South Africa: Patents Of Note 1

Last Updated: 16 April 2019
Article by Thomas Gerard Schmidt

Patents of Note is a regular series of articles touching on patents that are of interest to the general public.

Recently, a research team from the University of Illinois announced a major breakthrough in the field of crop science. Their research, published in the well-respected academic journal 'Science', detailed their efforts to fix a problem that has bedevilled many crop plants (including such staples as wheat, rice and soybeans) since they were first bred and cultivated by man.

The problem starts with photosynthesis, which occurs in small subcomponents of plant cells known as chloroplasts. Photosynthesis takes in carbon dioxide and water from the environment and uses light to combine the molecules into simple sugars. In the process, the plant gives off the oxygen that we all need to breathe and makes the food that we all eventually eat (some in the form of meat from animals which eat plants).

In some cases, however, this process can go wrong. Specifically, the enzyme complex which performs one of the prime steps of photosynthesis (which is charmingly acronymed as RuBisCO) will occasionally take in oxygen instead of carbon dioxide. This phenomenon, known as photorespiration, effectively reverses the photosynthetic process – using up energy that could be capturing carbon dioxide and creating sugars. RuBisCO does this about 25% of the time under normal conditions, but gets progressively less selective with increasing temperatures and lower carbon dioxide-to-oxygen ratios.

There is still some scholarly debate as to the function, if any, of this low selectivity. Photorespiration has, for instance, been suggested to be advantageous in conditions where soil nitrates are limited. Regardless, in the context of the farmer's field, some of the most important crop plants known to man effectively spin their wheels when they could instead be doing useful photosynthetic work. In a warming world facing increasing shortages of arable land, it is no stretch to say that photorespiration is now a major limiting factor in food production.

What the researchers did to solve things involved editing a plant of the type that suffers inordinately from this problem with new genes designed to redirect the enzymatic pathways of photosynthesis away from photorespiration and towards productive use of RuBisCO. This yielded an astounding 40% increase in biomass production under ideal conditions, and may well be the key to unlocking similar increases in productivity in the field.

This brings us to the subject of this article: PCT patent application WO 2018/165259. This patent application, along with a corresponding US complete patent application, stems from a founding US provisional patent application filed in March 2017. The applicant (in this case the US government, as represented by the Secretary of Agriculture) also filed a corresponding plant patent in the US, which is a peculiarity of that system that merits further discussion at some other point. The PCT application, like all PCT applications, will not result directly in a patent. Instead, it is going through a non-binding examination over the course of 18 months before ending up in so-called national-phase applications in the various countries and jurisdictions of the world. This invention accordingly has a long way to go before the applicant sees any protectible rights.

One may object at this point that such a momentous discovery should not be limited to benefiting a single party, even (or perhaps especially) if that party is an arm of the government of the largest economy in the world. This is a worthy discussion, and raises the subject of compulsory licences and similar measures whose existence in national legislation is probably not as widely known as it could be. However; in this case such a discussion is almost superfluous in the face of the long timelines that Genetically Modified Organisms (which is what any resulting plants having these genes would be) face in getting to the farm.

As it stands, current GMO legislation in South Africa (which is considered liberal by world standards) means that any GMO crop will effectively need to spend years in field trials before it can be sold. The result, so far, has been a scant trickle of new GMO crops getting registered each year. Nearly all of the recent registrations are for maize, cotton or soybean with 'stacked' traits – simple remixes which combine well-known genes dating back to the 1990s. These genes, in turn, are almost universally for insect resistance or herbicide tolerance, rather than increased yield. This is to some extent the intended result of a conservatively-designed system – to intentionally slow progress to a trickle rather than take the risk of producing new weeds.

Repeat this process across every country or jurisdiction of the world, and the result is that the US government would have at most a scant few years of patent protection available before its ground-breaking technology goes into the public domain. The most likely outcome of this patent story, then, is that well-intentioned and conservative-minded legislation will delay a desperately-needed revolution in food security for years to come.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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