Biodiversità agricola e tutela degli agricoltori dall'Hold-Up brevettuale: il caso degli OGM = Agricultural Biodiversity and the Protection of Farmers from Patent Hold-Up: The Case of GMOs

This paper analyzes the problems originating from patentability of modern agricultural biotechnology. The progressive and increasingly broad patent protection granted to such inventions, pose, in fact, serious risks in safeguarding biodiversity and protecting farmers. In the first part of the paper - after clarifying what is meant by biotechnology, new plant varieties and genetically modified organisms - a few international instruments are taken into consideration. Since the seventies, the need to protect the environment has been an issue of increasing concern for the international community. Among the initiatives designed to benefit the environment, fundamental are those directed at the conservation of biodiversity. In this view, of particular importance is the Convention of Biological Diversity and its Protocols. Particularly interesting are the initiatives aimed at the protection of agricultural biodiversity, enshrined in the International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA), which create a system that seems in conflict with the Agreement on Trade Related Aspects of Intellectual Property Rights. In the second part of the paper the U.S. patent system is compared with the EU patent system, with regard to the patentability of biotechnology, in particularly new plant varieties and genetically modified organisms. In this area, the U.S. patent system offers a wider protection than the European one: the second one provides a farmer’s privilege, which allows farmers to conserve part of the self-reproducing patented material, in order to reuse it. The U.S. system also extends, by judicial decision, the patent protection for genetically modified plants, reducing the scope of patent exhaustion doctrine. In this system the interests of big biotechnology companies, strongly prevail over the interests of farmers, more and more depending on the firsts. A possible way to rebalance these relationships, would be the application of the patent misuse doctrine. In the Italian legal system, through the application of the abuse of economic dependence, the creation of such imbalances could be avoided. The patentability of agricultural biotechnology poses risks to biodiversity conservation and creates a situation where agriculture depends on biotechnology companies. To this end, some authors propose the creation of an open source system.