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Commodification of the climate. Patenting and climate change

Commodification of the climate. Patenting and climate change. Professor Michael Blakeney University of Western Australia michael.blakeney@uwa.edu.au. Outline. Agricultural impacts of climate change Innovative responses supported by the international IP system ‘Climate change’ patents

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Commodification of the climate. Patenting and climate change

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  1. Commodification of the climate. Patenting and climate change Professor Michael Blakeney University of Western Australia michael.blakeney@uwa.edu.au

  2. Outline • Agricultural impacts of climate change • Innovative responses supported by the international IP system • ‘Climate change’ patents • Impact of broad scope of patents on future innovations and food security • GM patenting and food security • Compulsory licensing?

  3. Climate Change Impacts on Grain Yields Global production Percentage change in average crop yields. Effects of CO2 are taken into account. Crops modelled are: wheat, maize and rice. Parry et al. (2005)

  4. climate change = agricultural stresses increase in salinity and aridity Increased development of weeds, insect pests and crop diseases Incentivises the development of crops to withstand these stresses.

  5. The Intellectual Property (IP) System Encourages innovation by: Conferring exclusive rights in relation to inventions and new plant varieties thereby rewarding R&D and protecting investments

  6. International IP System WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) Prescribes minimum IP standards for the 157 WTO member countries Eg requirement of plant variety rights protection (Article 27.3(b)) and standards for patent protection (Article 27.1:novelty, inventive step, industrial application, no discrimination between technologies)

  7. Impact of bilateral agreements on IP standardseg Central America-United States Free Trade Agreement (CAFTA-DR) 2004 • Signed between the US, five Central American countries (Costa Rica, El Salvador, Guatemala, Honduras, and Nicaragua) and the Dominican Republic.

  8. US-CAFTA-DR FTAArticle 15.9: Patents 1. Each Party shall make patents available for any invention, whether a product or a process, in all fields of technology, provided that the invention is new, involves an inventive step, and is capable of industrial application. For purposes of this Article, a Party may treat the terms “inventive step” and “capable of industrial application” as being synonymous with the terms “non-obvious” and “useful,” respectively.

  9. Article 15.9.2: Patents 2. ... any Party that does not provide patent protection for plants by the date of entry into force of this Agreement shall undertake all reasonable efforts to make such patent protection available.

  10. Article 15.1 5. (a) Each Party shall ratify or accede to the International Convention for the Protection of New Varieties of Plants (1991) (UPOV Convention 1991).1 Nicaragua shall do so by January 1, 2010. Costa Rica shall do so by June 1, 2007. All other Parties shall do so by January 1, 2006. (b) Subparagraph (a) shall not apply to any Party that provides effective patent protection for plants by the date of entry into force of this Agreement. Such Parties shall make all reasonable efforts to ratify or accede to the UPOV Convention 1991.

  11. Climate change patenting Somvanshi (2009) identified 30 patents relating to drought tolerant genes. V. S. Somvanshi ‘Patenting Drought Tolerance in Organisms’(2009) 3 Recent Patents on DNA & Gene Sequences , 16-25, accessed at http://www.benthamscience.com/dnag/samples/dnag3-1/0003DNAG.pdf, at Table 2.

  12. Somvanshi Study These included: (i) patents related to Proline biosynthesis; (ii) patented dehydration responsive element binding factors (DREB) and C-repeat sequences binding factors (CBF); (iii) patents related to Protein Kinases; (iv) various patents awarded for transcription factors involved in improving drought stress tolerance in plants, and (v) patents related to miscellaneous drought tolerance genes.

  13. ETC Group, ‘Patenting the “Climate Genes”…and Capturing the Climate Agenda’ Communiqué, no.99, May/June 2008, Available at http://www.etcgroup.org/upload/publication/687/03/etcgroupclimategenesfinal05_08.pdf identified 55 patent “families” (a total of 532 patent documents) that were applied for and/or granted to a number of biotechnology companies on so-called “climate-ready” genes at patent offices around the world.

