From the Editors
Beginning of the End for Patents on GM Crops?
Patent revoked on ubiquitous gene promoter
Monsanto has just lost four patents on GM
crops in less than five months, thanks to the challenge mounted by the Public
Patent Foundation. The patents were all on gene sequences involving the cauliflower
mosaic virus (CaMV) promoter, which is crucial for getting engineered genes
to work. It is in practically all of Monsanto’s GM crops grown commercially.
The US patent office ruled that the patents should
not have been granted, because the claims were not new, or were so obvious
that patents were unwarranted. This could be the beginning of the end for
GM crop patents, if not GM crops, and is likely to undermine Monsanto’s notorious
court cases against farmers whom they accuse of patent infringement by replanting
seeds from GM crops.
For as long as we have records, farmers have saved seeds
from one harvest for sowing the next crop. Indeed, it was only when people
first realised this could be done that what we call agriculture began. How
important it is can be judged from the many myths about deities being killed
and reincarnated. Our ancestors must have perceived magic in the way a plant
can be cut down and buried in the soil, only to rise again next spring.
How breeders’ rights were undermined by hybrids
Because saving seeds is so important and so well established in the farming
tradition, new crop varieties are protected not by patents but by a special
form of intellectual property rights known as breeders’ rights. Someone who
develops a new variety can charge a royalty on sales of the seeds and can
prevent anyone else from marketing them, but they cannot stop farmers saving
them for their own use, because they have breeders’ rights.
Seed companies often avoid
this restriction by selling only hybrid varieties. These do not breed true,
i.e. many of the offspring will not have the same characteristics. To grow the same crop next year, the farmer
must buy new seeds from the companies.
It is often claimed that
hybrid varieties are preferred because they are inherently superior; they
possess “hybrid vigour”, and are
higher yielding. But at least two organic farmers we met in recent years,
one in France, the other in Zambia prefer growing open-pollinated indigenous maize varieties
as they are getting yields above those from commercial hybrid maize. Many scientists, including the well-known geneticist Richard
Lewontin, argue that had the same amount of effort been devoted to improving
open-pollinated varieties of maize as was concentrated on hybrids, the same
gains could have been made, even in industrial agriculture.
The real motivation for breeding
hybrid varieties was simply that they are more profitable for the
producer. The costly and failed attempts in the 1980s to produce hybrid wheat,
which is difficult to do because the flowers contain both male and female
organs, strongly suggest that this view is correct.
GM crop patents a new departure
Another way of preventing farmers from saving seeds is to use genetic
modification. The plants breed true (or at least they are supposed to), but
according to the current interpretation of the law, varieties that are produced
in this way can be patented. The producer can therefore make it a condition
of sale that no seeds will be saved for the following year.
Monsanto has been in the forefront of imposing and enforcing this condition.
They have brought suits against dozens of farmers whom they accuse of saving
seeds (see Monsanto
versus Farmers, SiS 26), and also, in the most infamous case, against
Canadian farmer Percy Schmeiser whose crops had been contaminated by Monsanto’s
seeds (see Schmeiser's Battle for the Seed, SiS 19).
A challenge to patenting
It is not uncommon for large companies to abuse the patent system to further
their own interests at the expense of the public or smaller competitors. Not
only have they the resources to engage in long battles in the courts, whatever
the actual merits of their case, they can also take advantage of the fact
that patent offices may not have the resources or even the inclination to
do all the work required to determine whether a something is really patentable
in the first place.
There have been fierce opposition
to GM crop and related biotech patents on ground that they were discoveries,
not inventions; they violate farmers’ rights and threaten food security.
ISIS was among the first to call for these patents
to be banned in a World Scientists’ Statement presented
in 1999 (http://www.i-sis.org.uk/list.php)
In 2003, a small group of Americans with expertise in
industry, patents and the law founded a non-profit organisation called the
Public Patent Foundation (PubPat) to challenge companies that try to exploit
weaknesses in the patent system. They hold that the present system allows
companies to make things more expensive than they should be, prevents scientists from advancing technology,
unfairly prejudices small businesses, and restrains civil liberties and individual
PubPat has had a number
of successes in different fields, and last year they took up the patents that
Monsanto holds on its Roundup Ready seeds. They requested the US Patent Office
to review four patents that had been granted between 1988 and 1994 and which
were cited in the suits brought against farmers. They won their case, the patents were now rejected by the
US Patent Office.
Beginning of the end
Welcome though the decisions
are, they do not mean that Roundup Ready seeds are now covered only by breeders’
rights. This is because each GM variety is covered by multiple patents, up
to 80 or more in some cases. But it could be argued that patents involving
a ubiquitous promoter of engineered genes are so important that they should
invalidate patents on the seed varieties.
The decisions do indicate
a significant change in the attitude to patents in genetic engineering. The
patents involved were all awarded more than a decade ago, and the previous work now cited as the reason for rejecting
them was already known at the time. What has changed is the attitude of the
US Patent Office, especially its ability and willingness to
consider in detail the highly technical submissions that Monsanto, and subsequently PubPat made to it, and to search
the literature, including previous patents, to discover what
was already known.
Patent applications that
would have been approved without question ten or fifteen years ago may now
fail, especially if PubPat continues to find experts to challenge them.
What is more, if enough patents that cover a variety
are rejected, a court might decide that those that remain are not sufficient
to keep the variety under patent law, and breeders’ rights should apply instead.
If the key techniques and knowledge used to produce a new variety by genetic
engineering are just as well known and straightforward as those used to produce
one conventionally, as is quite possibly the case, then there is no justification
for giving the GM variety special status.
If farmers are
allowed to save the seeds from GM crops, then the major incentive for developing
them will disappear. Scientists will concentrate on finding effective and
sustainable ways of improving agriculture, rather than restricting their attention
to those methods that lead to patents and profits for the biotech industry,
rather than real benefits for farmers and consumers.