The patent system grants monopoly rights to patent owners so that they can exclude others from practising patented technologies for a period of time. The quid pro quo is that society is afforded free access to those inventions upon the expiry of the patent.
Large international companies have scrambled to gain market monopoly returns by assembling large patent portfolios. These portfolios not only include genetic technologies per se, but also so-called 'enabling' technologies such as transformation methods, selectable markers, promoters and so on. In this area, 71% of the IP related to these technologies is held by the private sector. Monsanto and DuPont together hold 27% of the agricultural biotechnology patents (Graff et al., 2003). These large and complex IP portfolios, and the use of overlapping groups of patents, or patent 'thickets', have been developed as a 'barrier to entry' for competitors. The monopoly positions have not only been built by developing IP within these companies, but also by the strategic acquisition of smaller companies with small, but valuable, IP portfolios.
While this strategy appears to have delivered above-average financial returns for those companies, it may have had a negative effect on the ability of publicly funded scientists to conduct research using the latest 'state of the art' (Fig. 12.4). Some large companies have been hesitant to provide licences to their commercial know-how on the basis that such licences may erode their above average returns.
It has now become necessary for research organizations to conduct extensive 'freedom to operate' searches and then if possible to obtain the necessary licences so that they do not infringe the patent rights of others. Table 12.5 shows the IP rights attached to various elements of the famous 'Golden Rice™' product.
followed very limited experimental use exemptions in the USA and more generous exemptions in Europe. Such exemptions vary widely in scope and there is little harmonization across jurisdictions.
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