US Farmers Sue Monsanto Over GMO Patents, Demand Right To Conventional Crops

Intellectual Property Watch
30 March 2011

By Catherine Saez
The Public Patent Foundation filed suit yesterday against Monsanto”™s patents on genetically modified seeds with farmers asking to be protected against the biotechnology giant”™s potential lawsuits in case of accidental contamination from plants grown with its seeds.
On behalf of 22 agricultural organisations, 12 seed businesses and 26 farms and farmers, the Public Patent Foundation (PUBPAT) is suing the biotech company in the federal district court in Manhattan and assigned to Judge Naomi Buchwald.

The organic plaintiffs had to pre-emptively to protect themselves from potential patent infringement in case of accidental contamination of their crops by genetically modified organisms (GMOs), said PUBPAT.

“œThis case asks whether Monsanto has the right to sue organic farmers for patent infringement if Monsanto”™s transgenic seed should land on their property,” said Dan Ravicher, PUBPAT”™s executive director and a law professor at Benjamin N. Cardozo School of Law in New York. PUBPAT is a non-profit legal services organisation based at Cardozo law school. Its stated mission is “œto protect freedom in the patent system.”

“œIt seems quite perverse that an organic farmer contaminated by transgenic seed could be accused of patent infringement, but Monsanto has made such accusations before and is notorious for having sued hundreds of farmers for patent infringement, so we had to act to protect the interests of our clients,” he said in a press release.

According to the lawsuit, “œcoexistence between transgenic seed and organic seed is impossible because transgenic seed contaminates and eventually overcomes organic seeds.”

“œHistory has already shown this, as soon after transgenic seed for canola was introduced, organic canola became virtually extinct as a result of transgenic seed contamination. Organic corn, soybean, cotton, sugar beet and alfalfa now face the same fate, as transgenic seed has been released for each of those crops,” it reads.

In a published commitment on farmers and patents, Monsanto states in Article 10 that, “œWe do not exercise our patent rights where trace amounts of our patented seeds or traits are present in a farmer”™s fields as a result of inadvertent means.”

The plaintiffs are largely organic farmers and organic seed businesses, but also include non-organic farmers who nevertheless wish to farm without transgenic seed, the lawsuit [pdf] says.

Through the action, plaintiffs are asking that farmers whose crops are ever contaminated by Monsanto”™s transgenic seed should not be sued for patent infringement.

The plaintiffs also claim that “œin addition to the economic harm caused by transgenic seed, it also has potentially severe negative health effects. For one, the design of Monsanto”™s transgenic seed is purely so that it will be resistant to the herbicide glyphosate. This means that as Monsanto”™s transgenic seed becomes more widely used, then so too will glyphosate.”

They said many countries, such as the European Union members, required clear labelling of transgenic food or ingredients, but that “œMonsanto has fought vigorously to defeat any proposal for labelling of transgenic food in the United States.”

Monsanto began applying for patents on glyphosate tolerance in the mid-1980s, say the plaintiffs, the first patents on the trait were granted in 1990 and are now expired. The plaintiffs claim that Monsanto continued to seek and receive patents on Roundup Ready technology for over two decades. They find that “œMonsanto unjustly extended its period of patent exclusivity by duplicating its ownership of a field of invention already covered by other Monsanto patents. Monsanto”™s transgenic seed patents are thus invalid for violating the prohibition against double patenting.”

According to the PUBPAT release, many of the plaintiffs made statements upon filing of the suit. For example, Jim Gerritsen, a family farmer in Maine who raises organic seed and president of lead plaintiff Organic Seed Growers and Trade Association based in Montrose, Colorado, said: “œToday is Independence Day for America. Today we are seeking protection from the Court and putting Monsanto on notice. Monsanto”™s threats and abuse of family farmers stops here. Monsanto”™s genetic contamination of organic seed and organic crops ends now. Americans have the right to choice in the marketplace ” to decide what kind of food they will feed their families.”

Ed Maltby, executive director of plaintiff Northeast Organic Dairy Producers Alliance (NODPA) said, “œIt”™s outrageous that we find ourselves in a situation where the financial burden of GE [genetically engineered] contamination will fall on family farmers who have not asked for or contributed to the growth of GE crops.”

David Murphy, founder and executive director of plaintiff Food Democracy Now said, “œNone of Monsanto”™s original promises regarding genetically modified seeds have come true after 15 years of wide adoption by commodity farmers. Rather than increased yields or less chemical usage, farmers are facing more crop diseases, an onslaught of herbicide-resistant superweeds, and increased costs from additional herbicide application.”

“œCrop biotechnology has been a miserable failure economically and biologically and now threatens to undermine the basic freedoms that farmers and consumers have enjoyed in our constitutional democracy,” Murphy said.

