PRIVATIZING AGRICULTURAL GENETICS: AN ANALYSIS OF THE PROCESS AND IMPLICATIONS OF CREATING PROPERTY FROM A ONCE RES NULLIUS PUBLIC GOOD

For milennia, agricultural genetics were common-pool, open access (or res nullius) resources, unencumbered by the assignment of property rights. Beginning in 1930, a series of legislative and judicial actions incrementally altered the legal definition of agricultural genetics and, ultimately, permitted the application of utility patents to a resource that was once free to all. In the factitious process of creating ownable property from that which was previously shared, the potential consequences of privatizing these res nullius resources were often unanticipated, underappreciated or entirely dismissed. Ramifications include not only the widely publicized concerns of environmental contretemps and the potentially insalubrious effects of consuming transgenic foods, but also more obscure implications, many of which are economically counterproductive and socially undesirable (e.g., promoting farmers onto a technology treadmill that requires them to implement successive iterations of evolving technologies or risk becoming noncompetitive; creating hostilities between technology adopters and non-adopting farmers which, in turn, complexifies social relationships and diminishes the quality of rural life; encouraging questionable corporate behaviors; promoting strategic hold-ups whereby broadly applied patents constrain the widespread use of licenses and consequently inhibit further evolution of technologies, and; creating patent thickets that produce bottlenecks, slow innovation, and increase transaction costs). Proponents of biotechnology seek to strengthen the inchoate property to the point of adoption by minimizing or negating controversial aspects while emphasizing potentially positive outcomes. Opposing interests attempt to exploit potentially negative implications or outcomes in an attempt to weaken the propertization to the point of abandonment. (According to Radin (2000b), the term, propertization, refers to the creation of property, often intangible, or at least less tangible than traditional chattel assets, through a socially sanctioned, uncertain and malleable process.) The success of any attempt to privatize agricultural genetics is not assured, and opportunistic stakeholders opposing or promoting the creation of the property will attempt to exploit this incertitude to influence the outcome of the inchoate propertization. Thus, unlike ownership of conventional, tangible properties (e.g., land or chattel), the successful (or, equally, unsuccessful) privatization of agricultural genetic sequences is dependent upon the process of creating the property, itself. Employing grounded theory methodologies, this dissertation analyzes five case studies to develop a unique model describing the uncertain process of creating property from agricultural genetics and facilitate explaining why certain propertization attempts are successful while others are not