1 See Jack Ralph Kloppenburg, Jr., First the Seed: The Political Economy of Plant Biotechnology, 1492–2000, at 1 (1988). Dates vary on when humans first began to cultivate crops. The general estimates fall between ten and fifteen thousand years ago. See Sheldon Krimsky & Roger P. Wrubel, Agricultural Biotechnology and the Environment 9 (1996); H. Garrison Wilkes, Plant Genetic Resources over Ten Thousand Years: From a Handful of Seed to the Crop-Specific Mega-Gene Banks, in Seeds and Sovereignty: The Use and Control of Plant Genetic Resources 67, 68 (Jack R. Kloppenburg, Jr. ed., 1988). Wilkes writes:
The change from being wild to domesticate is characterized more accurately as a process than as an event. And the transition from being a wild plant to being a plant dependent on humans has not been uniform among useful plants. There is not an origin of cultivated plants; rather, there are origins for each crop. Some are ancient, others are recent domesticates of this century.
See id. at 67–68.
2 See Kloppenburg, supra note 1, at 1.
3 See id.
4 See id. at 1–2; David G. Scalise & Daniel Nugent, International Intellectual Property Protections for Living Matter: Biotechnology, Multinational Conventions and the Exception for Agriculture, 27 Case W. Res. J. Int’l L. 83, 83 (1995). Note that while “agriculture” encompasses both livestock animals and plants, this Note focuses on biotechnological developments in plants, e.g., fruits, vegetables, and seed crops. Any reference to “agriculture” or “agricultural biotechnology” should be read in this limited sense.
5 See Kloppenburg, supra note 1, at 2.
6 See id.
7 See Scalise & Nugent, supra note 4, at 83–84.
8 See id.
9 See Kloppenburg, supra note 1, at 10–11.
10 See generally id.
11 See id. at 11.
12 See id.
13 See id.
14 See Michael Pollan, Playing God in the Garden, N.Y. Times, Oct. 25, 1998 § 6 (magazine), at 44.
15 See Charles McManis, The Interface Between International Intellectual Property and Environmental Protection: Biodiversity and Biotechnology, 76 Wash. U. L.Q. 255, 255–56 (1998).
16 See generally id.
17 See Kloppenburg, supra note 1, at 10–11.
18 See id. at 11.
19 See id.
20 See id.
21 See Plant Patent Act, 35 U.S.C. § 161 (1988 & Supp. 1996); Plant Variety Protection Act, 7 U.S.C. § 2402 (1988 & Supp. 1996).
22See Leora Broydo, A Seedy Business, Mother Jones Online (Apr. 7, 1998) <http:// www.motherjones.com/news_wire/broydo.html>.
23 Germplasm is the genetic information encoded in the seed and the raw material used by the plant breeder. See Kloppenburg, supra note 1, at 14.
24 See id. at 9, 14.
25 See id. at 14. Of crops of economic importance, only sunflower, blueberry, cranberry, and Jerusalem artichoke originated in North America. See id. at 50.
26 See id. at 15.
27 See Kloppenburg, supra note 1, at 15.
28 See id; McManis, supra note 15, at 268.
29 See id.
30 See Cath Blackledge, Life Sciences Firms Will Make Money By Controlling the Whole Food Chain, European, May 18, 1998, at 20; RAFI Communique, Seed Industry Consolidation: Who owns Whom? (July 1998) <www.rafi.org/web/allpub-display.shtml?pfl=com-list-all.param> [hereinafter RAFI Communique].
31 See Cath Blackledge, supra note 30, at 20. The Rural Advancement Foundation International (RAFI) cites an equally large estimate from the International Seed Federation that the world market for genetically engineered seeds is expected to reach $2 billion by the year 2000 and $20 billion by 2010. See RAFI Communique, supra note 30. An article in the New York Times describes some analysts’ prediction that “[C]ontrol of genetic resources, the raw material for biotechnology, will be to the next century what oil and metal were to this one.” See Michael Pollack, U.S. Sidetracks Pact to Control Gene Splicing, N.Y. Times, Feb. 25, 1999, at A1.
