Florida Governor Signs One Bill Protecting Free Speech... And Another That Undermines It

Monsanto And Syngenta About To Receive Dozens Of Patents On Unpatentable Plants

from the literally-above-the-law dept

Fri, May 22nd 2015 3:16pm — Glyn Moody

Last month we wrote about the strange case of unpatentable plants becoming patentable in Europe thanks to a decision from the European Patent Office's Enlarged Board of Appeal. That cleared the way for companies to obtain such patents, and according to this post on the "no patents on seeds" site -- I think you can probably work out where its biases lie -- that's about to happen:

the European Patent Office (EPO) is about to grant 30 patents on plants derived from conventional breeding to Monsanto and its affiliated companies. The Swiss company Syngenta can expect to receive around a dozen patents very soon. Many of the patents claim vegetables such as tomatoes, peppers, cauliflower, carrots and lettuce.

Leaving aside the important question of whether it should be possible to obtain patents on plants, there are some other issues. For example, Monsanto is currently trying to acquire Syngenta. Although its initial offer of $45 billion was turned down, the view seems to be that Monsanto will go higher because it needs Syngenta's broad portfolio of products to address the growing concerns over glyphosate, which lies at the heart of much of its range. According to a recent report, Monsanto is willing to divest itself of all of Syngenta's "seeds and genetic traits businesses as well as some overlapping chemistry assets to win regulatory approval", but it's not clear whether that would include patents on plants. If it didn't, all of the imminent plant patents mentioned above might end up with Monsanto, which would represent a dangerous concentration of power in this important new area.

The more serious problem concerns the EPO. The decision to extend patentability to plants was taken by the EPO's Enlarged Board of Appeal, which should raise conflict of interest concerns, since the EPO is funded by patent fees. That wouldn't be a serious problem if there were a higher court to which appeals could be made. But as the EPO told Intellectual Property Watch:

Decisions made by the Enlarged Board of Appeal cannot be challenged before another judiciary.

One body that does have the power to revise EPO decisions is the Administrative Council of the EPO, but it is made up largely of senior patent officials from the 40 or so member states of the EPO, and so it is naturally pro-patent and thus unlikely to interfere with extensions to patentability. In fact, there is no democratically-elected body at all that could force the EPO to change its policy on anything. Worse, the EPO is literally above national laws, since its offices enjoy diplomatic immunity of the kind given to embassies. As Wikipedia explains it: The premises of the European Patent Office enjoy a form of extraterritoriality. In accordance with the Protocol on Privileges and Immunities, which forms an integral part of the European Patent Convention under Article 164(1) EPC, the premises of the European Patent Organisation, and therefore those of the European Patent Office, are inviolable. The authorities of the States in which the Organisation has its premises are not authorized to enter those premises, except with the consent of the President of the European Patent Office.
While that's the case -- and there's very little prospect of it changing in the short-term -- extensions of patentability to non-patentable matter are not just likely to happen, but will be well-nigh impossible to reverse.

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Filed Under: eu, patents, plants
Companies: monsanto, syngenta

19 Comments

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Anonymous Coward, 22 May 2015 @ 3:45pm

Mongenta
Don't worry about that one. As you mentioned it hasn't happened yet and what I heard from Syngenta managers it isnt likely to happen. Unless Monsanto is willing to offer way more than it currently does then no deal will take place. At lesat that is my interpretation of what various managers of Syngenta (Swiss, Basel) told me. I'm not an employee of Syngenta so take it however you like, my interpretation might be false.
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Neghvar (profile), 22 May 2015 @ 3:49pm

total immunity?
Based on the description of the EPO and its overseers, it sounds like they could commit acts of genocide and not be touched
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- Atkray (profile), 22 May 2015 @ 8:13pm
  
  Re: total immunity?
  "it sounds like they could commit acts of genocide"
  
  Granting patents on vegetables may well prove to be just that.
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- Anonymous Coward, 23 May 2015 @ 3:05pm
  
  Re: total immunity?
  I would think that EU institutions as well as local judiciaries would strongly disagree with this sort of blanket immunity.
  
  After all, it's only worth something if the local powers enforce it and that largely depends on quid-pro-quo from the locals. Unlike a nation state, an independent body does have much to offer in return for immunity....
  
