Tanzanian Farmers Face 12 Years In Prison For Selling Seeds As They've Done For Generations

from the why-not-adopt-big-ag's-patented-approach-instead? dept

Seeds might not seem to have much to do with digital technology, but the DNA that lies at their heart is in fact digital information, and thus many of the issues that concern Techdirt also apply here. One of the key battlegrounds for seeds and their ownership is Africa, as we discussed back in 2013. The Belgian site Mondiaal Nieuws has an update on what's happening in one of the poorest African countries, Tanzania. Things aren't looking good there following a change in the relevant law:

"If you buy seeds from Syngenta or Monsanto under the new legislation, they will retain the intellectual property rights. If you save seeds from your first harvest, you can use them only on your own piece of land for non-commercial purposes. You're not allowed to share them with your neighbors or with your sister-in-law in a different village, and you cannot sell them for sure. But that's the entire foundation of the seed system in Africa", says Michael Farrelly [from an organic farming movement in Tanzania].

Under the new law, Tanzanian farmers risk a prison sentence of at least 12 years or a fine of over €205,300 [about $213,000], or both, if they sell seeds that are not certified.

"That's an amount that a Tanzanian farmer cannot even start to imagine. The average wage is still less than 2 US dollars a day", says Janet Maro, head of Sustainable Agriculture Tanzania (SAT).

The article indicates that "certified" in this context means patented. That's obviously a problem for small-scale farmers, since they would be unable to afford to go through the patenting process, even if that were even a realistic option. For multinationals like Syngenta or Monsanto, by contrast, patenting is as natural as breathing, and so the new system will strengthen their hand considerably.

"As a result, the farmers' seed system will collapse, because they can't sell their own seeds", according to Janet Maro. "Multinationals will provide our country with seeds and all the farmers will have to buy them from them. That means that we will lose biodiversity, because it is impossible for them to investigate and patent all the seeds we need. We're going to end up with fewer types of seeds."

Here's why this is all happening:

Tanzania applied the legislation concerning intellectual property rights on seeds as a condition for receiving development assistance through the New Alliance for Food Security and Nutrition (NAFSN). The NAFSN was launched in 2012 by the G8 with the goal to help 50 million people out of poverty and hunger in the ten African partner countries through a public-private partnership. The initiative receives the support of the EU, the US, the UK, the World Bank and the Bill & Melinda Gates Foundation.

What's particularly regrettable here is not just the loss of biodiversity, and the fact that African farmers will be beholden to Western corporations, but that the NAFSN program will achieve the opposite of its stated aims, and end up taking away what little independence Tanzanian farmers enjoyed under the traditional seed system. No wonder, then, that last year Members of the European Parliament called for the NAFSN to "radically alter its mission". Judging by what's happening in Tanzania, there's no sign of that happening.

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Filed Under: farming, jail, patents, seeds, tanzania
Companies: monsanto, syngenta

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

from the literally-above-the-law dept

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

Europe Continues To Allow Vegetable Patent Despite Being Told To Stop

from the patently-crazy dept

Two years ago, we wrote about how the European Patent Organization had granted a patent on broccoli. The patent was originally on the breeding method, but then it was ruled that the breeding methods were not covered by the patents, leaving just the basic broccoli as patented. Both the European Parliament and the German Parliament have said that the EPO should stop granting vegetable patents, but apparently it hasn't stopped. It's now issued a patent on a kind of pepper. While the new peppers are supposedly "resistant to insects," people are pointing out that it was derived from conventional breeding -- and that's what was rejected in the broccoli case. What's amazing, by the way, is that this pepper patent appears to have gone to Syngenta, which I believe was one of the companies that fought against the broccoli patent.

As for the European Patent Organization, it says that it's still waiting to hear about the final decision on the broccoli patent (and a tomato one) from the Enlarged Board of Appeal (I don't want to know...), and that while it finds the European Parliament's request to stop issuing such patents interesting, the European Parliament has no mandate over the European Patent Organization, so they don't really care that much. In the meantime, careful what you eat in your salad.

Filed Under: broccoli, epo, europe, european patent organization, patents, peppers, vegetables
Companies: syngenta

How Big Agribusiness Is Heading Off The Threat From Seed Generics -- And Failing To Keep The Patent Bargain

from the bad-taste-in-the-mouth dept

Recently we wrote about how pharmaceutical companies use "evergreening" to extend their control over drugs as the patents expire. But this is also an issue for the world of agribusiness: a number of key patents, particularly for traits of genetically-engineered (GE) organisms, will be entering the public domain soon, and leading companies like Bayer, BASF, Dow, DuPont, Monsanto and Syngenta are naturally coming up with their own "evergreening" methods.