32 See RAFI Communique, supra note 30. In specific seed markets corporate market share may be much higher. See RAFI Communique, The Gene Giants: Update on Consolodation in the Life Industry, (Mar. 1999) <www.rafi.org/web/allpub-display.shtml?pfl+com-list-all.param>. For example, in 1999, four companies controlled 69% of the North American seed corn market, and five vegetable seed companies controlled 75% of the global vegetable seed market. See id.
33 See Scott Kilman & Susan Warren, Dupont, Monsanto Going to Seed, Wall St. J., May 28, 1998, at C7.
34 See RAFI Communique, supra note 30. Seed industry mergers are occurring at a breakneck pace, and the largest corporations continue to reposition themselves. See id. In 1998, the top three life industry giants were Pioneer Hi-Bred International (U.S.), Monsanto/American Home Products (U.S.), and Swiss giant Novartis. See id.
35 See Kilman & Warren, supra note 33.
36 See Peter J. Goss, Guiding the Hand that Feeds: Towards Socially Optimal Appropriability in Agricultural Biotechnology Innovation, 84 Cal. L. Rev. 1395, 1398 (1996); Kilman & Warren, supra note 33.
37 See Goss, supra note 36, at 1398.
38 U.S. Const. art. I, § 8, cl. 8.
39 See F.H. Erbisch & C. Velazquez, Introduction to Intellectual Properties, in Intellectual Property Rights in Agricultural Biotechnology 3, 8 (F.H. Erbisch & K.M. Maredia eds., 1998). There are three types of patents granted in the United States: plant patents, utility patents, and design patents. See id. Plant and utility patents will be discussed in this Note. See infra notes 47–63 and accompanying text.
40 See Paul Goldstein, Copyright, Patent, Trademark and Related State Doctrines, Cases and Materials on the Law of Intellectual Property 16 (1997).
41 See id.; Scalise & Nugent, supra note 4, at 86–87.
42 See id.
43 See James Boyle, Shamans, Software, and Spleens: Law and the Construction of the Information Society xii (1996).
44 See id. The First Amendment is one of the most obvious examples of this ideal. See id.
45 See Keith Aoki, Neo-colonialism, Anticommons Property and Biopiracy in the (Not-So Brave) New World Order of International Intellectual Property Protection, 6 Ind. J. Global Legal Stud. 11, 34–35 (1998).
46 See id. at 35.
47 See id.
48 Id.
49 See id.
50 See Aoki, supra note 45, at 35.
51 See generally id.
52 35 U.S.C. § 101 (1994). Until 1980 and Diamond v. Chakrabarty, utility patents were not extended to living matter. See Scalise & Nugent, supra note 4, at 95–96.
53 See Plant Patent Act, 35 U.S.C. § 161 (1988 & Supp. 1996).
54 The PPA grants that “Whoever invents or discovers and asexually reproduces any distinct and new variety of plant, including cultivated sports, mutants, hybrids, and newly found seedlings, other than a tuber propagated plant or a plant found in an uncultivated state, may obtain a patent therefor . . . .” 35 U.S.C. § 161 (1996).
55 See 7 U.S.C. § 2402 (1988 & Supp. 1996); David Tilford, Saving the Blueprints: The International Legal Regime for Plant Resources, 30 Case W. Res. J. Int’l L. 373, 402 (1998).
56 See 7 U.S.C. § 2401(a). Plants that do not exhibit the same traits when grown out over several generations (i.e., plants that are not stable) are not eligible for protection. See 7 U.S.C. § 2402(a)(3). Thus, hybrids are excluded from protection because they do not breed true after one generation. See Goss, supra note 36, at 1407 n.70.
