Competitive and
adversarial relations
A
widely accepted principle is that Centres should avoid activities for which
market incentives are sufficient. Thus, on the face of it, competitive or
otherwise adversarial relations with the forprofit sector would appear to be an
irrelevant topic. None the less, such relations may occasionally be in accord
with the CG mission.
The
orphan crop argument
According
to the orphan crop argument, Centres should focus on crops that are important
to the poor but lack commercial appeal. Obviously this has IP implications:
without commercial interests, IP trouble is less likely. The orphan crop
argument can be qualified in a number of ways, all of which have to do with
competition with private-sector products. First, while nonhybrid varieties may
be of inferior quality to hybrid varieties of the same crop, they may nevertheless
compete with hybrids, forcing firms to lower the price of hybrid seed. Thus,
sophisticated multinational technology may become affordable to farmers (Barton
and Berger, 2001). Second, the public sector may have a role in developing
products that lack negative externalities – for example, environmental effects
of pesticide use associated with pesticide-resistant varieties. Third, genomics
and new applications of orphan crops could render them of interest to for-profit
organizations, making them valuable Centre assets in relations with for-profit
organizations. Fourth, the best opportunities for poor farmers may reside in
commercial (not subsistence) activities that are new to them. But such commercial
activities are of interest to private research firms as well.
Infringing
others’ rights
IPR
infringement by Centres is most likely to occur inadvertently. Infringement is
often far from obvious. Many patent claims are unresolved. The main danger of
infringement may be a reduced willingness by IP owners to cooperate with
Centres, rather than anti-Centre litigation which is unattractive from a public
relations perspective. Infringement can only be prevented through investment in
IP expertise and IP information systems.
‘Inventing
around’
Centres
wishing to avoid infringement can opt for the strategy of inventing around the
IP. This is especially relevant when, among a cluster of complementary IP
items, some are much more difficult to obtain than others. Such ‘gaps’ in a
‘toolkit’ are prime targets to be designed around. For example, ‘public
research organizations in China and India appear to be have developed their own
transformation protocols for Bt cotton although it is likely that they have used,
legally or otherwise, some proprietary tools as well’ (Byerlee and Fischer,
2001, p. 8, citing Pray). The product of inventing around may well be valuable
– since it is a substitute for the original input, which was worth obtaining IP
protection for. The new product is thus a potential competitor to the original
input, and may serve as a ‘bargaining chip’ in various relations. This adds to
the attractiveness of inventing around.
Stimulating
local industry
Stimulation
of local industries – e.g. seed or agbiotech firms – that compete with
multinationals, thus reducing the latter’s market power, may benefit farmers
and consumers. The Centres have a catalytic role in this regard.
Contesting
IPR
IP
strategy is not complete without serious consideration – necessarily supported
by costly expertise and information systems – of the option of contesting other
people’s IP: ‘It can happen that a patent is granted which ought not to have
been . . . Where it is clear that this has happened, it is wrong to collude in
the patentee’s unjust claims’ (CGIAR, 1998, p. 12). CIAT may be the only Centre
that has initiated litigation so far. It is contesting one patent, and has considered
contesting another, on the grounds of prior art. Both concern varieties held in
trust by CIAT, which considers itself partly responsible for keeping in-trust
varieties in the public domain and wishes to set a precedent to discourage biopiracy.
Once an IP information system is in place in the CG System, there may be more
cases of Centre-initiated litigation. It may often be possible to find allies
to pay for part of the litigation costs.
Relational
Decomposition of IP Strategy
All
of the relation types discussed in the previous section should be taken into
account in the design of the Centres’ IP strategy. This is true even when we
confine our attention to a single decision problem. For example, suppose that a
Centre needs a proprietary input for its R&D programme. What are the
Centre’s options? Byerlee and Fischer (2001) and Wright (2000) identify
options. What follows is a somewhat expanded list of options, each of which
(with one exception) involves one or several relation types.
1.
The
Centre may negotiate with the input’s owner for a licence.
2.
The
Centre may unilaterally access the technology.
3.
The
Centre may contest the IPR in court or at the IP-granting agency.
4.
The
Centre may attempt to invent around the technology. This may result in a
valuable asset in exchange or collaborative relations. Note that even when any
of the potentially adversarial moves (the second, third or fourth options) are
not carried out, they may still play a role as implied or explicit threats
(Lesser, 2000, pp. 612–613).
5.
The
Centre may initiate collaborative research with the input’s owner; use rights
to the input may be included in the partnership.
6.
The
Centre may initiate a consortium and participate in it. The consortium may
include other parties that would like to access the proprietary input, and may
either focus on this particular input or have some broader theme.
7.
The
Centre may entirely abandon the R&D programme if the input is both critical
and inaccessible.
8.
The
Centre may abandon the R&D programme, but catalyse other – non-profit or for-profit
– organizations better able to deal with the input problem to undertake the
R&D programme instead.
9.
Specific
funding opportunities might be available in combination with some of the aforementioned
options. For example, perhaps the home government of the input’s owner might help
subsidize use of the input.
10.
The
need for proprietary inputs renders it more attractive for the Centre to seek
IP on its own R&D products. Such a strategy would enhance many of the
aforementioned options.
The
method of relational decomposition is relevant for many choice problems in IP strategy,
such as the question whether or not to seek an IPR product (E. Binenbaum, 2002,
unpublished). The various IP choice problems are closely linked to each other;
they are best integrated in a single strategic vision. For example, seeking IP
protection is linked to accessing other people’s IP. Game theory is helpful in solving
IP choice problems. In the example given above, each option initiates a game. Lesser’s
(2000) sketch of adversarial and cooperative approaches to IP problems in
agbiotech clearly has clear connections to game theory.
Thinking
through IP strategies would be greatly aided by an appropriate information system
that furnishes readily accessible information on relevant agents, their IP,
and their inter-organizational relations. For example, when a Centre selects a
partner for an R&D collaboration, it might already have multinational A in
mind. Without a proper information system, the Centre might go ahead and accept
A’s terms for a partnership. With a proper information system:
·
the
Centre could check whether other partners could be selected instead of or in addition
to A;
·
it
could examine the IP holdings of different partners;
·
it
could access reports on other partnerships of those prospective partners,
drawing cautionary and innovative lessons from such information;
·
it
could negotiate a better deal perhaps increasing its R&D budget while
enhancing its freedom to operate;
·
it
could strengthen its position by inclusion of other partners from the public
sector, thus being able to insist more strongly on the interests of the poor;
·
it
would know its own potential bargaining chips as well as bargaining chips of
other public institutions that might join the partnership, and so on.
It
is only when managers are fully aware of the issues and the integrative
approach discussed in this chapter, that they will be able to appreciate the
value of an information system that offers these advantages.