14.4 Development of an “Anticommons” in Agricultural Biotechnology
The proliferation of patents in biotechnology led to the development of a metaphor to
explain why people overuse or under use resources. The “tragedy of the commons” was
a term coined by Garrett Hardin to explain why people overused shared resources, such
as common pastures, because they had no incentive to conserve or extend the life of the
resource (Hardin 1968). By analogy, Heller and Eisenberg (1998) described the “tragedy
of the anticommons,” which, as the result of a proliferation and fragmentation of IP own-
ership across multiple owners, prevents any single institution or company from assembling
all of the necessary rights to produce a product, resulting in the underuse (or nonuse) of
resources. Interestingly, whereas patents and IP generally are intended to encourage invest-
ment in research and development, the development of an anti-commons has the opposite
effect of blocking innovation. Although this concept of the anticommons was initially
described in relation to biomedical research, it also has direct relevance to agricultural
biotechnology.
A prominent example of the complexity resulting from fragmented technology
ownership and the potential for anticommons to arise was exemplified in the development
ofb-carotene-enriched rice by public-sector researchers who used at least 40 patented
or proprietary methods and materials belonging to a dozen or more different owners
in the gene transfer process (Kryder et al. 2000). Some examples of the types of
patented technologies that are required for developing a genetically engineered crop are
examined below.
14.4.1 Transformation Methods
The development of transgenic varieties typically relies on eitherAgrobacterium-mediated
or particle-bombardment-mediated gene transfer methods (Herrera-Estrella et al. 1983;
Klein et al. 1987) (see also Chapter 10). Fundamental methods related to both processes
of gene transfer into plant cells were invented in the public sector (Barton et al. 2000;
Sanford et al. 1991), but key patents forAgrobacterium-mediated transformation were
licensed exclusively to Ciba–Geigy (now Syngenta), and the particle bombardment tech-
nology was licensed exclusively to DuPont for most fields of use. In addition, both
private- and public-sector R&D organizations have patented a number of fundamental
transformation methods, as well as improvements including vectors, species-specific pro-
tocols, and novel strategies to remove selectable markers and other “foreign” DNA from
the plant to be commercialized (Hoekema et al. 1992; Hamilton 1998; Yoder and Lassner
1998; Pray and Naseem 2005; Fraley et al. 1991; Rogers and Fraley 2001). As a result of
a variety of transactions, fundamental methods of gene transfer to plant cells were
invented by either private-sector companies or by the public sector but then licensed
exclusively to private companies and represent a key technology area where patents
have the potential to block new innovations. Even though these fundamental technologies
were invented in the 1980s, a key patent coveringAgrobacterium-mediated gene transfer
has not yet issued in the United States and will have a long life (17 years) when it is ulti-
mately awarded. Some of the key patents covering particle bombardment have already
expired and others will expire soon, so this technology may be more widely accessible
in the near future.
14.4. DEVELOPMENT OF AN “ANTICOMMONS” IN AGRICULTURAL BIOTECHNOLOGY 331