57 See Goss, supra note 36, at 1408–09.
58 See id. The first exception is called the “research exception” and the second the “crop exemption” exception. See id. In 1994, Congress passed amendments to the PVPA to limit the potential for abuse of both exceptions. See id. at 1409–11. For an example of judicial efforts to limit the scope of the crop exemption, see Delta & Pine Land Co. v. Peoples Gin Co., 694 F.2d 1012 (5th Cir. 1983), which found that farmers who save seed must do so individually and not through intermediaries such as farm cooperatives; and Asgrow v. Winterboer, 513 U.S. 179 (1995), which determined that a farmer could sell to other farmers no more than the amount of seed the farmer would otherwise need to plant her crop for the next year. Congress has now removed any sale provision from the crop exemption—presently farmers can only sell seed for other than reproductive purposes (food or feed but not for planting). See Goss, supra note 36, at 1414.
59 See Erbisch & Velazquez, supra note 39, at 9. Although note that because plant patents are not available for sexually reproducing plants, and utility patents are often very expensive and difficult to obtain, the PVPA is often still an attractive option. See Goss, supra note 36, at 1414.
60 See Erbisch & Velazquez, supra note 39, at 9. The PVPA does not provide adequate protection for a breeder who has inserted a new gene into a plant variety because it allows another breeder to purchase the genetically altered, and PVPA protected, plant and breed the new gene into a new variety. See John H. Barton, Acquiring Protection for Improved Germplasm and Inbred Lines, in Intellectual Property Rights in Agricultural Biotechnology 19, 22 (F.H. Erbisch & K.M. Maredia eds., 1998).
61 See Scalise & Nugent, supra note 4, at 95. Scalise and Nugent write:
Despite anomalous patents, such as that issued to Louis Pasteur in 1873 for his purified culture of yeast, the courts invariably rejected patents that pertained to living matter. The most effective weapon was the products of nature doctrine, as discussed in the American Fruit Growers case. When that doctrine failed, the PTO and private plaintiffs relied upon the plant protection acts of 1930 and 1970 as evidence that Congress intended that only living organisms qualifying under one of the acts were to be afforded intellectual property rights.
See id.
62 See Diamond v. Chakrabarty, 447 U.S. 303 (1980).
63 See id. at 305.
64 See id. at 310. The court also examined the committee reports of the 1952 recodification of the patent laws which, in the court’s view, made clear Congress’s intent that the statute include “anything under the sun that is made by man.” Id. at 309.
65 See Scalise & Nugent, supra note 4, at 98.
66 See Ex parte Hibberd, 227 U.S.P.Q. 443, 444 (1985).
67 See id. at 444–45.
68 See Goss, supra note 36, at 1405.
69 See Pollan, supra note 14. One estimate is that about half of U.S. cotton fields, 40% of soybean fields, and 20% of corn fields were genetically altered in 1998. See Kilman & Warren, supra note 33, at C7.
70 See Pollan, supra note 14.
71 See id.
72 See id.; Michael Specter, Europe, Bucking Trend in U.S., Blocks Genetically Altered Food, N.Y. Times, July 20, 1998, at A1.
73 See Goss, supra note 36, at 1401; Pollan, supra note 14.
74 Goss, supra note 36, at 1401–02; See Monsanto, (visited Jan. 19, 2000) <http://www. monsanto.com/ag/_asp/monsanto.asp>.
75 See Christopher Hallowell et al., Will the World Go Hungry? The Population Will Hit 10 Billion, But Farmers Can Meet the Challenge with Modern Biotechnology and a Little Bit of Ancient Wisdom, Time Int’l, Nov. 1, 1997.
76 See id. The world population growth rate has also decreased from a high of 2.2% in 1963 to 1.4% today. See id.
77 See id.
78 See Jimmy Carter, Who’s Afraid of Genetic Engineering?, N.Y. Times, Aug. 26, 1998, at A21.
79 See Goss, supra note 36, at 1400.
80 See Pollan, supra note 14.
81 See Aoki, supra note 45, at 47.
82 See Pollan, supra note 14.
83 See Goss, supra note 36, at 1402–03.
84 See id. at 1402. Kloppenburg writes of “the need to address the global erosion of genetic diversity, because that which is being lost is the raw material out of which responses to future pest and pathogen challenges must be fashioned and with which the broadening of the crop genetic base can be accomplished.” Kloppenburg, supra note 1, at 163.
