Dominic Berry - Intellectual property

Kat -  Now it's time for an often-overlooked topic in genetics - the role of intellectual property, or IP. But while it's easy to see how trademarks and patents might apply to processed foods and brands, it's harder to understand the wider IP issues at stake around the food we eat.

To find out more, and particularly how IP is relevant to agriculture and the food we eat, I met up with Dr Dominic Berry, a researcher from the Centre for History and Philosophy of Science at the University of Leeds, at a bustling market in London. Before we moved indoors away from the noise, we took a look at some of the delicious-looking fruit and veg on the stalls - I wanted to know if people realise that their is intellectual property locked up in these humble carrots and lettuces.

Dominic - They might not seem that way and they might seem a bit bizarre if next time you go out shopping to start looking at fruit and veg in these sorts of terms. Basically, when you're looking at a whole bunch of fruit and veg, you're really looking at a whole series of different kinds of intellectual property claims. So, maybe you know a particularly famous brand and that brand will be protected by trademarks and in some cases, copyright, that kind of thing. Or the fruit and veg themselves could be subject to certain intellectual property regulations that require that you trace where the varieties have been produced or who's grown them, all these kinds of things.

Kat - We've seen some of the kinds of foods that intellectual property applies to, so we're going to go and have a chat about what this actually means and should people own these fruit and veg.

Dominic - Sounds good.

Kat - When we're thinking about intellectual property on foods, on crops, do we just mean patents? What do we mean by intellectual property?

Dominic - Well, it doesn't necessarily just mean patents. So, there's lots of different kinds of intellectual property that might or might not apply to certain kinds of foods. So, the most obvious one is trademarks and obviously, the brands that companies make around their food products matter a great deal to them and they protect them through things like trademarking. And then of course, patenting that might apply to a particular technique that goes in to the fruit or veg involved or whatever the food product is. But the really interesting thing about IP is that you don't have to think about it in just these very narrow, somewhat legalistic and regulatory terms. So, you can have a much broader perception of intellectual property, trying to broaden our perception of what intellectual property means. And that means going well beyond the kinds of patenting, trademark and copyright kinds of things. IP is far more diffuse and it touches on virtually every aspects of not only look to the world in which we live as consumers of food or as scientists who are trying to work on various different biomaterials.

Kat - And then we add in things like corporations, companies. There was a big court case in the US about Myriad Genetics basically saying they owned - if not the BRCA2 gene then the tests that was specifically looking for the specific gene fault. That caused a lot of consternation because people felt that maybe this kind of idea isn't something that should be owned in this way.

Dominic - Yes and that's a particularly interesting case because it seems to be going back and forth. So, we just had a great big decision in the states recently where that's being deemed that it doesn't count. It can't be patented whereas in Australia equally recently, we've had the reverse decision. It's more interesting to look at these cases as providing sort of the outer limits as to what counts as intellectual property. But the project that I'm working on is trying to break free from these very narrow kinds of concerns. So, people talk a lot of time about Monsanto and these kind of things as well, alongside the Myriad case. These are important and very, very decisive moments in terms of science and our general history. But nevertheless, they can be somewhat distracting, precisely because of how unique they are and that thing called intellectual property actually permeates far wider.

Kat - You've mentioned Monsanto and that's something I want to talk about a little bit, is that often, we hear about genetically modified technology, the idea of patenting genes, patenting specific strains of fruit and vegetables that are being developed in the lab. Do you think that focusing particularly on GM foods in this way is helpful and helps to further our discussions and understanding of agriculture today? There's a lot of stuff on Facebook about Monsanto evil, GM is evil.

Dominic - The case of Monsanto becomes a lot less impressive and demands much less attention once you start understanding precisely how long people have been attempting to protect their intellectual property in the foods that we eat. Professional breeders have existed for a very long time. If we're talking about them in the commercial sense of that is their primary function as being their provider of innovation in plant sciences. This is kind of a late 18th, 19th century phenomenon. These are people who mattered for scientists immediately because they had such - not just control of access to resources but also, knowledge. So, these breeders were important to people like Charles Darwin, who I understand is someone that a lot of your listeners might be interested in. Breeders mattered fundamentally to the way in which Darwin went about during his research and the way in which he came to his eventual theories.

Kat - The discussion we've had, many people may for a start not even understand that these kind of things that work in the food that we eat. When we go to the supermarket, you just pick up a carrot, a banana, a loaf of bread. What do you want the public to understand more about some of these issues that do underpin our foods, the food that we eat every day?

Dominic - The first thing that I'd want them to be a lot more aware of is that IP doesn't just matter for the GM cases as you mentioned earlier. IP is something that matters for all of us at every level of society whether we're working in science or not. All of us to some extent will feel either is part of our work or even amongst your friendship group, a sort of property of something that that's diffused, you can maybe feel like if you introduce a bit of new knowledge to your friends.

Kat - Favourite band or my favourite gene.

Dominic - That kind of thing or you'd explain to somebody some facts about history and the next week, you see them in the pub and you overhear them telling somebody else that same fact. You might sort of feel somewhat like had it nicked from you...

Kat - That's my joke.

Dominic - And without proper citation, then perhaps this isn't quite right. And those problems get magnified massively when you start talking about science and scientists in which the whole process of how credit is shared out between people and the way in which different forms of labour are more or less appreciated or not. These are the ways in which intellectual property manifests for all of us.

Kat - And where do you think the future is? Do you think that things are going to get more constrained and people are going to want to own a share of more and more of it and make more and more money, or do you think things are going to open up - life is for everyone, food is for everyone, genes are for everyone?

Dominic - From a historical perspective, we're living in really, really interesting times because in some ways, we see a strengthening of intellectual property all the way down to people protecting their kinds of databases that they use and collecting together their scientific data. Those kinds of things are already been integrated into intellectual property protection. There are lots of other ways. We're seeing regulators and government bodies becoming all the more sophisticated as to what the way in which an intellectual property regime might work. so for instance, as part of the project that I'm currently working on, is I'm working with the Organic Research Centre. Here, we have an example of plant breeders producing varieties that up until around March of last year would've been illegal for them to even commercialise or sell, simply because these are varieties that do not meet the minimum standards for intellectual property protection. In order to be able to be granted a right over your plant variety and therefore, make it legal and actually able to sell you have to pass certain conditions.

Kat - Like it has to be new enough, exciting enough.

Dominic - Yes, exactly - distinctness, uniformity and stability. Those are the three primary regulatory requirements that a variety has to meet in order for it to become legal and saleable. Now, the varieties that people at the ORC are wanting to release in the next few years, these are called population varieties. The point of them is that they are not distinct, uniform and stable. That's the very point of them.

Kat - They're kind of wobbly and ugly, and a bit scrappy around the edges.

Dominic - They are capable of greater adaptability to environmental changes. This is obviously something that makes them particularly interesting at this time with climate change.

Kat - The big thing with trying to put any kind of legal framework on science particularly on biology and genetics is that you don't want to suppress research. You want to actually encourage people to find ways of making life better and presumably, IP law can help that and can also hinder that too.

Dominic - Absolutely. so, innovation can happen in all sorts of places, in all sorts of ways. Innovation doesn't just have to happen with those kinds of things that are very easily understood on the terms of contemporary intellectual property law. So, this is why we need people working on the scientific and public policy side of things that can put the case that there's more to the natural world than that which is protectable by IP law.

Kat - That was Dominic Berry from the University of Leeds, and you can find out more about his research project, Cultivating innovation, looking at issues around IP and genetics at
CultivatingInnovation.org