Big Ag Gets Ag-Gag Envy, Helps Bring In 'Seed-Preemption' Laws Across The US

from the local-democracy,-who-needs-it? dept

As multiple Techdirt stories attest, farmers do love their "ag-gag" laws, which effectively make it illegal for activists to expose animal abuse in agricultural establishments -- although, strangely, farmers don't phrase it quite like that. Big Ag -- the giant seed and agricultural chemical companies such as Monsanto, Bayer, and DuPont -- seem to have decided they want something similar for seeds. As an article in Mother Jones, originally published by Food and Environment Reporting Network, reports, it looks like they are getting it:

With little notice, more than two dozen state legislatures have passed "seed-preemption laws" designed to block counties and cities from adopting their own rules on the use of seeds, including bans on GMOs. Opponents say that there's nothing more fundamental than a seed, and that now, in many parts of the country, decisions about what can be grown have been taken out of local control and put solely in the hands of the state.

Supporters of the move claim that a system of local seed rules would be complicated to navigate. That's a fair point, but it's hard to believe Big Ag really cares about farmers that much. Some of the new laws go well beyond seeds:

Language in the Texas version of the bill preempts not only local laws that affect seeds but also local laws that deal with "cultivating plants grown from seed.” In theory, that could extend to almost anything: what kinds of manure or fertilizer can be used, or whether a county can limit irrigation during a drought, says Judith McGeary, executive director of the Farm and Ranch Freedom Alliance. Along with other activists, her organization was able to force an amendment to the Texas bill guaranteeing the right to impose local water restrictions. Still, the law's wording remains uncomfortably open to interpretation, she says.

You would have thought that farmers would welcome the ability to shape local agricultural laws according to local needs and local factors like weather, water and soil. But apparently ag-gagging activists to stop them doing the same is much more important.

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Filed Under: ag-gag, cities, farmers, local rights, seed preemption, seeds, states
Companies: bayer, dupont, monsanto

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

France Might Allow NGOs To Sell Public Domain Seeds To Non-Commercial Buyers. Might?

from the so-what's-the-problem? dept

When Techdirt has written about seeds in the past, it tended to be in the context of patents, and how Big Agribusiness is trying to use multiple layers of intellectual monopolies to prevent patented seeds from entering the public domain. By contrast, seeds that are already in the public domain -- that is, owned by no one and thus everyone -- ought to be unproblematic. But an interesting story in Intellectual Property Watch indicates that's not the case in France:

the French Senate is due to consider a bill on biodiversity for the third time. That bill, which could be modifying several legislations, might allow for the sharing and selling by non-governmental organisations of seeds in the public domain to non-commercial buyers, which is so far not permitted under the current French legislation, according to sources.

The fact that non-governmental organisations are currently not allowed to sell public domain seeds to non-commercial buyers seems curious, to say the least. The issue seems to be about governmental control, since the new law:

would allow NGOs already sharing and selling seeds to individual gardeners, which are not on the French National official seeds catalogue, to legalise their activities, and escape prosecution, according to a press release [pdf] (in French) from Kokopelli, one of those associations.

That's a reminder of how controlling seeds was a key government power back in the days when agriculture represented a far greater share of economic activity than it does now. Such control may have been justified back then in terms of ensuring that "official" seeds were the varieties they claimed to be, and of high quality. But it's surely time for restrictions on selling public domain seeds to be relaxed not just in France but everywhere they exist, to promote biodiversity and to offer a counterbalance to the increased control exercised by companies using patents.

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Filed Under: france, patents, public domain, seeds

Thailand Might Be Required To Sacrifice Plant And Seed Sovereignty For The Sake Of Trade Agreement With EU

from the bad-deals dept

Techdirt wrote recently about African nations agreeing to a new plant variety treaty that will benefit Western seed companies at the expense of local farmers. Not surprisingly, those corporations want similar powers elsewhere, and a post on the biothai.org site from earlier this year reveals that the European Union is trying to use a so-called "free trade" agreement currently being discussed with Thailand to give it to them:

If Thailand accepts the intellectual property law in the course of the negotiations for the Free Trade Agreement of EU-Thai, Thailand would have to amend its 1999 Plant Varieties Protection Act to make Thai law consistent with the 1991 UPOV Convention.

