Interest groups turn Supreme Court case into ‘save the seeds’ myth

The Bowman vs Monsanto Supreme Court hearing is big news in the United States and we are seeing ripple effects of it up here in Canada.  Although some headlines sparked by interest groups that oppose modern agricultural production methods, including use of genetically modified (GM) crops, might suggest otherwise, this case is not about farm-saved seed.  This case is an attempt to make an exception in well-established patent law for products of agricultural biotechnology, thereby granting the purchaser of GM seeds the right to copies of that innovative technology.

soybean field

Biotech soybean field in the United States. (USDA-ARS)

Bowman (the plaintiff and an Indiana farmer) and the Center for Food Safety (CFS) and Save Our Seeds (SOS) want the Supreme Court to reverse lower court decisions upholding Monsanto’s patent rights and conveyance of limited-use rights to farmers.  Such a reversal would have great applicability to other industries and would devastate innovation in biotechnology and other technologies that are based on inventions that are readily copied.  What incentive would inventors in the public and private sectors have to invest in research and development if they had virtually no protection from others copying their inventions? Bowman argues in the case of Monsanto’s patented soybeans, the company’s rights were terminated after the first sale and those rights should not extend to progeny with Monsanto’s patented technology.

So who is the real villain in this drama?  Is it Monsanto, who invested 10+ years and $100+ million in development of improved soybeans widely adopted by farmers globally because of their benefits; or is it Bowman and interest groups that have rolled this recent case into a ‘save the seeds’ campaign?  In one of her most recent articles, Debbie Barker (international director for CFS and project director for SOS) stated: “The Supreme Court ought to rule in favour of Bowman so that instead of farmers becoming modern-day serfs of agrichemical companies, they can regain traditional seed rights.” 

But Barker is out of touch with the practices of today’s farmers. In Canada alone, farmers have been using certified seed as part of their operations for over 100 years.  This is nothing new. Very few farmers, if any, breed seed these days. In his opinion piece in CNN’s Eatocracy, Indiana farmer Brian Scott states: “If we wanted to breed our own varieties I’m sure we could, but I look at it right now as division of labor. Seed companies are great at coming up with great products, and farmers are great at turning those products into a bounty of food, feed, fuel, and fiber.”

Years of public and private research costing millions and millions of dollars have gone into producing modern seeds that perform better than previous generations.  Farmers want to plant the best, locally adapted and productive package of genetics available.  Patented soybeans are grown by more than 90% of the 275,000 soybean farms in the United States.  For the record, nobody forces a farmer to agree to the terms of a seed purchase.  If a farmer wishes to forgo the advantages of a superior variety, he or she can simply use older, unrestricted crop varieties.  But as this case documents, farmers want to plant improved varieties and they want GM technology – the vast majority are willing to pay a premium for the benefits, and a few, like Bowman want it all and for free.

if there are not IPRs

Why are patents important?  Patents are a provision of exclusive rights granted to an inventor for a limited period of time.  Rhetoric might suggest that patents are ‘bad’ but they drive investment in invention and innovation in the public and private sectors.  Intellectual property rights (IPRs) exist for a reason.  If there are no property rights, there is no protection.  If there is no protection, there is no return on investment. If there is no return on investment, there is no innovation. And if that happens, we all lose.

When Bowman purchased the commodity seed from the grain elevator, he knew exactly what he was buying.  By planting those seeds, Bowman was using copies of the company’s technology for personal gain, just as if he had copied music or software and sold it for a profit; he didn’t have that right and he knew it. Reports coming out of the hearing on the 19th suggest that the Supreme Court is leaning in favour of Monsanto.  The alternative would be unthinkable. Not only would there be huge implications for modern agriculture, but for self-replicating technologies in a range of industries that rely on IPRs to protect their investments (software, vaccines, cell lines).  Without access to new and innovative crop varieties, we are hard-pressed to meet the challenges of a growing world population, shrinking arable land base, environmental issues, disease, pests and drought.

