Beyond adoption: The role of Intellectual Property rights in emerging Australian Agricultural Biotechnology and GM Crops

With the recent launch of The Official Australian Reference Guide to Agricultural Biotechnology and GM Crops, the Agricultural Biotechnology Council of Australia (the ABCA) has provided extensive new information in an attempt to encourage access and adoption of GM crops and other agricultural biotechnology[1]. In adopting these technologies many Australian farms and farmers, as well as larger agri-businesses, will develop new processes, new strains and new business methods[2]. Throughout adoption, the protection and exploitation of Intellectual Property will become a necessity if organisations and the Australian economy are to make the most of the development. This article explores where Intellectual Property will fit into the future of Australian farming and the protection options that currently exist.

The Report – The opportunity in adoption

According to the report, in 2014, a record 18 million farmers from 28 different countries planted GM crops across 181.5 million hectares. “Biotech crops” are the fastest adopted crop technology in recent history. While agricultural biotechnology is seen as a crucial component in feeding the growing world population and reducing the pressure on natural resources, the topic still generates substantial public debate in Australia. Former Deputy Prime Minister John Anderson has said, ‘Australia is falling behind in the rapid world growth of more productive biotech crops, such as drought-tolerant and pest resistant strains. “Food versus fuel” fights over the diversion of crops to biofuels threaten to hit Australia unless this country dramatically upgrades crop development’[3].

The ABCA’s vision is for Australian farmers to adopt this new technology to improve food security and establish a competitive and sustainable farming[4]. The Guide provides information on coexistence in farming and the management strategies and systems for the maintenance of both GM and non-GM crops[1]. Matthew Cossey, Chief Executive Officer of CropLife Australia, says, ‘Australian farmers recognise the enormous agronomic, economic and environmental benefits that come with the use of agricultural biotechnology innovations. The repeal of state GM moratoria will allow Australian farmers to equally compete in what is an aggressively competitive global market’[5].

According to the CSIRO, for those adopting and utilising new agricultural biotechnology in Australia, unique opportunities exist for new strains and new technologies to be developed<[6]. These innovations will be critical to the future of Australia’s food production and global competitiveness and intellectual property protection will protect the commercial rewards for those that innovate, provide additional potential revenue streams in an often low margin sector, and provide assets that can be used to secure external investment[7].

The options for protecting and commercializing new innovations in this sector include Patents and Plant Breeder Rights (PBR) and are applicable to the strategic situations of organisations of all types and sizes within the sector.

Patents – Protecting a GM plant, or the methods used to create or exploit it

A Patent confers to its owner exclusive, legally enforceable rights to sell, make, use, offer to sell or import an innovation within an allocated country. Once secured it can be used to prevent others from exploiting the invention; or a patent can be licensed or sold to generate income and allow the invention to be used in other contexts. Plant material that may be patented includes GM or Non-GM plants, plant genetic machinery, reproductive materials, methods or new inventions used during production and products or progeny produced by the plant. The discovery of biological material, such as a new plant variety, is not patentable. For a patent to be granted there must be some technical human intervention, such as a genetic modification, which distinguishes it from a mere discovery.

In a report titled, The Importance of Intellectual Property Rights in the International Spread of Private Sector Agricultural Biotechnology, it was established that most of the applied agricultural biotech research in the private sector is conducted by larger organisations[8]. For large biotechnology corporations and institutions, a strong Intellectual Property system is essential in protecting investment in research and development for GM crops since the resulting products can be replicated through propagation[9]. Patents not only help protect inventions from being imitated, but they create the possibility for significant return on investment through licensing the resultant rights. By licensing patent rights, research institutions can generate additional income and aid in fostering the dissemination, integration, and adoption of this technology in Australia[9].

However, beyond the originators of new GM crops, other adopters of the technology in Australia could benefit from patent protection. As Australian farmers face increasing challenges from industry and environmental changes, opportunities exist for individuals to develop and protect new processes and business methods when adopting GM crops[2]. Whether a new method of harvesting or a new machine used during sowing or transport, patent protection can be used to protect these innovations and in turn, develop a competitive advantage, or a new asset for their business.

In considering patent protection, the following should be taken into account:

• Patent protection lasts for up to 20 years.
• To obtain a patent, an invention generally must not be ‘disclosed’ before the patent application is made. Disclosure generally includes selling or publicly demonstrating the invention, or giving details about it to third parties without a non-disclosure agreement. If the invention has been disclosed, there may be a grace period of up to 12 months, but a patent attorney should be contacted immediately to advise on the best next steps.

Patent Protection Overseas

There are over 134,000 farm businesses in Australia and each farmer produces enough food to feed 600 people, 450 of which are overseas. With over 60% of Australia’s produce sent overseas, Australian agri-business is part of a global market, and it may be desirable to seek patent protection in countries other than Australia[10]. A patent generally only provides protection in one jurisdiction, and for protection overseas additional applications must be made in those territories.

It is therefore important to understand the differences between jurisdictions in terms of Patent and Plant Breeders Rights legislation. In Australia for instance, transgenic plants, plant varieties, and plant breeding processes are patentable, while in Europe, plant varieties and plant breeding processes that are essentially biological are not patentable subject matter. Each country varies and therefore, before finalising your plans, it is important to seek advice from a qualified patent attorney.

Plant Breeders Rights

An alternative protection option exists for organisations, traditional small farmers and eco-organisations that will continue developing new varieties and alternative plant breeds – Plant Breeders Rights (PBR). One aim of plant breeder rights is to provide incentives to breeders to create new varieties which could create an increase in yields, alongside those using genetic modification[9].

PBRs grant a limited commercial monopoly to breeders of new plant varieties. The monopoly means others cannot reproduce the material, condition the material, sell or offer to sell it, import or export it and cannot stock the material for any of those purposes.

The plant variety must be new, uniform, stable and differentiated from any other variety with respect to its characteristics. To be eligible for grant of a PBR, it is important that the new variety has not or has been only recently exploited. The precise length of time after such exploitation that protection can still be applied for can be as little as 12 months. ‘Plant’ varieties eligible for protection include all fungi, algae and genetically modified plants, but do not include bacteria and viruses.

If the plant variety meets the criteria for both a patent and a PBR, it is possible to apply for protection under both. Regardless of what an innovator chooses, it is important to weigh up the advantages first.

Patents have a more extensive monopoly right and protect more than the variety. They can cover the process for producing the plant, the plant product and methods of use of the plant or of material obtained from the plant. Patents provide licensing opportunities, provide protection and create an asset for the innovatorix. PBRs, on the other hand, are much cheaper, easier and quicker to apply for, they protect the variety name and while they must be new, uniform, stable and unique, they do not need to be inventive.

The process of securing protection in the agricultural sector in Australia can be complex and mistakes at an early stage may be damaging to the outcome. It is therefore vital new intellectual property owners seek advice from an experienced patent attorney early in the process to ensure the best protection in the right jurisdictions.

For more information about patent and intellectual property protection in the food, agriculture and biotechnology sectors contact us at mail.au@spruson.com . You can follow all of our news updates at www.spruson.com/news. You can also access the Reference Guide here.