R&D and innovative activity' and 'the limited ability of the inventor/innovator to appropriate profits arising from the use of the new knowledge generated': see ibid 12; Bureau of Industry Economics, 'TheEconomics of Patents' (Occasional Paper No 18, 1994) 13.
16 Trade Practices Commission, Application of the Trade Practices Act to Intellectual Property (1991) 8; for a review of the policy objectives of patenting see Thomas McCarthy, 'Intellectual Property and Trade Practices Policy: Coexistence or Conflict? The American Experience' (1985) 13 Australian Business Law Review 198, 200-3.
17 This is a regularly expressed contention; see for a recent topical example National Interest Analysis, aboven 2, [5]-[8] (tabled in the House of Representatives on 3 December 2002): 'Australian food and agriculture sectors depend almost entirelyon access to overseas sources for [plant genetic resources for food and agriculture] for continued plant improvement and development': at [7].
18 To meet the demands of an estimated two billion more humans by 2020 and the increasing demands of enlarging populations of urbanised and wealthy consumers – there appears to be a consensus in the literature with numerous commentary on these points; see, eg, Lloyd Evans, Feeding the Ten Billion: Plants and Population Growth (1998).
19 For a recent articulation of this viewpoint that asserts and assumes public benefits see Organisation for Economic Co-operation and Development, Genetic Inventions, Intellectual Property Rights and Licensing Practices: Evidence And Policies (2002) 19.
20 PGRFA Treaty, opened for signature 3 November 2001, [2002] ATNIF 14, art 12(3)(d) (not yet in force); see further below, text accompanying nn 33-4.
21 See below, text accompanying n 39.
22 Article 10(1).
23 Article 10(2).
24 Article 10(1).
25 Article 1(1).
26 Meaning 'any genetic material of plant origin of actual or potential value for food and agriculture' (art 2); the term 'genetic material' is defined to mean 'any material of plant origin, including reproductive and vegetative propagating material, containing functional units of heredity': art 2.
27 Article 11(1).
28 Article 11(2).
29 Article 11(5); according to agreements determined between the Governing Body and International Agricultural Research Centres of CGIAR (art 15(1)): see Commission on Genetic Resources for Food and Agriculture, Renewal of the Agreements Between the International Agricultural Research Centres of the CGIAR and FAO and Draft Revised Material Transfer Agreement, CGRFA-9/02/20 (2002) 1; for a review of the CGIAR centres' structures and organisation see Jock Anderson, 'Selected Policy Issues in International Agricultural Research: On Striving for International Public Goods in an Era of Donor Fatigue' (1998) 26 World Development 1149.
30 Article 11(2); note that Contracting Parties also agreed to 'take appropriate measures to encourage natural and legal persons within their jurisdiction who hold plant genetic resources for food and agriculture listed in Annex I' to include such materials in theMultilateral System (art 11(3)), subject to possibly excluding these persons from future access to the Multilateral System (see art 11(4)).
31 Article 12(4).
32 Article 12(4).
33 Article 12(3)(d); the MTA conditions are to apply to subsequent transfers of the Multilateral System's materials: art 12(4).
34 Commission on Genetic Resources for Food and Agriculture, Report of the Commission on Genetic Resources for Food and Agriculture, CGRFA-Ex 6/01/REP (2001) app B(B9).
35 Council of the Food and Agriculture Organization of the United Nations, International Undertaking on Plant Genetic Resources Information Pursuant to Rule XXI.1 of the General Rules of the Organization, CL 121/5-Sup.1 (2001) 7.
36 Noting that the PGRFA Treaty obliges Contracting Parties to 'ensure the conformity of its laws, regulations and procedures with its obligations as provided in the [PGRFA] Treaty': art 4.