The biothai.org post goes on to spell out how such a move is likely to affect Thai agriculture:

Thailand would have to amend its laws. It would have to abandon the principles of requesting prior authorization and benefits sharing in relation to the development of new plant varieties. This would mean that the seed companies, multinational bio-tech companies, and the big agri-businesses would not need to make a request nor share benefits when they exploit wild plants or widely available plants and local plants to develop new varieties.

That's a classic case of exploiting the plant commons without sharing any of the benefits that flow from doing so. Extended monopoly rights will make things even worse, and undermine traditional farming traditions:

Thailand would have to extend the period of corporate monopoly rights over new varieties from 12 years in most cases, to 20 years. In addition, it would open up a loophole in the law for private companies to prevent farmers from collecting seeds of the new varieties for planting in the next season, as well as preventing them from distributing and exchanging seeds with neighbours both inside and outside their community, which is a common cultural practice of farming communities.

Biothai.org believes that these changes would mean local farmers paying three times the current price for seeds, and that corporations would soon gain complete control of the seed business. Those are all depressingly familiar consequences of giving up plant and seed sovereignty, but the biothai.org story contains the following novel aspect:

Compliance with demands of the European Union or hasty government amendments to domestic laws allows the government to claim that Thailand did not amend any laws on account of the EU-Thai FTA negotiations.

That's noteworthy, because there's evidence that the European Commission is aiming to implement key US demands for TAFTA/TTIP before negotiations are completed so that it too can claim that it did not amend any laws on account of it. If the biothai.org post is correct, it's a sneaky trick that seems to be spreading.

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Filed Under: plant, seeds, sovereignty, thailand, trade agreements

Africa's Ancient Plant Diversity And Seed Independence Still Under Threat From Proposed New Laws

from the with-a-little-help-from-their-friends dept

Back in May 2013, we wrote about worrying attempts to create a harmonized system for controlling the sale of seeds in Africa that would increase the power of large suppliers such as Monsanto, at the expense of small farmers. A long and interesting article in Intellectual Property Watch indicates that those efforts are intensifying:

The African Regional Intellectual Property Organization (ARIPO), with the help of the United States and an international plant variety organisation, is working to grow regional support for a controversial draft law. The draft protocol would boost protection for new plant varieties, despite concerns of local civil society that it would not be in the best interest of ARIPO members' food security due to its potential impact on small farmers. ARIPO held a regional workshop on the issue in recent weeks in part to build support for a treaty negotiation to lock in these protections.

There appears to have been an attempt to censor criticism at that workshop:

The event restricted the attendance of civil society, according to the Alliance for Food Sovereignty in Africa (AFSA). At the event, the group confirmed its fears about the impact of the adoption of the protocol on small farmers and food security. ARIPO, meanwhile, said it had not heard particular worries from farmers over time.

On its website, the AFSA explains its fears:

These national laws will enable the entry of foreign breeders and threaten the rights of small-scale farmers.

It also outlines plans to counter this move:

AFSA's goal over the next three years in this area will be: to build the capacity of AFSA members to influence regional and national seed legislation and policies towards protection of farmers’ rights in seed sovereignty. This will happen through and with the seed network that already exists. AFSA will help grow this into a continent-wide platform over the next three years.

That's a laudable goal, but the worry has to be that many new plant variety protection laws will have been passed by then -- doubtless with a little more help from the US on behalf of its Big Ag companies.

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Filed Under: africa, biodiversity, diversity, intellectual property, plant diversity, plants, seeds

Guatemala Resists 'Monsanto Law' Required As Part Of Trade Agreement With US

from the saving-seed-sovereignty dept

One of the less well-known projects of the West is to convince developing countries that they need to convert traditional approaches to agriculture, which have functioned well for hundreds of years, into a system of intellectual monopolies for seeds -- the implicit and patronizing message being that this is the "modern" way to do things. Last year we wrote about how this was happening in Africa, and an article on bilaterals.org reports on similar moves in Guatemala:

On 10 June, the Congress of Guatemala approved Decree 19-2014 or the "Law for the Protection of New Plant Varieties" which led to an outpouring of criticism from various sectors of civil society.

This law, published on 26 June, protects the intellectual property of plant breeders deemed to have "created" or "discovered" new plant varieties, or genetically modified existing ones.

This way, the beneficiaries of the law -- "breeders", which are typically companies producing transgenic seeds like the transnational corporation Monsanto -- obtain property rights over the use of such varieties, in the form of plants or seeds.

