Ch. 10— Maintaining Biological Diversity Internationally • 261 



Box 10-A.— Patent Law And Biological Diversity 



Patent law essentially entitles inventors to profit from their inventions for a specified period in 

 return for disclosing the secrets of the invention in the public domain, presumably to allow others 

 to build on it. Although the patent system has engendered much controversy since it was formalized, 

 legislation enabling the patenting of living organisms has become one of its most controversial aspects 

 (8,81). 



The U.S. Congress passed the Plant Patent Act of 1930 covering asexually propagated plant species.; 

 Coverage was extended to sexually propagated species with the 1970 Plant Variety Protection Act! 

 (PVPA). Witli the Supreme Court decision in Diamond v. Chakrabarty in 1980, microbes became patent- 

 able products under the basic patent act (Section 101). A recent decision by the Board of Patent Ap- 

 peals of the U.S. Patent and Trademark Office has now extended patentability under Section 101| 

 of the Patent Act to included plant material, a reversal of an earlier decision (4). 



European countries have a similar system of plant varietal protection, commonly referred to as 

 plant breeders' rights (PBR). In addition to providing patent protection, however, the European sys- 

 tem establishes a system of seed control using common catalog requirements to establish legitimate 

 cultivars that can be grown legally (5,61). The European control system is cited as having greater 

 detrimental implications for biological diversity, by increasing uniformity and reducing crop genetic 

 variability, than the basic legislative protection that exists in the United States (9). 



Since the emergence of PB R, concerns have been expressed that the proprietary controls it provides 

 may create undesirable trends in the agricultural economy, including several of consequence to bio- 

 logical diversity. Specifically, concerns exist that such legislation is contributing to a consolidation 

 in the seed industry, a reduction of sharing of germplasm and information among researchers, and 

 the loss of genetic diversity. I 



A review of studies on these linkages (12,49,50,56) reveals different interpretations of their magni- 

 tudes, with most analysts agreeing that a strong link is not apparent or at least is difficult to deter- 

 mine. Most pronounced is the degree of consolidation in the seed industry, but separating the specific 

 impact of PBR from other factors is difficult. Studies do, however, reveal that plant patents tend to 

 be concentrated among larger companies and for certain types of crops. Some of these companies 

 have petrochemical interests, which has raised concerns that their research will be directed by efforts 

 to promote agrochemical sales (e.g., emphasizing development of pesticide-tolerant or fertiUzer- 

 dependent plant varieties). With regard to the other concerns (reduced exchange of germplasm and 

 research information, or loss of genetic diversity), evaluation is hampered by a lack of objective meas- 

 ures. The conclusion is that careful monitoring in each of these areas seems warranted (8,9). 



Perhaps more important is the finding that plant breeding by public agencies plays a critical role 

 in countering the potential negative consequences of the patent system by contributing to competi- 

 tion in the seed industry, to the flow of information and germplasm, and to crop diversity (12). This 

 finding suggests that continued support of national and international (e.g.. International Agricultural 

 Research Centers) plant breeding programs is important for maintaining and enhancing genetic diver- 

 sity. Their contributions should be considered in the context of concerns that interest in biotechnol- 

 ogy has detracted from emphasis on traditional breeding and cultivar development (9). 



encourage developing countries to adopt plant 

 breeders' rights laws and become members of 

 the union (56). The trade-offs for a developing 

 country enacting a plant patent system, how- 

 ever, are different from those for industrial 

 countries (5). The arguments for adoption are 

 that it would encourage private breeders to de- 



velop varieties suited to conditions in each 

 country and that private firms would be less 

 reluctant to export seeds to countries having 

 such legislation (2,5). Without adopting PBR, 

 however, a country would still be able to take 

 advantage of publicly developed varieties, which 

 constitute the most important source of im- 