Versions of this blog have been posted in: The Winnipeg Free Press (February 23, 2013) and the Huffington Post Alberta Ag Blog (Feburary 25, 2013).  

patenting of gene sequences…

Chris Holman blogs on patent protection of gene sequences…

“…[The EU] ruling could have a substantial impact on biotechnology. Obviously, it provides an opening for growers to circumvent gene patents used to protect genetically modified crops by growing the crops in a country where the gene is not patented, such as Argentina in this case, or in a jurisdiction with weak patent enforcement, and then importing the product into a European Union member wherein the patent is in force with impunity…I personally do not think gene patents will substantially impede whole genome sequencing, in the US or elsewhere. But if I am wrong, and patents on genes pose a substantial impediment to whole genome sequencing in the US, the patents could be circumvented by exporting the process to a place like Europe. The EU court decision could substantially reduce the likelihood that whole genome sequencing in Europe will result in liability for patent infringement.”

Excerpt from the Holman blog:

Monsanto v. Cefetra: EU Court of Justice Limits Scope of Patent
Protection Available to Gene Sequences

Chris Holman

Friday, July 9, 2010

A couple of years ago I posted an article (available at: http://holmansbiotechipblog.blogspot.com/2008/05/limitations-on-scope-of-dna-… discussing the case of Monsanto v. Cefetra. Essentially, in that case a European court held that Monsanto patents claiming the gene responsible for its Roundup Ready trait were not infringed by the importation of soy meal containing the gene, because the grinding of the soybeans to make the meal rendered the DNA incapable of expressing the encoded protein, and thus unprotectable pursuant to the 1998 European Union Directive on biotechnology.

On Tuesday, July 6, that decision was affirmed by the Court of Justice of the European Union. This is the highest judicial body of the European Union, so there will be no further appeals, and this would appear to be the final word on the subject. The decision was reported in an article posted on IPKat, a respected European IP blog, available at http://ipkitten.blogspot.com/2010/07/monsanto-court-makes-meal-of-soya.html. I am no expert on European law, but here are a few thoughts on the significance of this case.

First, my interpretation of the decision.

In a nutshell, the Court of Justice held that although the so-called Biotech Directive, promulgated by the European Union in 1998, permits the patenting of naturally occurring DNA sequences, the scope of patent protection only extends to products incorporating the DNA if the DNA is capable of performing “the function for which it was patented.” Applying this criterion to the facts of the case, the Court held that the patentable function of the gene at issue was to confer glyphosate (i.e., RoundUp) resistance upon a plant, and that since the soy meal is dead and thus incapable of expressing this function, the DNA residing in the soy meal is ineligible for patent protection.

The Court went on to hold that the Biotech Directive supersedes national law, and precludes individual European nations from enacting legislation that would permit patenting of DNA sequence per se. It also held that the prohibition against patenting DNA sequences per se applies retroactively to patents predating the EU’s adoption of Directive in 1998. In short, this unappealable ruling appears to be binding upon all 27 European Union Member States, and all DNA patents, no matter when they were issued.

See full article on Holman’s blog at: http://holmansbiotechipblog.blogspot.com/2010/07/monsanto-v-cefetra-eu-court-…

Judging the Facts About Biotechnology – a producer’s perspective

Truth_about_trade_label

Judging the Facts About Biotechnology
– Reg Clause, AgWeb, June 25, 2010
http://www.agweb.com (Jefferson, IA – Board member, Truth About Trade & Technology)

In the Supreme Court’s first-ever ruling on genetically modified crops, the justices issued a resounding decision in favor of biotechnology. The Supreme Court overturned a lower court’s decision to impose a nationwide ban on GM alfalfa.

The Supreme Court is famous for its 5-4 split decisions, especially in cases that generate political controversy. The alfalfa ruling, however, was no nail-biter. The justices ruled 7-1 in favor of biotechnology.

The case marks a clear victory for American farmer choice in the matter of biotech seed. It affirms the idea that relevant government agencies and regulators set the rules that govern agriculture – and those rules must be science-based. The United States has benefited since its founding from a process of lawmaking and regulatory rules making. When this is subverted by finding friendly courts or endlessly clogging our processes with frivolous suits, nobody benefits except the very narrow interest groups who happen to oppose progress.

Technically, the ruling in Monsanto v. Geertson Seed Farms was procedural. Important legal and regulatory decisions lie ahead as the Department of Agriculture finishes an environmental assessment of GM alfalfa. Farmers like myself agree with a robust and continuous process that assures me and all Americans that our food is safe and always available.

Yet the case also sets farmers on a course that may allow them to take full advantage of what GM alfalfa has to offer and opens up the possibility for plantings to begin within a few months.

