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20 Griffith L. Rev. 851 (2011)
Juridifying the Self-Replicating to Commodify the Biological Nature Future: Patents, Contracts and Seeds

handle is hein.journals/griffith20 and id is 861 raw text is: JURIDIFYING THE SELF-REPLICATING TO COMMODIFY THE
Patents, Contracts and Seeds
Charles Lawson*
This article traces recent decisions about patents over seeds to
examine the special property rules that maintain controls over
the second and subsequent generation (or progeny) seeds
derived from planting and harvesting the first-generation seeds.
The analysis demonstrates (1) that licences might be used to
avoid patent exhaustion and control the future uses of self-
replicating seeds, and (2) failing this, that self-replication is a
separate (re)making of the invention that maintains the patent
and control. The effect of maintaining controls through contract
and patents is then to juridify the self-replicating to commodify
the biological nature future.
Traditionally, the composition, form and content of the phenomena of the
physical world (or 'nature') have been traded, bought and sold, with each
subsequent owner holding a complete title to decide how and what to do
with their little piece of tangible nature.' The advances of technology and the
advent of intellectual property in relatively recent times have confounded the
tangible with recognition of its intangible components, and formally
controlled dealings with the idea embodied in the natural product or process,
together with control over how that product or process might be used.2 The
intellectual property traditionally being exploited relies on the privileges
(sometimes called 'rights') that are conferred by statute.' These privileges
traditionally have then been sold or licensed to others through contracts so
Associate Professor, Australian Centre for Intellectual Property in Agriculture, Griffith
Law School, Griffith University. I acknowledge and appreciate the assistance, guidance
and suggestions form Stephen Hubicki and the referees, although I accept all
responsibility for this work. This work was supported by an Australian Research Council
grant to research 'Promoting Plant Innovation in Australia: Maximizing the Benefits of
Intellectual Property for Australian Agriculture', DP0987639.
How the common property of humankind evolved to became private property 'remains a
puzzle ... [although the proposition that] ... private property is more cost-beneficial once
demand pressures are high enough, remains the conventional wisdom': Dagan and Heller
(2001), p 561. There are other, more persuasive, accounts for the evolution of property
over genetic materials: see Safrin (2007); Raustiala and Victor (2004).
2    The other notable advance comparable to intellectual property has been the Genetic Use
Restriction Technologies (GURTs), although they are not considered in this article: see
Caplan (2007).
The scope and duration of intellectual property has expanded dramatically in recent times,
albeit 'property' limits may have consequences for these: see, for example, Carrier (2004).

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