  14. C. Notenburg, ‘Patenting the “Climate Genes...and Capturing the Climate Agenda” : A Communiqué by the ETC Group’ Harvest Choice Commentary, August 7, 2009, accessed at http://www.harvestchoice.org/files/Nottenburg%202008%20HarvestChoice%20--Patenting%20the%20Climate%20Genes~2S.pdf pointed out that the number of patent families is the better indicator of the incidence of the patenting of stress-tolerant genes, than patent filings (particularly because a number of filings are duplicated in different countries). The ETC report is critical of over-broad patent claims, but Dr Nottenburg considers this to be a matter dictated by the “eye of the beholder” and concludes that “visions of gene-grabbing and holding farmers hostage are unwarranted”.

  15. ETC Group, ‘Gene Giants Stockpile Patents on “Climate-ready” Crops in Bid to become “Biomassters” Patent Grab Threatens Biodiversity, Food Sovereignty’ Issue no. 106, October 2010, Available at http://www.etcgroup.org/upload/publication/pdf_file/FINAL_climate-readyComm_106_2010.pdf update of the 2008 study “examined patents containing claims concerned with abiotic stress tolerance (ie traits related to environmental stress, such as drought, salinity, heat, cold, chilling, freezing, nutrient levels, high light intensity, ozone and anaerobic stresses”. It noted “a dramatic upsurge in the number of patents published (both applications and issued patents) related to ‘climate-ready’ genetically engineered crops from June 30, 2008 to June 30, 2010, identifying 262 patent families and 1663 patent documents.

  16. The 2010 report contrasts the ownership of 9% patent families by public sector institutions (9% of the total) with the private sector which holds 91% of the total. The 2010 report points out that “just three companies – DuPont, BASF, Monsanto – account for two-thirds (173 or 66%) of the total.”This level of market concentration gives cause for concern for those who espouse the positive role of competition.

  17. Eg US Patent 7,834,146, November 16, 2010 Recombinant polypeptides associated with plants Abstract Recombinant polynucleotides and recombinant polypeptides useful for improvement of plants are provided. The disclosed recombinant polynucleotides and recombinant polypeptides find use in production of transgenic plants to produce plants having improved properties.

  18. Inventors: Kovalic; David K. (Clayton, MO), Zhou; Yihua (Ballwin, MO), Cao; Yongwei (Chesterfield, MO), Andersen; Scott E. (St. Louis, MO), Edgerton; Michael D. (St. Louis, MO), Liu; Jingdong (Chesterfield, MO) Assignee: Monsanto Technology LLC (St. Louis, MO) Appl. No.: 10/767,701 Filed: January 29, 2004

  19. Claims • A substantially purified polypeptide comprising an amino acid sequence having at least about 90% sequence identity with the amino acid sequence of SEQ ID NO: 44,293. • The substantially purified polypeptide of claim 1, wherein said amino acid sequence is 100% identical with the amino acid sequence of SEQ ID NO: 44,293. • The substantially purified polypeptide of claim 1, wherein said amino acid sequence has at least about 95% sequence identity with the amino acid sequence of SEQ ID NO: 44,293. • A transformed plant comprising a recombinant nucleic acid sequence encoding a polypeptide having an amino acid sequence, wherein said amino acid sequence has at least about 90% sequence identity with the amino acid sequence of SEQ ID NO: 44,293. • The transformed plant of claim 4, wherein said plant is a Sorghum plant

  20. BACKGROUND OF THE INVENTION The ability to develop transgenic plants with improved traits depends in part on the identification of polynucleotides that are useful for the production of transformed plants having desirable qualities. In this regard, the discovery of polynucleotide sequences of genes, and the polypeptides encoded by such genes, is needed. Molecules comprising such polynucleotides may be used, for example, in recombinant DNA constructs useful for imparting unique genetic properties into transgenic plants.

