Washington International Law Journal


The majority of people in the developed world have the luxury of never having to address food shortages and malnutrition. In developing countries, however, ensuring food security presents greater challenges. Agricultural biotechnology has the potential to alleviate many of the food crises occurring in developing countries. Unlike private sector corporations, public sector entities are creating genetically modified (“GM”) crops to ensure food security. However, the intellectual property rights (“IPRs”) to the many technologies required to create a single GM crop are often fragmented across the private and public sectors. Fragmentation of IPRs creates a “patent thicket” that increases the challenges of developing GM crops that are not restrained by freedom to operate complications. China has a successful agricultural biotechnology industry that is almost entirely public sector. Recently, China strengthened its intellectual property (“IP”) laws as a result of its accession to the World Trade Organization (“WTO”). Despite the beneficial effects of harmonizing IP laws among WTO member states, there exists a negative consequence of IP globalization as it pertains to China’s public sector-driven agricultural biotechnology industry. Stronger IP laws and enforcement will create an environment more favorable to the interests of foreign private sector entities. Any subsequent introduction of technologies used to create GM crops will result in the protection of such technologies under Chinese law, but without open availability under most circumstances. To reduce the potential frustration of its public sector, China should declare potential food shortages a national emergency. In doing so, China may require compulsory licensing of the technologies necessary to create GM crops essential for food security without violating its WTO obligations. Because the compulsory licenses would be granted only for selected technologies used to create GM crops, such licensing would reduce the negative effects of IPRs fragmentation without raising substantial concerns of compromised innovation resulting from parallel importation.

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