Genetic Use Restriction (or Terminator) Technologies (GURTs) in Agricultural Biotechnology: The Limits of Technological Alternatives to Intellectual Property

This article examines the adequacy of terminator technology as a potential substitute for traditional intellectual property. It acknowledges that the technology provides a stronger protection and reward mechanism than that offered by the traditional intellectual property rights regime. However, terminator technology or any other technology for that matter, is outside the pantheon of intellectual property regimes. Fundamentally, terminator is a technological answer to the quest by private sector interests to improve appropriability of returns on investments in agrobiotech. It potentially represents a panacea to the long standing industry struggle over the profitability of private research in agrobiotech and the need to improve appropriability of returns on investments in self-pollinating plant varieties. Terminator technology constitutes a molecular or cellular proprietary control mechanism for plant genetic resources (PGR).\nConsequently, terminator technologies are attractive assets to private sector investors in agricultural research. However, the nature of terminator technology as ‘‘a technological response to an institutional problem’’ under- mines a major policy plank of intellectual property rights, namely, the preservation of knowledge in the public domain through time limit on protection and the requirement of compulsory disclosure. As a prospective molecular substitute for or imitation of intellectual property, terminator technology not only provides no known agronomic benefit to farmers, but also has the potential to freeze up opportunities for knowledge transmission, accretion, development and diffusion of technology in transgenic crops. This article argues that any potential technological substitute for intellectual property that sac- rifices the latter’s underlying public policy objective of the promotion and dissemination of knowledge in the public domain may be overkill in the hands of industry. To the extent that terminator technology does not account for the public domain consideration which is a material aspect of intellectual property, it may not be an acceptable substitute. Even though they may fix perceived institutional problems, by their nature, technologies alone do not address the public policy nuances imbedded in conventional intellectual property jurisprudence.\nIn exploring the foregoing issues, this article is divided into three major parts. Part I evaluates the private sector’s quest for profitable appropriability of returns on investments in agricultural biotechnology, with emphasis on plant/seed breeding. It also explores the progressive response of intellectual property to accommodate that desire. Part II focuses on the nature and concept of GURTs as a self-enforcing technological imitation of intellectual property and ongoing public policy scrutiny of the technologies. It evaluates the terminator initiative as akin to industries’ vote of no confidence on extant attempts by conventional and sui generis intellectual property regimes to accommodate their quest for a tighter appropriatary and control regime. Part III broaches the public policy underlying the philosophy of intellectual property and evaluates the shortcoming of terminator technology as a technological imitation intellectual property. The paper concludes by pointing to the need for direct inclusion of intellectual property considerations in the ongoing discussions on the way forward for GURTs. This paper, then, is meant to assist in creating a balance between the extant focus of those initiatives on environmental, biosafety, health and socio-economic issues and a consideration of the intellectual property ramifications of GURTs.

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