 
FAO Seed Treaty Carries Hope, Addressing Country Contributions, Farmers Concerns

Intellectual Property Watch
30 March 2011

By Catherine Saez @ 6:40 pm
Funding mechanisms and farmers”™ rights were among the issues that captured the attention of member countries of the International Treaty on Plant Genetic Resources for Food and Agriculture during the biannual meeting of its Governing Body.
The fourth session of the Governing Body of the treaty took place in Bali, Indonesia, from 14-18 March.

The United Nations Food and Agriculture Organization”™s International Treaty on Plant Genetic Resources for Food and Agriculture, based in Rome, seeks to establish a global system to provide treaty users access to global plant genetic materials, with a system of benefit sharing to remunerate countries from which those materials originate if commercial benefits are accrued. It also means to help alleviate hunger and climate change effects.

Among outcomes of the meeting was the adoption of a resolution on farmers”™ rights; completion of the information technology infrastructure of the treaty; and completion of the dispute resolution procedure for standard material transfer agreements (SMTAs). Also, the Governing Body adopted a customised mediation procedure, and approved a resolution on the funding strategy for the treaty, dedicating more than US$10 million to the second round of projects of the benefit-sharing fund.

Winds of Discontent Blowing on Farmers”™ Rights

One of the main new developments at the governing body meeting was “œa mounting interest and pressure on farmers”™ rights under the Treaty,” Shakeel Bhatti, secretary of the treaty, told Intellectual Property Watch after the meeting. There is an increasing interest of countries and civil society organisations in Article 9 of the treaty, “œwhich recognises the farmers”™ rights, subject to national laws and policies,” he said.

During the meeting, farmers organisations were vocal in their concerns about farmers”™ rights. La Via Campesina, an international peasants”™ organisation representing about 200 million farmers, said in a 16 March release, that there was a denial of famers”™ rights in many countries. “œNothing suggests” that industry will pay for benefit-sharing, they said, adding that most governments were implementing the rights of breeders in “œdenial of farmers”™ rights.”

Farmers”™ rights include the ability to use, sell and exchange seeds and this ability is not widespread, according to farmers. “œHere in Indonesia, farmers have been thrown in jail for re-sowing part of their own harvest,” they said. IP rights on seeds are preventing the further use, sale and exchange of seeds. “œThe replacement of local seed for hybrids or GMOs [genetically modified organisms] that farmers cannot replant also infringe upon farmers”™ rights,” they said.

La Via Campesina also said that they supported “œthe position of the African group that believed that the lack of funding of the treaty or the implementation of farmers”™ rights must be regarded as cases of non-compliance.”

“œThe treaty adopted a resolution on farmers”™ rights which requests the secretary to convene regional workshops on farmers”™ rights, compile experiences and best practices received from contracting parties on the implementation of farmers”™ rights, and to seek assistance from appropriate sources in the provision of financial and technical support to national governments for the realisation of farmers”™ rights,” Bhatti said.

Article 9 of the treaty has three sections. The first section recognises the contribution of farmers and local and indigenous communities to crop diversity and conservation. The second section agrees that the “œresponsibility for realising farmers”™ rights rests with national governments.” It adds that “œin accordance with their needs and priorities, each contracting party, should, as appropriate, subject to its national legislation, take measures to protect and promote Farmers”™ Rights.” Those rights include the protection of traditional knowledge, the right to equitably participate in benefit sharing, and the right to participate in decision making at national level.

The third section of Article 9 says that “œNothing in this Article shall be interpreted to limit any rights that farmers have to save, use, exchange and sell farm-saved seed/propagating material, subject to national law and as appropriate.”

In a closing statement on behalf of civil society, La Via Campesina said that the main purpose of the treaty is “œto promote the conservation and sustainable use” of plant genetic resources, and that the treaty “œcommits to support farmers as primary beneficiaries of the treaty.” They demanded support and protection, and in particular, the realisation of their “œinalienable farmers”™ rights to save, use, exchange and sell our seeds and protect our knowledge.”

The farmers group warned against “œmonopoly privileges for industrial plant breeders.” They also called on the governing body to follow the advice of the UN Special Rapporteur on the Right to Food to shift away from “œinput-intensive conventional farming towards agroecology” (IPW, United Nations, 9 March 2011).

The Governing Body adopted a resolution on farmers”™ rights to be published shortly, they said.

Other Meeting Outcomes

According to Bhatti, among the results of the Governing Body meeting is the completion of the access and benefit sharing systems of the treaty, and in particular the completion of the information technology infrastructure that will be the operational backbone of the global gene pool, which now includes more than 1.5 million samples of genetic material. The mainframe of the infrastructure is hosted in Geneva at the United Nations Information and Computing Centre. The system will store all reported standard material transfer agreements (SMTAs) and is under high security, he told Intellectual Property Watch.

The dispute resolution procedure for SMTAs was also completed, Bhatti said, and in particular on intellectual property aspects and benefit sharing. The Governing Body adopted a customised mediation procedure with arbitration carried out, in the last instance, by the International Chamber of Commerce.

