patentability? Any disclosure of a potentially patentable idea should be made thoughtfully
and/or in consultation with an attorney or technology transfer office. In some cases, a clear
public disclosure can be purposely designed to bar patentability in order to ensure that an
invention remains in the public domain and available for everyone to use without restriction
(Boettiger and Chi-Ham, 2007).
The patenting of plant and animal genes has been particularly controversial, and critics
have argued that genes are not patentable because they exist in nature. However, the US
Patent and Trademark Office (USPTO) concluded that an isolated and purified DNA mole-
cule that has the same sequence as a naturally occurring gene is eligible for patent protection
because it does not occur in its isolated form in nature. The USPTO did, however, modify
and adopt a higher standard of “utility” in its guidelines for evaluating gene patents, requir-
ing that the applicant demonstrate that the “utility is specific, substantial, and credible”
(http://www.uspto.gov/web/offices/com/sol/notices/utilexmguide.pdf). In spite of this
specific utility requirement, a number of patent applications claim the sequences of
hundreds of genes for which the utility is only broadly defined. For example, US
Patent Application 20,070,022,495 defines the utility of several hundred claimed genes
as conferring an
“improved trait relative to a control plant” and that
“The improved trait is selected from the group consisting of larger size, larger seeds, greater
yield, darker green color, increased rate of photosynthesis, more tolerance to osmotic stress,
more drought tolerance, more heat tolerance, more salt tolerance, more cold tolerance, more
tolerance to low nitrogen, early flowering, delayed flowering, more resistance to disease,
more seed protein, and more seed oil relative to the control plant.”Time will tell how these broad patents are treated by patent offices and patent examiners and
ultimately whether such broad gene patents are enforceable.
14.3 Intellectual Property in Relation to Agricultural Research
The impact of public-sector research in agriculture has been very significant. In the United
States, this dates back to the establishment of the Land Grant College system of universities
that have led the development of improved crop varieties that were transferred to farms and
to the agricultural industry through cooperative extension services in this country.
Internationally, the system of crop research centers sponsored by the Consultative Group
on International Agricultural Research (CGIAR) has a similarly large impact in developing
new crop cultivars and agronomic practices that were delivered as a public good to support
global food production. This model has been slowly changing, and the rate of change is
now accelerating. At the core of this change is the increasing role of IP protection over agri-
cultural inventions, as well as the development of a research-intensive private sector in
agricultural biotechnology. Thus, both US and global agricultural systems are experiencing
a change from research results being developed primarily in the public sector and the result-
ing technologies delivered for free as a public good to a system that is increasingly domi-
nated by private companies who protect and treat results as a private asset. This has been
accomplished through a much more intensive use of the patent system to protect agricultural
14.3. INTELLECTUAL PROPERTY IN RELATION TO AGRICULTURAL RESEARCH 329