Here's how that is likely to impact Guatemalan farmers:

In a publication, the Rural Studies Collective (Cer-Ixim) warned about the consequences of this "Monsanto Law".

They explained that under this law the possession or exchange of seeds of protected varieties without the breeder's authorisation will be illegal and punishable by imprisonment.

It will also be illegal, and punishable by prison, to posses the harvest from such seeds or to save them for future plantings.

According to the law, the breeder's right extends to "varieties essentially derived from the protected variety." In this sense, a hybrid produced from a protected variety crossed with an unprotected variety would automatically belong to the breeder of the patented variety.

The law thus promotes privatisation and monopolies over seeds, endangering food sovereignty, especially that of indigenous peoples, said Cer-Ixim. It also warned that Guatemala's biodiversity will fall "under the control of domestic and foreign companies."

The new law was brought in as part of the process of complying with the 2005 CAFTA-DR free trade agreement between Costa Rica, El Salvador, Guatemala, Honduras, Nicaragua, the Dominican Republic and the US. Under its terms, signatories are obliged to sign up to the International Convention for the Protection of New Plant Varieties -- exactly the same one that was being foisted on Africa last year. However, as bilaterals.org reports, despite that obligation, there is mounting resistance to handing over the country's seed sovereignty in this way:

The growing opposition to the "Monsanto Law" comes from diverse sectors of civil society such as indigenous organisations, environmental groups, scientists, artists and members of Congress.

...

Artists and television celebrities have joined an online signature campaign to reject the law.

Their petition is addressed to the President, Otto Perez Molina, via the Avaaz website, and argues that the law is unconstitutional.

"This law violates articles of the Constitution relating to the Protection of Individuals, Cultural Identity, Natural Heritage, Right to Health, the principles of the Economic and Social Regime, in addition to the obligation of the state to protect consumers," the petition states.

Just recently, the Constitutional Court, Guatemala's highest legal body, provisionally suspended the entry into force of the law, giving 15 days for the various parties to to present their arguments. Despite the broad-based support for repealing or modifying the law, it is not clear what options the government has. After all, passing the law is a requirement of CAFTA-DR, and if Guatemala refuses to comply, we can expect the US to apply considerable pressure to encourage it to toe the line. Ultimately, the US can refuse to bring into force the agreement; given the presence of corporate sovereignty (pdf) and other onerous provisions in CAFTA-DR, maybe that wouldn't be such a bad thing for the people of Guatemala.

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Filed Under: agriculture, cafta, guatemala, intellectual property, monopolies, monsanto law, plants, seeds, trade agreements
Companies: monsanto

Open Source Seed Initiative: 'Free The Seed!'

from the protecting-the-commons dept

Last year we wrote about the idea of open-sourcing DNA for use in GMOs that were not subject to patent control -- a key problem with the technology, leaving aside other concerns about its application. The newly-launched Open Source Seed Initiative (OSSI) avoids the controversy surrounding GMOs by using traditional plant breeding, but still makes the results freely available. Here's how the OSSI describes its work:

The most distinguishing aspect of OSSI is the idea that genetic resources – in the form of seeds - are set aside for humanity to use in any way it sees fit. By attaching a free seed pledge to packets of open source seed, these genetic resources cannot be patented or otherwise legally protected, making them essentially available in perpetuity in a protected commons. If they were available only in a traditional commons, people could obtain them, breed with them, and restrict their use through patents or licenses. But in this commons they must remain free. Hence the phrase “Free the Seed!”

The free seed pledge is extremely simple:

This Open Source Seed pledge is intended to ensure your freedom to use the seed contained herein in any way you choose, and to make sure those freedoms are enjoyed by all subsequent users. By opening this packet, you pledge that you will not restrict others' use of these seeds and their derivatives by patents, licenses, or any other means. You pledge that if you transfer these seeds or their derivatives they will also be accompanied by this pledge.

The parallels with free software's GNU General Public License are clear:

the GNU General Public License is intended to guarantee your freedom to share and change all versions of a program -- to make sure it remains free software for all its users.

...

To protect your rights, we need to prevent others from denying you these rights or asking you to surrender the rights. Therefore, you have certain responsibilities if you distribute copies of the software, or if you modify it: responsibilities to respect the freedom of others.