Those opposing biotechnology obviously were hoping for a different result. For them, resorting to litigation was a desperate maneuver. They’ve lost significant battles over GM crops in just about every other arena.

Farmers across the country are adopting and planting GM crops as soon as they become available because the value is there in improved productivity and quality. This spring marks the 15th year that biotech crops are being planted in the U.S. Today, the vast majority of corn, soybeans, and cotton are genetically enhanced to fight weeds and bugs. The broader public has responded favorably as well, especially when there is objective information provided. Of course the public might be against GM seed if they are told there might be a problem. That’s why I’m writing this article. I haven’t seen these problems, research scientist inside and outside the industry haven’t been able to show these problems and our regulators didn’t find these supposed problems. The American people need to know that. Let’s put some trust but verify into action on this important subject and question those who oppose important new things, “just because.”

As a farmer I do not take more risk than I can justify. My legacy is my farm and the young people I leave to farm it. When I see the decades of regulatory research into biotech seeds and the billions of acres planted over the years, I simply ask a question. When there are no negative outcomes in the environment or human health discovered after so many years, is there not a point when those fearful of biotechnology can admit there is no longer need to just fear? I want the regulatory functions to go on and get better if anything, but simply stopping progress with the courts is not a way to facilitate proper research and rules development.

Science also has come down solidly on the side of biotechnology. Research has shown that these plants pose no threat to anybody and may even enhance human health as new traits that improve nutrition become available. On the environmental front, GM crops have let farmers adopt no-till methods that fight soil erosion. Gains in yield allow farmers to produce more food on each acre of land, thereby reducing the pressure on wilderness areas.

The anti-biotech activists are applying a cynical approach to science, technology, and food production by hiring lawyers and seeking out friendly court venues. Yet these professional rabble-rousers have a lot invested in their litigious scheme. The Supreme Court’s decision probably isn’t enough to make them abandon it completely. Even if they don’t win on alfalfa, they’ll try to win on sugar beets–another important crop that they are attempting to thwart.

The good news is that the Supreme Court’s ruling will make it harder for them to succeed. My goal in farming is to improve the environment in my care and provide ever safer food for Americans and the world.

All across our land I hope for us to all come together around achievable goals like mine. If there are legitimate objections to the adoption of new farming tools such as biotech seeds, I’m waiting to hear them and would want to see such objections thoroughly handled. Right now the objections appear to come without merit attached. So sayeth our Supreme Court.

 

Kenya protests block GM maize shipment in Mombasa

BBC News
April 9, 2010
http://news.bbc.co.uk/2/hi/africa/8609316.stm

Excerpt:
A shipment of genetically modified (GM) maize has been blocked at the Kenyan port of Mombasa after protests by environmentalists. GM imports have been banned in several African countries. The 40,000-tonne shipment contained four varieties of maize, three of which were made by Monsanto.

Mariam Mayet, an activist at the South African-based African Centre for Biosafety, criticised her government’s policy. “The way it is, one is inclined to say that South Africa was a springboard to contaminate the rest of the African continent by allowing multinationals to export from South African soil,” she told South Africa’s Business Report newspaper.

Many African countries are under increasing pressure to grow GM crops to tackle hunger and malnutrition, and drought in recent years has caused food shortages in Kenya.

Glyphosate resistance confirmed

*April 4, 2010
Today’s Comment by Kevin Hursch

*”The first case of a glyphosate-resistant weed in Canada has now been confirmed. University of Guelph researchers working in conjunction with Monsanto Canada have confirmed glyphosate resistance in a population of giant ragweed in Ontario. The finding is the result of research that began in late 2008 when a resistant population was first suspected. Not only do the plants survive increased rates of glyphosate, but they also have the ability to pass the trait along to the next generation. At this point, the resistance has only been confirmed from a single field site. Other giant ragweed populations in southwestern Ontario are also being tested. Monsanto says there are a total of 17 weed species in countries around the world with confirmed resistance to glyphosate. Ten of those species are in the United States. While this is the first case in Canada, it won’t likely be the last. Other types of herbicide resistance are already firmly entrenched. A total of 30 species of weeds in Canada have developed resistance to some type of herbicide. Guarding against resistance and learning to cope with resistance will be important aspects of farm management in the years ahead.”