37 CL 121/5-Sup.1, above n 35, 6.
38 Ibid.
39 Ibid.
40 Ibid 7-8.
41 Ibid 14.
42 Ibid 15.
43 Ibid 21; as a measure of its reservations the United States had called for a majority vote on removing the intellectual property provision entirely, but this was defeated 97 votes opposed, ten votes in support and three abstentions; despite these concerns the PGRFA Treaty was adopted by 116 votes in favour and two abstentions (Japan and the United States); Japan abstained on the basis it would consult with itscapital on the consistency of the PGRFA Treaty, and in particular the operation of the intellectual property provision, while the United States abstained on the bases that the intellectual property provision failed to protect intellectual property rights necessary to promote innovation, and its reservations about the ambiguous language of the PGRFA Treaty and a failure to include an essential security clause (for a report on thenegotiation and voting see ETC Group, 'The Law of the Seed!' (2001) 3 Translator 1); the proposed United States' essential security provision: '[n]othing in this Undertaking shall be construed to prevent a Contracting Party from taking any action that it considers necessary for the protection of its essential security interests': CL 121/5-Sup.1, above n 35, 22); the United States later clarified that the absence of an essential security clause 'precluded' it from ever ratifying the PGRFA Treaty (with the effect of excluding the United States from further participation in the PGRFA Treaty's interim committee, although the United States has now signed the PGRFA Treaty (see The United States Mission to the United Nations Agencies in Rome, 'U.S. Signs the International Treaty on Plant Genetic Resources for Food and Agriculture' (Statement, 1 November 2002)) saying:
As a signatory to the Treaty, the United States will actively participate in the development of a standard material transfer agreement under the aegis of the Treaty. The benefit-sharing and intellectual property rights of this material transfer agreement will likely create a de facto global standard for agreements on international exchanges of plant genetic resources. The United States seeks to ensure that this agreement will be simple to administer and that it will promote, not impede, international exchanges of plant genetic resources. The decisionto proceed with U.S. ratification, however, will depend on the satisfactory resolution of outstanding issues related to benefit-sharing, intellectual property rights and financial responsibilities.
See also The United States Mission to the European Union, 'U.S. Signs International Plant Genetic Resources Treaty' (Press Release, 6November 2002).
44 The Governing Body, composed of all the Contracting Parties, implements the PGRFA Treaty and determines the details of its policy, programs and the distribution of the financial benefits from the Multilateral System: art 19.
45 The requirement to co-operate with the Conference of the Parties ('COP') to the CBD is recognised in the PGRFA Treaty: arts 1(1) and 19(3); further the COP to the CBD has already decided to establish and maintain cooperation with the FAO's Commission on Genetic Resources for Food and Agriculture acting as the Interim Committee for the PGRFA Treaty until entry into force and then with the Governing Body: see Conference of the Parties to the Convention on Biological Diversity, The International Treaty on Plant Genetic Resources for Food and Agriculture, Decision VI/6, UNEP/CBD/COP/6/20 (2002) 92.
46 Noting that some of the plant genetic resources for food and agriculture forming the Multilateral System are outside the scope of the CBD, such as the collections of the CGIAR centres acquired before 29 December 1993.
47 See art 16.
48 Articles 10(2) and 12.
49 Although the Governing Body is presently negotiating a standard MTA with the CGIAR centres that puts the PGRFA Treaty provision's words directly into the proposed MTA: see CGRFA-9/02/20, above n 29, Annex 1.
50 For a recent analysis of this conflict examining genetic resources under the CBD see Charles Lawson and Susan Downing, 'It's Patently Absurd – Benefit-Sharing Genetic Resources from the Sea under UNCLOS, the CBD and TRIPs' (2002) 5 Journal ofInternational Wildlife Law and Policy 211.
51 See CL 121/5-Sup.1, above n 35, 6.
52 For example, Norway considers that '[g]iven the fact that the backbone of the multilateral system now is material in the public domain, it is even more important to avoid any possibilities of “leakage” of material (or options for use) from the system': ibid 17.
53 Ibid 7.
54 Ibid.
55 See CGRFA-Ex 6/01/REP, above n 34, app B(B5).
56 See ETC Group, above n 43, 3.
57 For an assessment of this claim see the various reports about patenting biological materials: Charles Lawson, 'Patenting Genes and Gene Sequences and Competition: Patenting at the Expense of Competition' (2002) 30 Federal Law Review 97; CharlesLawson and Catherine Pickering, 'Patenting Genetic Materials – Failing to Reflect the Value of Variation in DNA, RNA and Amino Acids'(2000) 11 Australian Intellectual Property Journal 69; Charles Lawson, 'Patenting Genetic Materials – Old Rules May Be Restricting the Exploitation of a New Technology' (1999) 6 Journal of Law and Medicine 373; Dianne Nicol, 'Should Human Genes be Patentable Inventions under Australian Law?' (1996) 3 Journal of Law and Medicine 231.
