La tentative PIPRA (Public Intellectual Property Resource for Agriculture) un « commun » en propriété intellectuelle sur les biotechnologies agricoles ?

In 1998, the following article was published in the scientific research journal Science : ?Can Patents Deter Innovation ? The Anticommons in Biomedical Research?. M.A. Heller and R.S. Eisenberg explore how the expansion of intellectual property rights in the field of biomedical research leads to an underuse of knowledge relating to genomics. More specifically, the conclusion drawn by the authors is that the excess of rights on previous inventions is likely to deter future research. This ?tragedy of the anticommons? principle was famously illustrated by the case of the ?Golden Rice?. This transgenic rice, developed in the 1990s by a university professor, had an increased vitamin A content in order to tackle the issues of malnutrition that arose in some developing countries. At the time, the production of this rice entailed negotiations with a dozen of patent owners. The company Syngenta granted the organisation in charge of improving the plants in developing countries with the right to sub-licence the invention for free, thereby enabling the project to come together. The ?Golden Rice? case is ?the first example of plant biotechnology that has a humanitarian goal? and constitutes the founding paradigm of the PIPRA objective ; a California-based association of universities and not-for-profit research institutes aiming to free agricultural research from the restrictions of the fast increase in property rights. Following the adoption of the Bayh-Dole Act in 1980, universities became the owners of the innovations that resulted from state-financed research. Special technology transfer offices were then established by universities so as to identify the inventions that were patentable and grant licenses to private firms. This led to a sharp expansion of both registrations of patents and granting of licenses, with the unintended consequence of fragmented intellectual property in the hands of universities, not-for-profit research institutes and firms. Since PIPRA?s objective is to ?reunify? the technological agricultural portfolio of the public sector through a collaborative process, its initiative is sometimes presented as a new ?common? on the intellectual property scene. Whether looking at the issues PIPRA intends to tackle (namely, the patent thickets in the agricultural biotechnology field), the end goals it pursues (facilitating access to agricultural biotechnology for research-less cultures) or the means it aims to implement (such as forming an intellectual property clearinghouse and establishing patent pools), it seems clear that in all aspects, PIPRA can safely be regarded as a ?common?. Despite a few achievements ? such as the creation of a data base on the agricultural aspects of the patents portfolio owned by its members, and the setting up of a plants transformation vector which can used in complete freedom to operate ? the PIPRA initiative was not as successful as it had expected. Indeed, the intellectual property clearinghouse mission was relegated to the bottom of the agenda and the team did not manage to create a significant number of patent pools. There are many reasons for such a failure. First, some assessment mistakes were made from the start, such as the overestimation of PIPRA?s capacity in terms of patents and in terms of its mobilising force of all stakeholders. Yet PIPRA?s lack of success may also be due to the very nature of the initiative. Indeed, the scarcity of the means put in place to create a common resource, its humanitarian mission was made very vague and its ambiguous standpoint regarding intellectual property all demonstrate that PIPRA probably did not have the firm intention to form a common after all. Finally, one could wonder whether the specificity of genomics research, the exclusion of the farmers from the project and the substantial costs of biotechnologies may also have doomed PIPRA to failure.