A new report from the ETC Group, which describes itself as working "to address the socioeconomic and ecological issues surrounding new technologies that could have an impact on the world's poorest and most vulnerable people", offers an interesting view of how the big agribusiness companies are trying to do that (pdf).

Making its position quite clear, ETC calls the approach "philanthrogopoly" -- a "charity" cartel that is designed to assuage fears that they represent an anticompetitive oligopoly, while simultaneously ensuring that real control remains with the agribusiness companies even after key patents have expired:

The Gene Giants know their market dominance looks conspicuously like an anticompetitive oligopoly, so they’re launching a series of initiatives -- including the false promise of cheap, post-patent GE seeds -- to mollify antitrust regulators and soften opposition to transgenics while advancing their collective market control.

Here's the problem that "philanthrogopoly" claims to address:

The looming crisis, according to the Gene Giants, is that when patents on biotech traits expire, the breeders who want to use these generic traits must have biosafety approval from the government authorities where they plan to export the GE commodity or cultivate the GE seeds. If biosafety authorizations are not kept up-to-date -- even for tiny traces of expired traits -- entire barges of transgenic beans, containers of biotech cotton or maize risk being rejected in Rotterdam, Dalian, or Yokohama. For US and other farmers who depend on exports of GE commodity crops, the presence of unauthorized generic traits could be devastating, according to industry. For example, one quarter of all US soybeans are exported to China, and 95% of those beans are genetically engineered. An estimated 93% of GE soybeans in the United States contain a Monsanto trait that goes off-patent in 2014.

The complexity, however, is not just the biosafety review process; it's also the fact that re-registration requires legal access to the proprietary safety testing data initially submitted by one of the Gene Giants to government regulators. (For the Gene Giants, safety data are considered "confidential business information" and a protected trade secret -- it's not something they're accustomed to sharing, especially with competitors.) Without access to the proprietary information, the cost of bringing generic biotech crops to market would be prohibitive.

So what do the top players here propose in order to address this issue? They have come up with what they call, rather dramatically, "the Accord", which includes an option for patent holders to continue to oversee biosafety approval for their GE seeds, either alone, or working with other companies. As ETC points out, this is likely to lead to even closer cooperation among the leading agribusiness giants, which already have extensive cross-licensing agreements with each other.

One thing that the Accord will not lead to is a flood of low-cost seeds produced by generics companies, as has already happened in the world of pharma, with huge knock-on benefits for the world's poor. For that to happen, the key safety testing data held by the agribusiness giants would need to be available. And despite the reasonableness of requiring companies to do that -- after all, if they want people to eat their products, they should be prepared to release the scientific evidence it is safe to do so -- that's not likely to happen unless they are forced to by governments.

Another factor making it extremely unlikely that we will see many seed generics is the dense web of patents that now envelope GE varieties, as ETC explains:

In the words of Randy Schlatter, DuPont Pioneer's senior manager of intellectual property: "What growers may not realize is that even though the trait patent expires, there are a host of other intellectual property patents on those varieties that are just as strong." In an interview with DTN/Progressive Farmer, Schlatter observed: "If there is a [first generation genetically engineered] soybean in the market today that is truly generic and not protected by a patent of some sort, I've not been able to find it." DuPont Pioneer, the world's second biggest seed company, has more than 225 patents covering its portfolio of soybean seeds -- not just on transgenic traits -- but on breeding technologies, germplasm and conventional ("native") traits. Even if a single transgenic trait goes off patent, the maize or soybean variety that contains the trait is likely the subject of a complex web of intellectual property. The two dozen patents on biotech seed traits that will expire over the next decade are dwarfed by the thousands of existing patents on traits, seeds and varieties

This is similar to some of the approaches to evergreening in the pharma industry -- adding extra, patented features to older technologies as the latter enter the public domain. The net result is the same for both drugs and crops: the patent "bargain" with society, that a time-limited, government-backed monopoly is granted in return for allowing anyone to use the invention freely at the end of the patent term, is not being kept fully. Once more, the public is shortchanged.

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Filed Under: agribusiness, generics, patents, seeds
Companies: basf, bayer, dow, dupont, monsanto, syngenta