Managing Intellectual Property

Francesca Re Manning, CAS-IPKnowledge Sharing Week, CIAT, 22 May 2009

Challenges

Public good investments in agriculture face challenges• Increased emphasis on market mechanisms

forcing publicly funded organizations to respond to broader economic opportunities

• Heightened awareness of agricultural innovations as intellectual property, thus economic potential of inputs

Changing Context for Intellectual Property• Globalization

– International treaties and conventions– Integration of markets (both commodity and

specialized)–Consolidation in the Private sector leading to

increased leverage of Multinational corporations

Changes

Changes in research management and management of intellectual property• Complexity of research interactions and

partnerships

• Complexity of issues –regulatory, intellectual property, contract law

Managing IP

CIAT must manage its IP and contractual arrangement to ensure• Delivery on its mission

• Public access to its work (public domain)

• Freedom to share research results

What is CAS-IP?

Member of CG System Office; set up by the Centers in 2000

Mission of CAS-IP: enable access and use of CGIAR products for the benefit of the poor through effective management of Intellectual Assets (IP) and information transfer /sharing (Technology Transfer).

Who is Francesca Re Manning?

English qualified solicitor

First Degree in International Law & Human Rights

CIFOR Internship (2005)

CAS-IP full-time lawyer since July 2008• CIAT• CIP• CIMMYT• IFPRI

IP Management

CAS-IP assists CIAT in IP management

HOW?

CAS-IP support to CIAT

Support to Public-Public/Private Partnerships

Strategy

Access to Knowledge and Products

Germplasm & SMTA

Capacity Building

Policy implementation

Food crisis

Hunger

Need for food

research

availibility

Partnerships

commercialization

food scarcity

research

develop newproducts

+

+

-

B

input PPP

distribution PPP

protect your research forfurther use in the public

domain

Urgent Need for Nutritious Food – “Food Crisis”

While maintaining the focus on --Poverty Reduction/Increased Livelihoods

food price

ability tobuy food

per capitafood

adequacy

public sectorresearch

diversity of moreproductive agricultural

inputs

productivity ofagricultural inputs

need for moreproductive agricultural

inputs

total fooddemand

totalpopulation total food

production

farmers' desire toproduce food

adequacy ofagricultural inputs forsmall scale farmers

affordability ofagricultural inputs forsmall scale farmers

-+

-

+

+

+

++

food supplydemand gap

+-

+

+

+

++

privatesector

research

+

+

+

+B

R1

R2

R1 - research improvesfood security through

availability

R2 - research improvesfood security through

access

I P laws,commercialization

public privatepartnerships

Public/Private Partnerships

Contract drafting, review and negotiations• Brachiaria

• Exclusivity • Termination• Milestones• Payment

Public/Private Partnerships

• Waxy Cassava

• Ownership of resulting Intellectual Property o CIAT, the Company or jointly owned?

• Publicationo The Company requires that the results of

the Study shall not be made publicly available for a term of 5 years.= preventing CIAT from creating public goods

• Scope

Strategy

Transparency in publishing PPP contracts

Criteria for selecting contracts • Money?• Strategic fit?• Exceptions allowing exclusivity under GRPC IP

Policy– Exclusivity– Restriction of goods

Strategy

– When it is indispensable for the effective utilization or further improvement of Centres’ intellectual assets, the Centres may grant limited exclusivity for commercialization in a defined market segment, for a limited period of time, provided that the intellectual asset remains available without restriction, at no cost or minimum administrative costs, for research and development in developing countries and ARIs in support of the CGIAR mission.

Centres will only enter into agreements concerning contractual rights that restrict the use of the resulting products in ways that are inconsistent with the policy, when the intellectual asset the Centre is producing will result in significant improvements to food security and or poverty alleviation in the countries where it can be used

Germplasm

Proprietary questions• How do we determine whether we have FTO?• Who owns the germplasm?• What are the rights of the owner?• How do we respect those right• Can we use it for breeding and research?• Can we sell it to others? Can we claim it as ours?

International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRA)

• Germplasm in public domain, governed by Multilateral System (ML)

• under the management of ITPGRA (Annex 1)• food and feed uses

Convention on Biological Diversity (CBD)• All other uses

International Obligations

Greys Areas

Public-private contracts and SMTA• Commercialization when material can no longer be

used for breeding, a mandatory payment to the ITPGRFA fund

Additional terms and conditions over material under development?

If want to give some material to a small farmer?

Payment and benefit- sharing regime

CAS-IP assists CIAT with these questions

Increase Access to Knowledge and Products

Defensive Publications

The “Enola” Patent• CIAT filed for a re-examination in 2001• We are awaiting a decision by the U.S.

Circuit Court for Federal Appeals• Expensive and time consuming

CIAT has signed an agreement with the EPO to put publication in the NPL

Increase Access to Knowledge

Is the work protected by copyright?• Gives the owner of the right to control how a creative

work is used– In most countries rights last for life of author + 70 years

Who owns copyright at CIAT?

Does CIAT seek and obtain authorisation to use others’ copyright, eg photos, flowcharts?

How does CIAT deal with “adaptation” of its works, ie translations? keeping the quality

Who is the owner?

What are the Options for Sharing?

Disclaim copyrights –e.g. U.S. Federal copyright Law has a provisional that exempts all publications by Government employees and agencies from copyright

License openly with standardized licenses–e.g. “Creative Commons” licenses, “Open Access” arrangements with publishers, and Open Source licenses

What are the Options for Sharing?

Negotiate “Open Licenses” with publishers

“Fair Use” or “Fair Dealing” Sharing options (exceptions) incorporated into Copyright Laws• Cover exceptions for:

– Personal use

– Educational Use

Creative Commons

Creative Commons (CC) – skipping the intermediaries but have upfront uses

From All Rights Reserved to Some Rights Reserved

The owner chooses a combination of conditions to licence his/her work from 6 CC types

Creative Commons

Creative Commons

Attribution Non-Commercial No Derivatives• This license is the most restrictive of the six main licenses,

allowing redistribution. This license is often called the “free advertising” license because it allows others to download your works and share them with others as long as they mention you and link back to you, but they can’t change them in any way or use them commercially.

Open Source Licensing for Software Code

Different sharing philosophy from CC License

Tend to have “reach through”/”viral” aspects that mandate successive developments of source code to be available for additional improvement

Open Source Initiative certifies Software Licenses as “Open Source” when the licence meets its standards.

CC and OS Licensing Problems

Compatibility

Applicability in specific jurisdictions

Interpretation of License in view of the Law

Enforcement

• (Also applies to IPRs, generally)

Separation of economic rights and moral rights

Moral Rights

In every Open Access tool Recognition is key

Why? • Moral incentive• Responsibility

Right to claim authorship – discernable?FAO copyrights ownership

• Moral rights of authors

Capacity Building National Partners Initiative (NPI): an International Society of IP Practitioners

Participating Centres

IRRIICRISATCIPCIMMYTIFPRIWARDABioversityCIFORILRIICRAFAVRDCCIAT

In Conclusion

Manage your IP • Know what you sign and commit to• Read the agreements and understand them so that you can

negotiate and review the clauses• Ensure material under ITPGRFA transferred via SMTA• Know what knowledge right to keep and control, or right to

“give away” and share• Police any licensed IPRs• Integrate IP policy with CIAT’s mission to benefit expected

end-users• Instruct researchers as “expert witnesses” in cases of

infringement or other inquiries.

Thank you!

f.remanning@cgiar.org