58 The Patents Act 1990 (Cth) and Plant Breeder's Rights Act 1994 (Cth) co-exist leaving the inventor or breeder to determine the best scheme to approach for their innovation; see IP Australia, Australian Patents for Plants (2002) 1.
59 Such as a claim to a process for using parental strains to make the invention that is the F1 progeny: see, eg, DNA Plant Technology Corporation, New Pepper Variety, Australian Standard Patent Application 200143267 (2001).
60 See for examples of broad claims to genetic materials Lawson, 'Patenting Genetic Materials', above n 57, 381-4.
61 Article 1.
62 Article 2.
63 Article 15(1).
64 Article 15(2).
65 Article 15(3).
66 Article 15(4).
67 Article 15(5).
68 Article 15(7).
69 Article 16(1).
70 It 'shall be provided and/or facilitated under fair and most favourable terms, including on concessional and preferentialterms where mutually agreed, and where necessary in accordance with the financial mechanism established by Articles 20 and 21': art 16(2); presumably this also includes the developing and least developed countries as distinguished by TRIPS art 66.
71 Article 16(2).
72 Article 16(3).
73 Article 16(5).
74 Conference of Parties to the Convention on Biological Diversity, The Impact of Intellectual Property Rights Systems on the Conservation and Sustainable Use of Biological Diversity and on the Equitable Sharing of Benefits from its Use, UNEP/CBD/COP/3/22(1996) 4.
75 See, eg, Conference of Parties to the Convention on Biological Diversity, Report of the Ad Hoc Open-Ended Working Group on Access and Benefit-Sharing, UNEP/CBD/COP/6/6 (2001); Conference of Parties to the Convention on Biological Diversity, Access and Benefit-Sharing as Related to Genetic Resources, UNEP/CBD/COP/6/19 (2002); Ad Hoc Open Ended Working Group on Access and Benefit-Sharing, Report on the Role of Intellectual Property Rights in the Implementation of Access and Benefit-Sharing Arrangements,UNEP/CBD/WG- ABS/1/4 (2001); World Trade Organization Council for Trade-Related Aspects of Intellectual Property Rights, The Relationship Between the TRIPS Agreement and the Convention on Biological Diversity – Summary of Issues Raised and Points Made, IP/C/W/368 (2002) (and the references therein).
76 See, eg, UNEP/CBD/COP/6/19, above n 75.
77 See generally UNEP/CBD/COP/3/22, above n 74.
78 Conference of Parties to the Convention on Biological Diversity, The Convention on Biological Diversity and the Agreement on Trade-Related Intellectual Property Rights (TRIPS): Relationships and Synergies, UNEP/CBD/COP/3/23 (1996) 4; eg, Malaysia declared: 'My delegation wishes to state that the terms of transfer of technology referred to in Article 16(2) do not fully reflect the position of my country which requires that such transfer should be specifically on concessional and preferential terms': World Trade Organization Committee on Trade and Environment, Environment and TRIPS, WT/CTE/W/8 (1995) Annex 5.
79 UNEP/CBD/COP/3/23, above n 78, 4; eg, the United States declared: '[i]t is deeply regrettable to us that … a number of issues of serious concern in the United States have not been adequately addressed in the course of this negotiation. As a result, in our view, the test is seriously flawed in a number of important respects': WT/CTE/W/8, above n 78, Annex 5.
80 For a further analysis of this claim see Lawson and Downing, above n 50, 224.
81 Kenya, on behalf of the African Group, see World Trade Organization Council for Trade- Related Aspects of Intellectual Property Rights, Review of the Provisions of Article 27.3(b)–Communication from Kenya on Behalf of the African Group, IP/C/W/163 (1999); see also IP/C/W/368, above n 75, 2.