For example, if you distribute copies of such a program, whether gratis or for a fee, you must pass on to the recipients the same freedoms that you received. You must make sure that they, too, receive or can get the source code. And you must show them these terms so they know their rights.

That's no coincidence, as an article on the University of Wisconsin's news site about the launch of OSSI explains:

Early on, inspired by the open source software community, which freely shares and collaborates to improve their products, OSSI members starting exploring how to develop open source licenses for seeds -- but came upon numerous roadblocks along the way.

This spring, eager to get things moving forward again, Goldman and Kloppenburg [two of the key people behind OSSI] convinced many in the group to embrace the simplest option they had discussed: the Open Source Seed Pledge.

Unlike the comprehensive open source licenses the OSSI group originally tried to develop, the pledge is very concise. It's so short it will be printed on all OSSI seed packets.

One question is how that pledge will be enforced: what happens if a company takes an open source seed and uses it to produce seeds that it then patents? Another is what impact the initiative will have. At launch, there are 29 new varieties of broccoli, celery, kale, quinoa and other vegetables and grains; one measure of OSSI's success will be how quickly this number grows. But in an article on the NPR Web site, the sociologist Jack Kloppenberg, who has been writing about the enclosure of the seed commons (pdf) and how to fight it (pdf) for nearly 30 years, is quoted as saying:

one important goal for this initiative is simply to get people thinking and talking about how seeds are controlled. "It's to open people's minds," he says. "It's kind of a biological meme, you might say: Free seed! Seed that can be used by anyone!"

The creation of free software 30 years ago has had a profound effect on computing, and helped fuel the rise of the Internet, with which it has a symbiotic relationship. Food and who controls it are arguably even more important issues for the world, and it would be nice to think that, despite its modest beginnings, the Open Source Seed Initiative might one day have as great an impact as its digital forebear.

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Filed Under: gmo, open source, open source seeds, seeds

DailyDirt: Rediscovering Heirloom Plants

from the urls-we-dig-up dept

It turns out that many Americans aren't paying much attention to the ongoing battle over labeling genetically modified foods. A recent survey by researchers at Rutgers University found that half of Americans know very little or nothing at all about GM foods, while a quarter have never even heard of them. Furthermore, they found that many Americans are also confused about what types of GM foods are on the market. Meanwhile, heirloom fruits, vegetables, and grains are gaining popularity. These are plants that have been grown and passed down from one generation to another -- some for more than 100 years -- often selected for their superior flavor, as well as other characteristics such as productivity, hardiness, and adaptability. If you want to avoid GM foods, why not spend some time rediscovering heirloom varieties? Here are a few links to get you started.

• Glass Gem corn is a stunning variety of heirloom corn that's named for its multi-colored, gem-like kernels. You really have to see it to believe it. Glass Gem is the result of many years of selective breeding of corn that exhibited vivid, translucent colors.[url]
• Tartine Bakery in San Francisco has started incorporating heirloom and ancient varieties of grains into the bread they make. Apparently, these older varieties of grains -- rye, barley, einkorn, and emmer -- have a different gluten quality that makes them easier to digest. [url]
• In case of an apocalyptic disaster that destroys the world's crops, the Svalbard Global Seed Vault will make sure we can rebuild the global plant population. Built on the edge of the Arctic Ocean in Svalbard, Norway -- away from civilization -- the seed vault can hold up to 4.5 million different seed varieties and keep them safe from disasters caused by climate change, asteroid strikes, plant diseases, nuclear warfare, and even earthquakes. [url]

If you'd like to read more awesome and interesting stuff, check out this unrelated (but not entirely random!) Techdirt post via StumbleUpon.

Filed Under: biotech, bread, food, genetically modified foods, glass gem corn, gmo, grain, heirloom corn, heirloom varieties, plants, seeds, svalbard global seed vault

Monsanto Wins Case Of Seed Patents; Planting Your Own Legally Purchased & Grown Seeds Can Be Infringing

from the this-is-the-world-we-live-in dept

We've written a few times now about Vernan Bowman's legal fight against Monsanto, concerning patents over so-called "Roundup Ready" seeds, which Monsanto has patented. Here's the quick version of the details from an earlier post:

