The U.S. Patent System and Developing Country Access to Biotechnology: Does the Balance Need Adjusting?

Many agricultural and food security experts believe that biotechnology has potential to assist developing country farmers in meeting current and future food needs. Most of the tools of biotechnology have been developed, however, by companies, governments, and universities in industrialized nations; are the subject of U.S. patents; and have so far been applied commercially to address the needs of large-scale growers in the United States and other developed countries. For commercial and other reasons, applications of biotechnology that might benefit developing country farmers are unlikely in the foreseeable future to be developed and disseminated through commercial channels. At the same time, noncommercial, public sector researchers report that their access to tools of biotechnology for creating developing country applications is impeded by the array of existing patents. After reviewing the basis for these observations, this paper outlines the utilitarian theory and objectives of the U.S. patent system, how the system has been applied to agricultural biotechnology, the "patent thicket" that has resulted, and the general pro-patent orientation of the U.S. Patent and Trademark Office. The paper then describes how the U.S. patent system affects developing country access to biotechnology, based in part on an informal survey the authors conducted among experts and stakeholders in this field, and outlines a normative and analytical framework for evaluating possible changes in patent policy that might improve developing country access without undercutting the patent system's incentives for invention. The central argument is that developing country food security is a legitimate interest to consider when evaluating the operation of the U.S. patent system and possible alternatives to current patent policy. The paper then briefly describes six specific policy alternatives, all addressing access to patented technology rather than the rules governing patenting. This paper serves as the basis for a fall 2002 workshop to be held by Resources for the Future (RFF), at which the policy alternatives and the framework for evaluating them will be explored in more detail and refined by a small group of invited experts and stakeholders. The authors invite comment on the paper, which should be addressed to Dr. Jerry Cayford.