82 World Trade Organization Council for Trade-Related Aspects of Intellectual Property Rights, Minutes of Meeting Held in the Centre William Rappard on 21 and 22 September 2000, IP/C/M/28 (2000) 43; see also IP/C/W/368, above n 75, 2.
83 See Charles Lawson and Catherine Pickering, 'Controlling Access to Genetic Resources under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) Requires an Assessment of the Effects of the Patents Act 1990 (Cth)' (2002) 13 Australian Intellectual Property Journal 109; Lawson and Downing, above n 50; Charles Lawson and Catherine Pickering, 'The Conflict for Patented Genetic Materials under the Convention on Biological Diversity and the Agreement on Trade Related Aspects of Intellectual Property Rights' (2001) 12 Australian Intellectual Property Journal 104.
84 For example, the COP resolved to invite 'the World Trade Organization to acknowledge relevant provisions of the [CBD] andto take into account the fact that the provisions of the [TRIPS] and the [CBD] are interrelated and to further explore this interrelationship': Conference of Parties to the Convention on Biological Diversity, Access to Genetic Resources, Decision V/26B, UNEP/CBD/COP/5/23 (2000) 200.
85 Conference of Parties to the Convention on Biological Diversity, Access and Benefit-Sharing as Related to Genetic Resources, Decision VI/24A, UNEP/CBD/COP/6/20 (2002) 262.
86 Article 9.
87 Article 10.
88 Article 10.
89 Article 14.
90 Article 16.
91 Articles 22-50.
92 See, eg, Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore of the World Intellectual Property Organization, Operational Principles for Intellectual Property Clauses of Contractual Agreements Concerning Access to Genetic Resources and Benefit-Sharing, WIPO/GRTKF/IC/2/3 (2001).
93 See, eg, IP/C/W/368, above n 75.
94 See Environment Australia, Commonwealth Public Inquiry into Access to Biological Resources in Commonwealth Areas (2000); regulations have been proposed to put the outcome of contracting into effect.
95 See UNEP/CBD/COP/6/6, above n 75.
96 See, eg, the recent Cancun Declaration by like-minded mega-diversity countries seeking to protect their particular interests as a block: Conference of Parties to the Convention on Biological Diversity, Cancun Declaration of Like-Minded Mega-Diversity Countries, UNEP/CBD/COP/6/INF/33 (2002).
97 See Conference of Parties to the Convention on Biological Diversity, Access to Genetic Resources and Benefit-Sharing:Legislation, Administrative and Policy Information, UNEP/CBD/COP/2/13 (1995) 17.
98 The other countries that have not ratified, accepted or approved are Albania, Andorra, Bosnia and Herzegovina, Brunei Darussalam, Cambodia, Equatorial Guinea, Eritrea, Georgia, Holy See, Iraq, Kiribati, Kyrgyzstan, Lao People's Democratic Republic, Niue, Palau, Saint Lucia, Saint Vincent and the Grenadines, Saudi Arabia, Sierra Leone, Somalia, Tajikistan, Thailand, The Former Yugoslav Republic of Macedonia,Tonga, Turkmenistan and Uzbekistan.
99 Maskus, Keith, Intellectual Property Rights in the Global Economy (2000) 237-8Google Scholar.
100 See, eg, the compiled data of trade in patent-dependant goods presented in John Revesz,'Trade-Related Aspects of Intellectual Property Rights' (Staff Research Paper, Productivity Commission, 1999) 61:
comparing the Australian data with the overseas data from 1989 reveals that in recent years, Australia has a greater proportion of imports which are patent- related than any of the other countries examined. Our share of patent-related goods in exports is lower than in most industrialised countries, and comparable to that of a semi-industrialised country like Portugal. The reason for this is Australia's traditional reliance on the exports of primary commodities and the imports of elaborately transformed manufactures. The difference between patent-related exports and imports has in fact narrowed in recent years. It is worth noting from the figures that the share of patent-related exports in trade is particularly high in the leading technology exporting countries such as the United States, Japan, United Kingdom and Germany (at 62).