The Governing Body also reviewed the mandate of the Ad Hoc Advisory Technical Committee on the SMTA and the Multilateral System. This committee is in charge of addressing a range of legal and technical aspects of the access and benefit sharing operations under the multilateral system, including aspects on intellectual property. For example, the committee would address the interpretation of which material would be considered to be in the system by default, so in the public domain, and under the control of contracting parties.

By ratifying the treaty, member countries decide to exercise their sovereign rights over their crop genetic resources through the Multilateral System of Access and Benefit-sharing, Bhatti told Intellectual Property Watch. Under the treaty, the multilateral system includes by default all genetic material listed in Annex I of the treaty and which are in the public domain and under the direct management and control of the contracting parties.

“œAdditionally, contracting parties and natural and legal persons within their jurisdictions may include further agricultural plant genetic material, if they so wish, and multiple countries have already done so, such as, for example, the Nordic Genebank (Denmark, Finland, Iceland, Norway and Sweden) and the Dutch Centre for Genetic Resources (CGN),” Bhatti said.

Countries Slow To Share Resources

According to some sources, only a minor portion of the parties have notified which collections would be placed in the multilateral system and provided the necessary documentation to facilitate access. The vast majority of the genetic material is coming from previous collections of the Consultative Group on International Agricultural Research (CGIAR), they said.

According to Bhatti, countries that have included material so far include Brazil, Canada, Czech Republic, Denmark, Estonia, Finland, Germany, Iceland, Jordan, Lebanon, Madagascar, Malawi, Namibia, the Netherlands, Norway, Portugal, Romania, Spain, Sudan, Switzerland, the United Kingdom, and Zambia. The treaty now has 127 contracting parties, according to a press release. An increasing number of countries are sharing their collections into the treaty system, Bhatti said.

Assessing collections, often spread out throughout the territory, can be a long process, a source said. Some countries might want to evaluate how the system is working, including the benefit-sharing mechanism, before they include additional material in the system. Another source said those countries might not have yet established the legal system needed to share their resources, but the “œcynical answer,” he said, might be “œthat they want to get material from others but not grant others access to their own.”

For the moment, “œthe genepool which the multilateral system of the treaty creates is a virtual, legally constructed and physically distributed pool of genetic material,” Bhatti said. “œIt is not located in a single physical genebank, but covers hundreds of collections of genetic resources throughout the word.”

At present, “œmost of the known and documented material within the genepool is located in the international collections of the CGIAR,” he said. “œThe treaty secretariat is partnering with the Global Crop Diversity Trust, and Biodiversity International to create a global accession-level information system, named “˜GeneSys,”™ which will contain description of material in the multilateral system with funding from the Gates Foundation.”

Funding: the Treaty”™s Achilles Heel

Financial contributions to the treaty”™s benefit-sharing fund have been a worry since the coming into force of the treaty in June 2004, with for the moment financial contributions only coming from governments and not through the benefit-sharing mechanism. Indonesia announced the first developing country contribution to the benefit sharing fund, with a US$100,000 contribution, and called other countries to follow suit, according to a release.

Countries financially contributing to the treaty fund are Australia, Canada, Indonesia, Ireland, Italy, Norway, Spain, and Switzerland. International organisations also have committed resources to the fund, Bhatti told Intellectual Property Watch. The fund is now funding projects in 11 developing countries.

The International Seed Federation (ISF), representing the seed industry associations at the international level, which told Intellectual Property Watch it has attended every meeting concerning the treaty during its negotiation and after its adoption, said it welcomed the resolution of the Governing Body in Bali on compliance procedures and “œhoped it would lead to a greater implementation of the treaty by its contracting parties,” Anke van den Hurk, the ISF representative at the Governing Body said that “œeven with the use of molecular techniques, breeding a new variety could take an average of 8-12 years.”

She also said that “œmany new varieties were protected using plant breeders rights which allowed them to be used by others without restriction for further research and breeding.” This is an important form of benefit sharing recognised by the treaty, she said.

Nonetheless, the industry is “œlooking at innovative approaches to implement the treaty, including the most effective involvement in enhancing the benefit sharing fund projects,” she said.

La Via Campesina said in its closing remarks that “œthe financial mechanisms and funding strategies under the treaty must not be attached to patents and plant breeders”™ rights,” and said the benefit-sharing mechanism had loopholes exempting industrial plant breeders from paying, while only delivering varieties protected” by IP rights.

Related Articles:
“¢International Seed Treaty Hears Concerns Of Corporate Concentration, DNA Patenting
“¢New Draft Biodiversity Treaty Text Shows Much Work Remains; Co-Chairs Hopeful
“¢Biodiversity Benefit-Sharing Treaty Negotiators Tackle New Text As Clock Ticks
Catherine Saez may be reached at csaez@ip-watch.ch.

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