85 See Goss, supra note 36, at 1402. Note, however, that although biotechnology cannot create genetic traits after the loss of a species, it can help prevent extinction by numerically increasing failing species or inserting greater disease resistance into endangered plant species. See id. at 1402–03.
86 See id. at 1403.
87 See id. Genetic uniformity exacerbated the Irish potato famine and the 1970 corn leaf blight in the United States. See id.
88 See Scalise & Nugent, supra note 4, at 84–85.
89 See Goss, supra note 36, at 1399.
90 See United Nations Convention on Biological Diversity, June 5, 1992, S. Treaty Doc. No. 103–20 (1993) [hereinafter Biodiversity Treaty]; General Agreement on Tariffs and Trade—Multilateral Trade Negotiations (The Uruguay Round): Agreement on Trade-Related Aspects of Intellectual Property Rights, Including Trade in Counterfeit Goods, Dec. 15, 1993, 33 I.L.M. 81 (1994) [hereinafter TRIPs Agreement].
91 See Biodiversity Treaty, supra note 90; TRIPs Agreement, supra note 90.
92 See Biodiversity Treaty, supra note 90; TRIPs Agreement, supra note 90.
93 See McManis, supra note 15, at 265; Scalise & Nugent, supra note 4, at 105.
94 See Scalise & Nugent, supra note 4, at 105.
95 See generally McManis, supra note 15, at 255.
96 See id. at 268–69.
97 See id. at 269.
98 See id. at 268–69.
99 See id.
100 See Biodiversity Treaty, supra note 90; TRIPs Agreement, supra note 90.
101 See Biodiversity Treaty, supra note 90; TRIPs Agreement, supra note 90.
102 See Biodiversity Treaty, supra note 90.
103 See id. art. 1.
104 See McManis, supra note 15, at 256; Tilford, supra note 55, at 418. President Bush, in a speech at the Rio Convention, voiced U.S. concerns, saying, “[The Convention] threatens to retard biotechnology and undermine the protection of ideas.” Fiona McConnell, The Biodiversity Convention A Negotiating History 111 (1996).
105 See Scalise & Nugent, supra note 4, at 110.
106 See Biodiversity Treaty, supra note 90, art. 16; Tilford, supra note 55, at 417.
107 See Tilford, supra note 55, at 419.
108 Biodiversity Treaty, supra note 90, art. 16, ¶ 2.
109 See Biodiversity Treaty, supra note 90, art. 16, ¶ 5; Tilford, supra note 55, at 419.
110 Biodiversity Treaty, art. 16, ¶ 5.
111 See Tilford, supra note 55, at 418–20.
112 See id. at 419.
113 See id.
114 See Scalise & Nugent, supra note 4, at 112–13. The Senate must consent for U.S. ratification of the treaty. See id. at 113.
115 See id. at 112–13. The International Community has been unhappy with the letter of interpretation criticizing the U.S. for attempting to create the terms it was unable to obtain in the treaty negotiations. See id. at 113.
116 See id. For instance, an outgrowth of the Biodiversity Treaty, the Biosafety Protocol, collapsed in disarray when the United States—influenced once again by the biotech industry—and five other large agricultural exporters rejected a biosafety proposal that had the support of approximately 130 other nations. See Pollack, supra note 31, at A1.
117 Darrell A. Posey & Graham Dutfield, Beyond Intellectual Property: Toward Traditional Resource Rights for Indigenous Peoples and Local Communities 103–04 (1996). See particularly Article 8(j) of the Biodiversity Treaty.
118 See id. at 104; see generally Biodiversity Treaty, supra note 90, arts. 8(j), 8(k).
119 See Scalise & Nugent, supra note 4, at 114.
120 See id. GATT has sponsored eight rounds of multilateral negotiations relating to tariffs and trade. See id.
121 See id. Spurred on by a desire to protect against patent violations by developing countries, the United States. was originally the main sponsor of TRIPs. See id.