101 For example, Gross Domestic Product ('GDP') at 1995 prices and 1995 exchange rates for 2002 in billions of United States dollars: Australia – 484.6, United States – 9186.0, Japan – 5606.5, Canada – 741.4 and United Kingdom – 1354.9: Organisation for Economic Co- operation and Development, Main Economic Indicators (March 2003) 247; while the value added in agriculture as a per cent of GDP (including hunting, forestry and fishing) for a similar period: Australia – 3.5, United States – 1.6, Japan – 1.3, Canada – 2.6 and United Kingdom – 0.9: Organisation for Economic Co-operation and Development, Main Economic Indicators (December 2002) 272-5.
102 See World Intellectual Property Organization, Intellectual Property Statistics for 2000, IP/STAT/2000/B (2000) Table I Patents.
103 For an alternative analysis of patent applications and grants among the developing and least developed countries that hold most of the world's genetic diversity see Lawson and Downing, above n 50.
104 There is a considerable literature on this matter: see, eg, Hindmarsh, Richard,'Consolidating Control: Plant Variety Rights, Genes and Seeds' (1999) 44 Journal of Australian Political Economy 58Google Scholar; Lesser, William, 'Intellectual Property Rights and Concentration in Agricultural Biotechnology' (1998) 1 AgBio Forum 56Google Scholar.
105 See review in Rangnekar, above n 6, 13-14 (and the references therein).
106 See Scherer, Frederic and Ross, David, Industrial Market Structure and Economic Performance (3rd ed, 1990) 625-6Google Scholar.
107 For a detailed analysis of the value chain and the role of patents see Kesan, above n 13, 466-76.
108 See, eg, an analysis of the limitations of the Trade Practices Act 1974 (Cth) applying to patented genes and gene sequences: Lawson, 'Patenting Genes and Gene Sequences and Competition', above n 57, 115-28.
109 See Rangnekar, above n 6, 15.
110 See generally Granstrand, Ove, The Economics and Management of Intellectual Property:Towards Intellectual Capitalism (1999)CrossRefGoogle Scholar.
111 See, eg, Genentech's withdrawal from research into erythropoietin once the gene patent had been granted to Amgen: see Lawson and Pickering, 'Patenting Genetic Material', above n 57, 76.
112 See Ted O'Donoghue, Suzanne Scotchmer and Jacques-François Thisse, 'Patent Breadth, Patent Life, and the Paceof Technological Progress' (1998) 7 Journal of Economics and Management Strategy 1; Suzanne Scotchmer and Jerry Green, 'Novelty and Disclosure in Patent Law' (1990) 21 RAND Journal of Economics 131; Intellectual Property and Competition Review Committee, Review of Intellectual Property Legislation Under the Competition Principles Agreement (2000) 138-9; further, the Industry Commission concluded empirical data from Australia and overseas showed patents had limited commercial importance, had limited effectiveness, delayed imitation, failed to provide adequate disclosure and that innovation spill over was limited: see Nicholas Gruen, Ian Bruce and Gerard Prior, 'Extending Patent Life: Is it in Australia's Economic Interests?' (Staff Information Paper, Industry Commission, 1996).
113 For examples, the Rural Industries Research and Development Corporation deals with PBR as if they were the same as patents and attempts no separate analysis: John Asker and Andrew Stoeckel, 'Intellectual Property in Agricultural Trade' (Rural Industries Research and Development Corporation, 1999); the House of Representatives Standing Committee on Primary Industries and Regional Services, Parliament of Australia, Work in Progress: Proceed with Caution – Inquiry into Primary Producer Access to Gene Technology (2000), said inconsidering patents and plant breeder's rights over genetically modified organisms 'it would not be in the interests of Australian agriculture overall to change the current arrangements' (at 114), although there was no analysis of the interaction between patents and plant breeder's rights and the reasons for this conclusion were not presented.
114 A notable exception has been the Expert Panel on Breeding, Clarification of Plant Breeding Issues Under thePlant Breeder's Rights Act 1994 (2002) 26-8, although this analysis was brief and inconclusive: '[t]he effect of the [Plant Breeder's Rights Act] should be to encourage breeders and biotechnologists to work cooperatively to [their] mutual benefit, and should not alienate the parties by polarising their efforts': at 28.
