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 Monsantos 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 Monsantos 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.
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.
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 Monsantos seeds (see Schmeiser's Battle for the Seed, SiS 19).
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 (https://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 freedoms.
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.
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.
Article first published 17/02/16
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