Public germplasm development at a new crossroads: biotechnology and intellectual property

Historically, federal and state monies have been used to produce new cultivars of many crop species through classical breeding techniques. The public-sector varieties that arose from these efforts were moved easily to commercial fields, often with no practical need or thought for legal protection. With the advent of more costly genetic practices used to create new varieties, including biotechnology, this paradigm is shifting. This is because, although the potential payoff for these technologies is substantial, up-front development costs are high. For companies and organizations to recoup these high costs, intellectual property protection for key elements and technologies is sought well before products enter the field. This early protection strategy has led to situations in which the requisite intellectual property rights needed to move products to the marketplace are not available to those who developed the new product. To be able to market new products, companies have made acquisitions and entered into consolidations to gain "freedom to operate" in practicing the new inventions. Often, control over protected technologies, genes, regulatory sequences, and germplasm is critical to success during the bargaining phases of the acquisition or merger. This trend toward trading key elements and technologies has practical implications for public-sector efforts to produce improved germplasm. Is the oft-used practice of not protecting publically developed varieties in the best interests of the farmer, the researcher, or the taxpayer? Companies that have the required freedom to operate in certain areas could obtain unprotected cultivars, developed with public money, make needed licensing agreements with other private entities holding pivotal "pieces," introduce new value-added genes, and then sell the improved germplasm at a premium back to the original developers of the varieties. If, on the other hand, the publically developed cultivars were protected through patents or plant variety protection, the scenario could be different. In this case, the company wanting to use a developed variety as the basis for a new cultivar would be obligated to negotiate with the original developers of the germplasm. This might necessitate that the company wishing to develop the new cultivar work more closely with the developers of existing and future germplasm. Concomitantly, the developers of the germplasm would have to be vigilant about protecting it and growers would have to be encouraged to use the protected germplasm over unprotected varieties. Without having legal control over key technologies and genes and/or germplasm that can be used as "bargaining chips" with pivotal industrial players, the commercial sector will either not "play the game" or will play the game with little input from the original germplasm developers. Public-sector agriculturalists must take an active role in investing in the development and protection of key elements of the new cultivars if they are to continue to participate in future germplasm development using biotechnology.