122 See McManis, supra note 15, at 266.
123 See Ruth L. Gana, Prospects for Developing Countries under the TRIPs Agreement, 29 Vand. J. Transnat’l L. 735, 753 (1996); McManis, supra note 15, at 266.
124 See Tilford, supra note 55, at 408.
125 See id.
126 See id. at 408–09. From the United States’ point of view this means signatories may decide to offer separate and perhaps weaker plant variety protection rather than the full patent rights advocated by the U.S. See id. at 408. In India, reaction to this provision was so vehement that in October 1993 half a million farmers rallied together to protest the patenting of agricultural products. See McManis, supra note 15, at 257, 267. The head of the association that organized the protest, M. D. Nanjundaswamy, said the farmers were demonstrating “for collective, not individual control over seeds and plants.” See id.
127 See McManis, supra note 15, at 255.
128 See infra notes 100–26 and accompanying text.
129 As Darrell Posey writes:
[D]oes anyone have a better mechanism than IPR [intellectual property rights] to provoke a new, more socially just and economically sound paradigm of “wealth,” to strengthen positions of local communities, or to recognize the intellectual contribution of indigenous peoples to human patrimony? Alternative strategies are welcome and needed. But the deadly serious race to conserve biological and cultural diversity of the Planet is on: IPR seems to be one of the most interesting intellectual, legal, economic and political tools available to us at the present.
Darrell A. Posey, International Agreements and Intellectual Property Right Protection for Indigenous Peoples, in Intellectual Property Rights for Indigenous Peoples: A Source Book 225, 226 (Tom Greaves ed., 1994).
130 See Gana, supra note 123, at 745.
131 See Diamond v. Chakarbarty, 447 U.S. 303 (1980).
132 See Gana, supra note 123, at 752–53.
133 See id. at 753.
134 See Biodiversity Treaty, supra note 90; TRIPs Agreement, supra note 90.
135 See Aoki, supra note 45, at 46.
136 See Vandana Shiva, BioPiracy: The Plunder of Nature and Knowledge (1997).
137 See Boyle, supra note 43, at 141; Shiva, supra note 136.
138 See Posey & Dutfield, supra note 117, at 4; infra notes 102–18 and accompanying text. The interests of the developing countries are not neutral either. As Posey argues, “The Earth Summit [Conference on the Biodiversity Treaty] was more of a political game to re-divide the world’s resources between new global players than a gathering to address the issues of poverty and environmental degradation. Environmentally rich countries want to be given as much power as technologically rich countries.” See Posey, supra note 129, at 226.
139 See Boyle, supra note 43, at 141.
140 See id.
141 See id. at 141–42.
142 See Shiva, supra note 136, at 5.
143 See Aoki, supra note 45, at 49.
144 See id.
145 See id. at 47–50.
146 See Aoki, supra note 45, at 50; Shiva, supra note 136, at 2–5.
147 See Shiva, supra note 136, at 2–5.
148 See id.
149 See id.
150 See Jeffrey Kluger et al., The Suicide Seeds Terminator genes could mean big biotech bucks—but big trouble too, as a grass-roots protest breaks out on the Net, Time, Feb. 1, 1999.
151 Id.
152 See id.
153 Id.
154 See id.; Tracey Henderson, Technology-Protected Seed: A Development Worker’s Perspective, ECHO Development Notes, Dec. 1998, Issue 62, at 5–6.
155 See Goss, supra note 36, at 1435.
156 One estimate has been that plant breeders earn most of the profit from a new variety in its first five years. See id. at 1434.
157 Tilford writes:
Seed companies cannot market diversity. To protect investment, the seed industry must have intellectual property protections. To receive protection under the current intellectual property system, seed companies must develop uniform products, a task made easier through biotechnology. To financially gain from these uniform products, the seed industry must then pursue the obvious strategy of mass production of products for a public willing to buy them. . . . Perversely, therefore, the agricultural industry must follow the typical formula for market success, it must do so by eroding the very pedestal upon which its success is built.
See Tilford, supra note 55, at 444.