  Besides, I'm quite sure that buried somewhere in EU law is oversight of EPO by EU institutions....
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- Anonymous Coward, 24 May 2015 @ 12:23am
  
  Re: total immunity?
  Unlike in the US, European people can suddenly appear on their doorsteps and give them a little scare which usally is enough to make them reconsider their bullshits.
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- Donnicton, 26 May 2015 @ 5:13am
  
  Re: total immunity?
  Based on the description of the EPO and its overseers, it sounds like they could commit acts of genocide and not be touched
  
  And Monsanto could sure teach them a thing or two on that, couldn't they?
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Anonymous Coward, 22 May 2015 @ 4:58pm

Abolish Patents
It's the only way.
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- Atkray (profile), 22 May 2015 @ 8:15pm
  
  Re: Abolish Patents
  The only bright side I see in this is that it may accelerate the move to do just that. Especially seeing as how Monsanto is so universally loved.
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  - Anonymous Coward, 23 May 2015 @ 5:51am
    
    Re: Re: Abolish Patents
    Given that the possibility of of IP laws being gradually dismantled is absolute zero, I find myself encouraged by every egregious step in the wrong direction, as that seems to be leading us closer to the inevitable implosion of the system. Unfortunately, the world economy will implode with it, and there will be much pain during the rebirth.
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got_runs? (profile), 23 May 2015 @ 10:22am

Green with round corners.
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cybernia (profile), 23 May 2015 @ 1:06pm

I don't see what the problem is. Plant patents have around since the 1930s. What I would assume they are doing is patenting hybrid plants, not all common vegetables.

And the law covers ALL plant breeders.

Anyway, plant patents only last 20 years.
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- That One Guy (profile), 23 May 2015 @ 9:25pm
  
  'Evergreening' was never a more apt name
  Until they make some insignificant little 'tweak' to it and renew it for another 20 years. Again, and again, and again...
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Anonymous Coward, 23 May 2015 @ 6:02pm

It's not nice to patent Mother nature.
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Lena israelsson, 23 May 2015 @ 11:11pm

Epo
I have tried to find info on the Website of EPO about the plans to grant Monsanto patents to 30 vegetables, non hybrid varieties. Do yoy know ehere they hav hidden this information?
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- Glyn Moody, 24 May 2015 @ 2:04am
  
  Re: Epo
  There are many Monsanto patents here:
  
  https://register.epo.org/smartSearch?searchMode=smart&query=monsanto
  
  I don't which are the ones in question, I'm afraid.
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cybernia (profile), 24 May 2015 @ 9:50am

That's not the way it works. By the end of that twenty years they will have already moved on to something new. And even if they did make a tweak, that would constitute something new and that old version would go off patent and the new one would be under new patent.
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- nasch (profile), 26 May 2015 @ 1:25pm
  
  Re:
  By the end of that twenty years they will have already moved on to something new.
  
  Absolutely wrong. If they can continue to milk a cash cow, they will do so, even if they also have newer products.
  
  And even if they did make a tweak, that would constitute something new and that old version would go off patent and the new one would be under new patent.
  
  There are various ways in which the effective duration of a patent can be extended.
  
  https://en.wikipedia.org/wiki/Evergreening
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cybernia (profile), 26 May 2015 @ 1:46pm

Maybe, but that's not the way it works. Look at Roundup, their herbicide. It's been off patent since 2000 and they didn't tweak it.

They don't make much money on old versions of seeds and farmers don't necessarily want tweaked versions of 20 year old seeds. Considering the cost to bring a seed to market, it doesn't make financial sense to tweak older versions.

And I believe the first generation of RR soybeans are about to go off patent. You won't see them evergreening them.
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- nasch (profile), 26 May 2015 @ 2:12pm
  
  Re:
  I'm not saying they evergreen every patent, I'm saying 1) it's an option that they will take advantage of when it makes sense financially and 2) they won't abandon a product just because it's been around for a while. You'll notice you can still go to the store and buy name-brand Roundup. They are still milking it even though it's off patent. I have no problem with that of course. It's the patent evergreening that's a problem.
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