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 Main subject - jan/feb 2007
The task of negotiating in times of obtainer rights
Dr. Miguel A. Rapela
miguelrap@speedy.com.ar
Difficulties for an effective protection to intellectual property related to the obtention of new plant varieties, biotechnological inventions and the interaction among them are common subjects all over the world. Two recent articles published in magazine SEED News have just approached the subject, from the particular perspective of Brazil, Bolivia, and the region around.
Argentina, which counts on an important seed industry, has accepted biotechnology applied to extensive crops with the world's highest rate, and was meant to be pioneer in promulgating a law on it but shows, however, a poorly effective system for intellectual property of plant obtentions. It could be due both to legislative anachronism and lack of will, and/or management ability for solving conflicts.
Aware of that, three family-type, Argentinean national seed companies which altogether sum 210 years of work in plant improvement, got together in order to rebuild Fontar (Argentinean Technological Fund), a support for an integral analysis, diagnosis, and solutions proposals project. Results have been recently shown *.
Two aspects must be taken into account in order to value such contribution; firstly, the subject was approached for the first time on the basis of a multidisciplinary focus, and efforts from agronomists, lawyers, economists and sociologists, have been put on it. Secondly, new strategies have been applied for dealing with the subject and it is what we comment below.
The Theory of Games
The Theory of Games was enunciated by the mathematicians Von Neumann and Morgenstern and published in 1944 in a classic book (The Theory of Games and Economic Behavior). Fated to be a mere intellectual exercise, early in the 1950's, the North-American mathematician John Nash (whose amazing life was taken to cinema in the movie "An amazing mind") converted it into a valuable tool which had important applications to economy, psychology, sociology and biology.
At normal situations of positions and interests conflicts, the participant actors look for maximizing utility by electing some action courses. However, as each actor utility depends on the others courses of actions, the conflict usually ends in one of these three ways:
the strongest wins (or the one who has more lobby capability, if preferred);
a solution is reached which does not serve any of the actors (everybody loses), or;
no solution is reached (every body loses as well). The challenge, then, is finding an end in each everybody wins.
The Theory of Games (Cooperative) mathematically shows that, in several situations, if the distinct actors cooperate with each other, the result is better for all of them than looking for maximizing their own utility detachedly. John Nash's work has shown the possibility of reaching a balance that comes about when the strategic choice of each actor is the optimal answer to the strategic choices of the other actors. At this balance point, any of the actors is willing to change its strategy once doing so will cause their utility to decrease. Currently it is known as Balance of Nash thanks to which he was awarded with the Nobel Award in Economy in 1994.
Conflict situations among different actors usually have one only Balance of Nash, even so it was shown that the existence of conflicts with several Balances and other in which it is impossible to be found. The question suggested in the paper was: Would it be possible to find a unique Balance of Nash able to satisfy the distinct participant actors of the conflict in order to implement an effective system for intellectual property over plant obtentions in Argentina?
Actors and the negotiation
Even though some reasons have been pointed out due to which the conflict could not be solved, the concrete is that we are facing a highly complex case due to the diversity of actors involved. Let us analyze the case of Argentina.
a. The Government: wrongly called State, since if it was like that a medium safety of the existence of a continuous policy over time could be achieved. Government is an actor in the conflict with high position variability;
b. Obtainers and inventors - hyper complex actors involving:
The State and its institutions for researching and experimenting plant improvement and biotechnology (Inta, Conicet, Universities) which release (and register) plant varieties and develop (and patent) biotechnological inventions;
National seed producer companies, family and cooperative type, and societies properly said;
International seed producer companies, that are almost all, in turn, immersed in high tech biotechnological programs;
c. Seed multipliers: several and presenting diverse enterprise structure;
d. Seed producers and sellers: as above;
e. Farmers: other big actor, since for Argentina they are represented by four associations: Argentinean Agricultural Foundation (FAA), Argentinean Rural Society (SRA), Intercooperative Farming Confederation (Coninagro), and Argentinean Rural Confederations (CRA), which in several instances present deeps divergences in their positions.
Actors involved in the negociation for elaboration of the haw of plant protection rights
What the study involved
First case: Identifying and analyzing the problem, avoiding confounding it with the different actors.
The pompous declarations, losses, etc, tend to confound the actors with the problem itself. Thus, the clear identification of the problem as well as its objective analysis is crucial. For the case of Argentina, in addition, there was the perception - very equivocated as shown by the State - that the problem was restricted to charging royalties, in a confusion between cause and effect.
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