  21. DETAILED DESCRIPTION OF THE INVENTION • The present invention provides recombinant polynucleotides and recombinant polypeptides from Sorghum. The recombinant polynucleotides and recombinant polypeptides of the present invention find a number of uses, for example in recombinant DNA constructs, in physical arrays of molecules, for use as plant breeding markers, and for use in computer based storage and analysis systems.

  22. DETAILED DESCRIPTION OF THE INVENTION The recombinant polynucleotides of the present invention also find use in generation of transgenic plants to provide for increased or decreased expression of the polypeptides encoded by the recombinant polynucleotides provided herein. As used herein a "transgenic" organism is one whose genome has been altered by the incorporation of foreign genetic material or additional copies of native genetic material, e.g. by transformation or recombination. As a result of such biotechnological applications, plants, particularly crop plants, having improved properties are obtained. Crop plants of interest in the present invention include, but are not limited to soy, cotton, canola, maize, wheat, sunflower, sorghum, alfalfa, barley, millet, rice, tobacco, fruit and vegetable crops, and turf grass.

  23. DETAILED DESCRIPTION OF THE INVENTION In one embodiment the disclosed recombinant polynucleotides provide plants having improved yield resulting from improved utilization of key biochemical compounds, such as nitrogen, phosphorous and carbohydrate, or resulting from improved responses to environmental stresses, such as cold, heat, drought, salt, and attack by pests or pathogens. Recombinant polynucleotides of the present invention may be used to provide plants having improved growth and development, and ultimately increased yield, as the result of modified expression of plant growth regulators or modification of cell cycle or photosynthesis pathways. Other traits of interest that may be modified in plants using polynucleotides of the present invention include flavonoid content, seed oil and protein quantity and quality, herbicide tolerance, and rate of homologous recombination.

  24. Concerns about climate change patents • Market concentration (globalised patent system with few corporations holding patents over useful DNA) • Enclosure of the research commons (ditto) • ‘Biopiracy’ improper acquisition of source biological materials • Magnification of concerns about GM technologies (health and environmental impacts)

  25. WA farmer sues over GM contamination AAP, July 28, 2011 A WA farmer is suing a neighbour for negligence after genetically modified canola seed blew onto his land, causing the loss of his organic crop certification. Steve Marsh, from Kojonup in WA's Great Southern region, has instructed his lawyers to lodge a writ in the WA Supreme Court in Perth in coming days. The writ alleges his neighbour, Michael Baxter, was negligent in allowing GM canola to blow onto the Marsh property before harvest, contaminating his land and causing the loss of its organic status.About 70 per cent of Mr Marsh's farm is now unusable for organic farming.Mr Marsh said on Thursday he had engaged law firm Slater & Gordon and the fund-raising organisation The Safe Food Foundation to take up his fight and recover damages for his financial losses.

  26. Plant breeding and patenting • Case studies • Wrinkled tomatoes with reduced water content. • Brassicaceae family (Broccoli) with elevated levels of anticarcinogenic glucosinolates

  27. Compulsory Licensing of climate change patents?TRIPS Art 31 • allows for patent ‘use without authorisation’, in effect a compulsory licence granted by the competent national authority to allow it or a 3rd party to manufacture a patented product without authorisation of right holder. • a reasonable period of time is allowed to negotiate a licence with the right holder on the basis of reasonable commercial terms, (can be waived in the event of a national emergency or circumstances of extreme urgency)

  28. Compulsory licensing of climate change patents? • Food security crisis + climate change stresses = situation of “national emergency or other circumstances of extreme urgency”? • Note also Article 8.1 of TRIPS Agreement “Members may, in formulating or amending their laws and regulations, adopt measures necessary to protect public health and nutrition, and to promote the public interest in sectors of vital importance to their socio-economic and technological development, provided that such measures are consistent with the provisions of this Agreement.”

  29. References M. Blakeney, Intellectual Property Rights and Food Security , Wallingford, CABI, 2009ISBN: 9781845935603

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