The InTellecTual ProPerTy and Food ProjecT This page has been left blank intentionally The Intellectual Property and Food Project From rewarding Innovation and creation to Feeding the World Edited by charles laWson and jay sanderson Griffith Law School, Australia First published 2013 by Ashgate Publishing Published 2016 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN 711 Third Avenue, New York, NY 10017, USA Routledge is an imprint of the Taylor & Francis Group, an informa business Copyright © 2013 charles lawson, jay sanderson and the contributors All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. charles lawson and jay sanderson have asserted their right under the copyright, designs and Patents Act, 1988, to be identified as the editors of this work. Notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library The Library of Congress has cataloged the printed edition as follows: The intellectual property and food project : from rewarding innovation and creation to feeding the world / By charles lawson and jay sanderson. p.cm. Includes bibliographical references and index. ISBN 978-1-409-46956-8 (hardback)—ISBN 978-1-315-55668-0 (ebook)— ISBN 978-1-317-02736-2 (epub) 1. Plants, Cultivated—Patents. 2. Biotechnology— Patents. I. Lawson, Charles, editor of compilation. II. Sanderson, Jay (Law teacher) editor of compilation. K3876.I577 2013 346.04’86—dc23 2013020863 ISBN 9781409469568 (hbk) ISBN 9781315556680 (ebk) Contents List of Tables, Figures and Boxes vii Notes on Contributors ix Acknowledgements xi Abbreviations xiii 1 The IP and Food Project 1 Jay Sanderson and Charles Lawson Part I: ObservatIOns frOm the LabOratOry 2 Implications of Advances in Molecular Genetic Technology for Food Security and Ownership 11 Robert J. Henry Part II: PubLIc research and PLant GermPLasm: InteLLectuaL PrOPerty and fOOd securIty 3 Reconceptualizing Intellectual Property to Promote Food Security 23 Brad Sherman 4 Intellectual Property Norm Setting in ex situ Plant Germplasm Access and Benefit Sharing Arrangements 39 Charles Lawson 5 Open Access Seeds and Breeds: The Role of the Commons in Protecting Farmers’ and Livestock Keepers’ Rights and Food Security 75 Brendan Tobin Part III: sOcIaL, ecOnOmIc and POLItIcaL asPects Of fOOd and InteLLectuaL PrOPerty 6 Why Didn’t an Equivalent to the US Plant Patent Act of 1930 Emerge in Britain? Historicizing the Boundaries of Un-Patentable Innovation 103 Berris Charnley vi The Intellectual Property and Food Project 7 Changing the Recipe: Food Security and Other Socio-Economic Considerations in Agricultural Biotechnology Regulation 123 Karinne Ludlow Part Iv: InteLLectuaL PrOPerty, fOOd and PractIce 8 Can Intellectual Property Help Feed the World? Intellectual Property, the PLUMPYFIELD® Network and a Sociological Imagination 145 Jay Sanderson 9 Geographical Indications and Agricultural Community Development: Is the European Model Appropriate for Developing Countries? 175 Graham Dutfield 10 Patent-Busting: The Public Patent Foundation, Gene Patents and the Seed Wars 201 Matthew Rimmer Index 251 List of Tables, Figures and Boxes Tables 8.1 PlumpyField Members 153 8.2 Parties to Nutriset’s Patents Usage Agreement 155 Figures 8.1 Plumpy’Nut 157 8.2 Plumpy’Doz 157 Boxes 9.1 PDOs and PGIs in Europe: Some (possibly anomalous) examples 181 9.2 India’s Geographical Indications legislation 185 This page has been left blank intentionally Notes on Contributors Berris Charnley is a Research Fellow with the Australian Centre for Intellectual Property in Agriculture at Griffith University. He helped establish the IPBio Network as an international collection of scholars with a shared research interest in the history of IP in the biosciences and its relevance to current policy. Berris researches the history and philosophy of science (and in particular biology, plant breeding, genetics and genomics), the history and theory of IP, and the history of food science. Graham Dutfield is the Professor of International Governance at the University of Leeds. He is also a Research Affiliate of the Intellectual Property Law and Technology Program at Osgoode Hall Law School, York University, Toronto, an Adjunct Professor at the Center for Studies of Intellectual Property Rights at Zhongnan University of Economics and Law, Wuhan, China, a member of the IPBio Network and a member of the Scientific Advisory Board of the Canadian synthetic biology project PhytoMetaSyn. Graham researches IP across several disciplines, including law, history, politics, economics and anthropology. Robert J. Henry is a Professor at the University of Queensland and the director of the Queensland Alliance for Agriculture and Food Innovation. He has been involved with the Grains Research and Development Corporation, Sugar Research and Development Corporation and Rural Industries Research and Development Corporation committees, and was a member of the Australian Plant Breeders’ Rights Advisory Committee. Robert researches improved food and energy security by applying biochemical and molecular tools to the development of improved crop varieties, analysing domesticated crops, wild relatives of crop species and potential new crop species. Charles Lawson is an Associate Professor at Griffith University and a member of the Australian Centre for Intellectual Property in Agriculture. Charles researches IP, competition, trade, access and benefit-sharing, and public administration. Karinne Ludlow is a Senior Lecturer at Monash University. Karinne recently co-authored a report for the United Nations Food and Agriculture Organisation on nanotechnology and food – Nanotechnology Applications in Food and Agriculture Sectors: Principles and Guidance for Food Safety Regulation. Karinne researches interdisciplinary problems of science and technology and the law, with particular emphasis on biotechnology and nanotechnology.