115 For an analysis and criticism of Australia's implementation of the CBD's access scheme in the Environmental Protection and Biodiversity Conservation Act 1999 (Cth) s 301 see Lawson and Downing, above n 50, 228-30.
116 For analyses of the patenting activity in key crops in the United States see Peter Philips and Dan Dierker, 'Public Goodand Private Greed: Realising Public Benefits from Privatised Global Agrifood Research' in Pardey, Philip (ed), The Future of Food: Biotechnology Markets and Policies in an International Setting (2001) 129, 131Google Scholar.
117 Price, Steven, 'Public and Private Plant Breeding' (1999) 17 Nature Biotechnology 938CrossRefGoogle ScholarPubMed.
118 Julian Alston and Raymond Venner, 'The Effects of the US Plant Variety Protection Act on Wheat Genetic Improvement' (EPTD Discussion Paper No 62, International Food Policy Research Institute, 2000); see also Rangnekar, above n 6, 9-12; for acontrasting view see Greg Traxler, 'Balancing Basic Genetic Enhancement and Cultivar Development Research in an Evolving US Plant Germplasm System' (1999) 2 AgBio Forum 43, although this latter paper, like many others promoting the benefits of plant intellectual property rights, fails to provide empirical data or analysis in support of its assertions.
119 See, eg, the critique of Boyle, James, Shamans, Software and Spleens – Law and the Construction of the Information Society (1996) 197CrossRefGoogle Scholar: '[t]he blandishments of the international information industries notwithstanding, more intellectual property rights may actually mean less innovation, less heterogeneity in culture and environment and a less informed world of public debate' (emphasis in original).
120 See Food and Agriculture Organization of the United Nations, The State of the World's Plant Genetic Resources for Food and Agriculture (1998) ch 1.
121 See, eg, Conway, Gordon Toenniessen, Gary, 'Feeding the World in the Twenty-First Century' (1999) 402 Nature C55CrossRefGoogle ScholarPubMed.
122 Current plant transformation techniques always introduce genetic material, although in future, techniques such as homologousallelic recombination should enable the replacement of genetic materials: see for a discussion Richard Jefferson, 'Transcending Transgenics:Are There “Babies in the Bathwater“ or is That a Dorsal Fin?' in Pardey, Philip (ed), The Future of Food: Biotechnology Markets and Policies in an International Setting (2001) 75, 83-6Google Scholar.
123 See Clive Stannard, 'Genetic Resources: Adding Value or Biopiracy?' (Paper presented at the WIPO Conference on the International Patent System , Geneva, 25-March 2002):
Classical plant breeding involves the incremental improvement of crop varieties. It is employed at intra-specific level, not at species level, and crosses and selects from a very wide range of varieties to create an improved genome. Characteristically, some tens of parent varieties are involved, over many years, each of which is itself the result of earlier generations of formal or informal breeding, and which already share most of their genomes. The product is again a variety, either released without intellectual property protection by the public sector, or when produced in the private sector, most frequently released under plant varietal protection (such as the UPOV system), where the object of protection is the variety, not the gene, and where, in fact, the so-called 'breeder's exemption' allows anyone – farmer or breeder – to usethe genes within a protected variety. Individual resources infrequently provide large- scale appropriable benefits.
124 See, eg, National Interest Analysis, above n 2, [5]-[8].
125 Plant Breeder's Rights Act 1994 (Cth) s 16(b), (c).
126 This has already surfaced as a problem and accounts for the reluctance of some Contracting Parties to include certain plant genetic resources for food and agriculture within the Annex 1 list (see Table 1), and as a consequence these materials were included in negotiations but left off the list (see Table 2): see CGRFA-Ex 6/01/REP, above n 34.
127 See, eg, Maskus, above n 99, 238.
128 See generally Per Pinstrup-Andersen and Marc Cohen, 'Achieving Sustainable Food Security for All: The Role of Policy, Global Public Goods, Property Rights, and Collective Action' in Japan Bank for International Cooperation, Development Assistance Strategies in the 21st Century: Global and Regional Issues (JBIC Research Paper No 16, July 2002) vol 1, 57.