The farmer, Vernan Bowman, bought official Monsanto seeds and planted his crops. Yet, Monsanto has rules that say you can't re-use "Roundup Ready" seeds, but you can apparently sell "second-generation" seeds to grain elevators for use as "commodity seeds," and doesn't require that there be any restriction on the sale. Bowman later bought a bunch of such "commodity seeds," which included some Roundup Ready seeds, and some that weren't. Bowman was able to determine which of the plants came from Roundup Ready seeds... and then saved those seeds for replanting. Monsanto claimed this was infringement, even though the seeds were legally sold to the grain elevator and then from the elevator to Bowman without restrictions. On top of that, while Bowman had signed an agreement for his original seeds, he did not with this batch (and, indeed, even Monsanto admits he didn't break the user agreement -- just patent infringement for using the seeds).

Note the key things here. Bowman did not break any license agreement over seeds that he bought. He also legally purchased other seeds that had been legally provided to grain elevators to be sold. All he did was plant those legally purchased seeds, for which he was not violating any license agreement, and then harvest and replant the seeds that came from them. And this, apparently, is illegal under our patent system.

Given the fire power that came out in support of Monsanto -- including the federal government -- it shouldn't come as a huge surprise that the Supreme Court just gave a complete and total victory to Monsanto. The key issue was whether or not this was a case of "patent exhaustion." There was a key case a few years ago that mostly said that once a patent holder sells a product, the patent is "exhausted" so that the patent holder can't demand licensing fees up and down the supply chain. However, they distinguish this case by saying that this is different because it's a "copy" of the legally purchased seed. I could see how that would make sense if we were talking about someone building a copy of a machine in a garage or something, but this is a seed. Copying itself is what seeds do. That's kind of their entire purpose.

Yet, throughout the decision, the court (with a decision written by Justice Kagan) acts as if Bowman just built a replica. But that ignores the fact that this is nature we're talking about seeds that replicate themselves naturally, because that's what seeds do. The court has no problem with this, but it seems somewhat ridiculous that someone can legally buy something, have it do what it naturally does (and has done for nearly all of history) and then be told that violates a patent. When addressing Bowman's point concerning the fact that seeds by nature, replicate themselves, they basically brush that aside by noting that Bowman then harvested them. As if he's supposed to ignore what's happening?

But we think that blame-the-bean defense tough to credit. Bowman was not a passive observer of his soybeans’ multiplication; or put another way, the seeds he purchased (miraculous though they might be in other respects) did not spontaneously create eight successive soybean crops. As we have explained... Bowman devised and executed a novel way to harvest crops from Roundup Ready seeds without paying the usual premium.

The decision keeps restating the myth that patent holders wouldn't innovate if they weren't blocked from any and all competition.

That is because, once again, if simple copying were a protected use, a patent would plummet in value after the first sale of the first item containing the invention. The undiluted patent monopoly, it might be said, would extend not for 20 years (as the Patent Act promises), but for only one transaction. And that would result in less incentive for innovation than Congress wanted. Hence our repeated insistence that exhaustion applies only to the particular item sold, and not to reproductions.

That's a pretty bold statement, and one not supported by any evidence. There are plenty of reasons to innovate that have little to do with patents, and competition in the marketplace is a big one. The process Bowman used above may have created some competition for Monsanto, but hardly in a way that destroyed the value of the patent. Monsanto was still first to market and still could control various uses via licensing agreements. Furthermore, the process that Bowman went through was inexact and required a few years of harvests.

The one thing that the ruling does say, however, is that no one should take this ruling to apply to other self-replicating products, such as technology:

Our holding today is limited—addressing the situation before us, rather than every one involving a self-replicating product. We recognize that such inventions are becoming ever more prevalent, complex, and diverse. In another case, the article’s self-replication might occur outside the purchaser’s control. Or it might be a necessary but incidental step in using the item for another purpose. ... (“[I]t is not [a copyright] infringement for the owner of a copy of a computer program to make . . . another copy or adaptation of that computer program provide[d] that such a new copy or adaptation is created as an essential step in the utilization of the computer program”). We need not address here whether or how the doctrine of patent exhaustion would apply in such circumstances.

While it's good that they acknowledge this, you can bet that this case will be cited heavily when the same issue comes up in court concerning self-replicating software and hardware...

Filed Under: patent exhaustion, patents, seed patents, seeds, self-replicating, supreme court, vernan bowman
Companies: monsanto

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