|
 Main subject - jan/feb 2007
continuation: The task of negotiating in times of obtainer rights
This way, a considerable part of the study has taken to this first case, being analyzed who are the actors affected, who are the ones potentially benefited from an exchange, and who are the less impaired in case an exchange does note occur. An economical analysis of the conflict was done looking for identifying who are and how much is being lost (or how much is not being gained). The relationship between obtainers and users with regards to the exception of the farmer and own use, the relationship among obtainers, and the relationship between biotechnological developments obtainers and inventors with regards to the plant breeder. The study of protection holes went deeper and the conflictive mark of law, licenses, and value capture was analyzed.
Second case: Identifying and analyzing actors' interests, not their positions.
When analyzing the complex scene of the actors, which was already described, it was easy to appreciate a profuse and profound diversity of positions. However, when analyzing actors' interests, it was possible to identify a non depreciable number of agreements, as the theory in which the system is based on signs.
In order to determine the explicit and implicit government interests, obtainers, inventors, seed multipliers, sellers, and users, performed interviews before and during several stages of the research. It was possible to fundamentally determine the common interests which are even so surprising:
there is a problem;
the problem must be solved;
if the problem is not solved everybody loses;
intellectual property must be honored and respected;
the use of technology has to pay for it; and
there are certain sectors that due to several circumstances and characteristics must be clearly and specifically benefited by an exception to the property right.
Third case: proposing as much action courses as possible in order to maximize common interests of the distinct actors.
At first, this can be taken as a relatively simple case. Why should not exist a model for protection in the world that could fit Argentina's needs?
Indubitably, the answer was negative; in one hand United States share a seed producer industry very similar to Argentina's while the existence of both and consolidated research programs, private and public participation, significant biotechnological development and large commercial acceptance of this sort of products. However, its legal system is diametrically opposed. In United States patents are applied on plant varieties, the systems of contracts are widely accepted as usual way of commercial relationship, tribunal decisions have evaluated the whole pact and cross licenses are the competent way for the relationship among technology generators.
On the other hand, Argentina and the European Union have a similarity on the legal protection basis, that is, systems of obtainer rights derived from UPOV's minutes and non acceptation of patents on plant varieties. However, in European Union, commercial biotechnology hardly exists and due to that the experience to be drawn from this source is void.
Finally, at Latin America level, several countries have recently adopted new rules for protection of plant obtentions.
All these were jointly analyzed and the potential advantages and disadvantages of each solution put into balance.
Fourth case: proposing a feasible model for objective analysis
This last case is fully based on the previous one. It was elaborated a project proposal for plant protection according to the patent law in vigor, the agreement ADPIC, UPOV's minutes, and fund codes.
The challenges
The project itself proposes two challenges. The first one is from the authors to the distinct actors:
Will they be able to show that the solution proposed is the only Balance of Nash existent in this conflict and cause actors to realize that their strategic choice is the optimal answer to the strategic choices of the other actors, while they do not feel tempted to change their strategy since any change would trigger a decrease in their utilities?
And, the following challenge is exactly opposed to the first one, with regards to the distinct actors to the authors:
If the previous one is negative, will it be possible to propose a new project model with a Balance of Nash able to surmount the one planned in the original project (which is theoretically crucial, since if it is not possible, this project, due to defect, is the course to be elected.)?
Taking into consideration that the scientific advance does not occur by means of certainties but by means of promulgating surmounting hypothesis, a positive answer to the first challenge would be a transcendent step but, more than that, it would be giving an answer to the second one. Due to those reasons, the authors understand that the whole study and the law project, particularly, will constitute a useful support to Argentinean Republic and, probably, to that whole region.
The big points of balance of the project are:
1. Patents rule (events) x obtainer rights (germplasm)
2. Rights of small farmers x duties of the remaining
3. Concession of title by the State x control of the exercise of obtainers rights
4. Exception to investigation x essentially derived variety
5. Commercial authorizations given among inventors and obtainers
Summary
In order to generate a proposal of solution to the problem of intellectual protection to plant obtentions in Argentina, an interdisciplinary analysis and diagnosis work has been developed enclosing all conflicting points. The proposal of solution is an innovative project of law based on a balance of strategic choice among the different actors involved, their interests and legal mark.
(*) "Innovation and intellectual property in plant breeding and agriculture biotechnology". Authors: Rapela, Miguel, G.J. Schotz, E. del Acebo Ibáñez, J.M. Massot, H.M. Noir, F. Sánchez, A. Sánchez Herrero, M.C. Strubbia and M. Witthaus. Editorial Heliasta, Buenos Aires, Argentina, 783 pages, 2006. The law project can be consulted at: http://www.austral.edu.ar/derecho/departamentos/
cpi/vegetales_proyectodeley.pdf
|
|
............
|
