'Healthy bacon' patents raise questions
Anna Salleh
ABC Science Online, August 19 2010
http://www.abc.net.au/news/stories/2010/08/19/2987197.htm

Patent applications covering the enhancement of meat, including pork with omega-3 fatty acids, are stimulating debate over the ethics and legalities of claiming intellectual property over food.

Monsanto has filed patents that cover the feeding of animals soybeans, which have been genetically modified by the company to contain stearidonic acid (SDA), a plant-derived omega-3 fatty acid.

"The invention relates to the enhancement of desirable characteristics in pigs and pork products through the incorporation of beneficial fatty acids in animal feed or in animal feed supplements," reads one patent application.

The application states that the transgenic SDA soybeans can provide a cost-effective source of omega-3 fatty acids, relieving strain on fish stocks, which are currently a major source of omega-3s.

Omega-3s have been linked to improved cardiovascular health and there are many companies engineering them into foodstuffs.

But the new patent applications have touched a raw nerve among those who see them as an attempt by the company to exert control over the food chain.

"As a community we need to decide whether we want our most basic foods to be owned by chemical companies," says Greenpeace Australia's Laura Kelly.

Claims withdrawn?

A statement on Monsanto's website responds to such concerns.

"Since the initial patent filings, Monsanto has taken steps to withdraw the specific claims in the patent applications relating to animals and their meat," the company states.

"Monsanto has no plans to take ownership of or sell company-branded omega-3 enriched meat."

But Greenpeace remains unconvinced.

Ms Kelly says even if they do not claim ownership of the meat Monsanto might still claim royalties on meat product sales that have been produced using their transgenic feed.

Pig industry sources say Monsanto's SDA soybean is a novel way to increase omega-3 levels in pigs but some question whether patent authorities would grant Monsanto ownership to omega-3-enriched meat.,

"I'd be very surprised," says Dr Roger Campbell of the Pork CRC in Adelaide, which is involved in enriching pork with omega-3-containing algae.

Campbell says it is possible that Monsanto could charge a royalty on the final meat product produced, although it would be difficult to do.

Brisbane-based nutritionist, Dr Robert van Barneveld, who sits on the boards of the Pork CRC and Australian Pork Limited, says to claim ownership of the meat, Monsanto would probably have to prove it contained the exact profile of omega-3 fatty acids from the SDA soybean and that this was having a demonstrable positive effect on the consumer.

"If they've done that, perhaps they might have a basis for their intellectual property claim," he said.

Monsanto specifies the invention would include pork products containing 0.05 grams per 100 grams of fat of SDA.

Lack of clarity

"There's controversy over the scope and breadth of this patent," says biotechnology law and intellectual property expert, Dr Matthew Rimmer of the Australian Centre for Intellectual Property in Agriculture at the Australian National University in Canberra, of the pork patent.

"And there is controversy over the implications of this patent for ownership of food, plants and animals."

Despite Monsanto's statement on the web, Dr Rimmer says it is unclear what aspects of the patents have been withdrawn.

"The databases that I've looked at do not show yet what claims have been withdrawn," he said.

Dr Rimmer says preliminary assessments by the World Intellectual Property Organization (WIPO) have questioned the basis of Monsanto's claim for a patent on omega-3 enhanced meat.

But, he says it will be up to individual countries to determine the validity of any patent claims that are made.

Patent games

So will Monsanto assert any form of intellectual property on meat produced from animals fed their SDA soyabean?

And if not, why did they make the patent claims in the first place?

Unfortunately the company itself was unavailable to comment despite repeated attempts inviting their response.

But Dr Rimmer says by putting the claims on meat in the public domain, Monsanto ensures rivals and competitors would be unable to file similar claims.

Indeed Monsanto states on its website "because the earlier application disclosed the animal and meat benefits, no one else can now claim these as their invention."

Some in industry suggest that Monsanto's apparent backtracking on the meat patent is a way of making something positive out of the negative assessments from WIPO.

Patent shift

Dr Rimmer says historically patents have not been allowed on food due to concerns about the possible impact of pricing and access to food.

But in recent years there has been a shift.

"There's been a much more liberal approach to patenting food and this patent raises issues about that," Dr Rimmer said.

Dr Rimmer believes the recent New York district court ruling against biotechnology company Myriad's right to patent breast cancer genes is not representative of currrent trends in patent rulings, and will be overturned at future appeals.

"The rest of the jurisprudence in the United States takes a very expansive view of patentable subject matter," he said.

"And you're going to have a 'pile on' by all the biotech companies and pharmaceutical companies, and I'm just not sure that judgment is going to withstand that sort of pressure."