2.Biotech and IP Abuse
1.Climate ready GM crops: The patent race
ClimateChangeCorp, 17 Sep 2008
GM food special report: Crops that survive climate change
The world’s big seed companies face claims of bio-piracy and a tough fight with activists as they race to secure patents for climate-proof GM crops.Over the past four years, the world’s leading agricultural biotechnology companies have flooded patent offices with applications for “climate-ready” genes. The companies claim their genetically engineered climate-resistant seeds can withstand catastrophic effects of global warming, such as floods, drought, heat, cold and salinity.
Over 530 applications, belonging to 55 patent families, for climate-ready genes have already been lodged, according to a report in June by the Ottawa-based Action Group on Erosion, Technology and Concentration (ETC group), which works for human rights and conservation. Most of the claims, some of which have already been approved, are for a gene sequence and a method for using it to engineer a plant that can withstand environmental stress.
Monsanto, the world’s largest seed company, and BASF, the world’s largest agro-chemicals company, lead the pack, seeking control of 27 of the 55 patent families. The two agro-giants are partners in a $1.5 billion research project to bio-engineer climate-resistant crops. Other companies in the patent race include Dupont, Dow Agro Sciences and Land O’ Lakes from the US, Syngenta of Switzerland, Group Limagrain of France and Bayer and KWS from Germany.
These companies are accustomed to criticism of genetically modified organisms (GMOs) or GM crops for their potential impact on the environment and the poor, but their efforts to patent climate-resistant GM crops have attracted fresh accusations this time of bio-piracy.
Patent case of bio-piracy?
Vandana Shiva, a veteran environmentalist and founder of the Research Foundation for Science, Technology and Ecology a New Delhi-based NGO says the climate-ready genes companies are claiming as their own invention already exist and that local farmers are familiar with the varieties in which they appear.
Activists say that companies are collecting seeds from parts of the world with extreme climatic conditions in the assumption that seeds there will possess the desired genetic traits. Then they map the genome of these varieties to identify genes or gene sequences that increase a plant’s tolerance to a certain environmental stress. The companies then develop a way of transferring the identified gene sequences in a transgenic plant, or a method to over-express the trait in the same plant.
“Farmers in India have long known and used flood-resistant, drought-resistant, cold-resistant and heat-resistant seeds to adapt to local climatic conditions,” says Shiva. “Patents on these traits to multinational companies deny the innovation embodied in indigenous knowledge.”
There is already a large number of known climate-resistant crops. Scientists from the International Rice Research Institute and the University of California-Davis discovered a farmers’ variety of flood-resistant rice called “Dhullaputia” in the flood-prone state of Orissa in India. Dhullaputia is considered the world’s most flood-tolerant variety, and this trait was identified by local farmers 50 years ago.
Similarly, researchers have found traditional African rice that can withstand drought and heat. The African Rice Centre, an intergovernmental research association, is now developing drought-resistant varieties by crossing traditional African rice with high-yielding Asian rice.
“Seed companies are simply taking such naturally available varieties in developing countries and using genetic engineering to isolate climate-tolerant genes ”¦ [in order to] transfer them into a new species to claim patents,” says Shiva.
A Monsanto spokesman in India responded: “Climate change will pose new challenges for farmers around the world, and Monsanto and other companies are making major research and development investments to help farmers meet those challenges. Patent protection allows companies to see a return on their investment which enables further investment in research and product development.”
Monsanto also said that “bio-piracy” was not an adequately defined concept, and certainly had no internationally agreed definition.
The ETC Group defines bio-piracy as “the appropriation of the knowledge and genetic resources of farming and indigenous communities by individuals or institutions who seek exclusive monopoly control, through patents or intellectual property, over these resources and knowledge.”
Activists say that current patent regimes benefit the multinationals, because the burden of evidence to prove piracy lies with the party challenging the patent. There are fears in the developing world that once patents are granted to seed companies, local farmers will be forced to stop using, even destroy, their own climate-resistant traditional varieties.
Once a genetic sequence becomes the intellectual property of a company, it can prevent others using any plant that has a substantially similar sequence. Farmers could therefore have to buy climate-tolerant seeds from these companies for every crop-cycle and would not be allowed to store or exchange seeds for replanting.
The broad application of patents is also a possibility. For example, a Dupont patent claim for a method that will improve a plant’s drought or cold tolerance is not limited to one crop but may extend to several other plants, such as maize, barley, wheat, oat, rye, sorghum or rice, soybean, alfalfa, safflower, tobacco, sunflower, cotton or canola, according to the ETC Group. Monsanto, BASF, Syngenta and others have filed numerous sweeping claims that will preclude future competition by other companies.
Claims of damage to farmers
Seed companies claim their climate-resistant seeds will not only help tackle global warming but address hunger and food shortage.
Shiva claims, conversely, that “if climate-traits are patented, the cost of agriculture will go up and the poor will suffer even more. Governments will have to spend more money to buy patented seeds as poor farmers will not be able to afford them.”
She points to repeated reports of suicides by debt-ridden cotton farmers in south India since they started using Bt Cotton, a GM variety, in 2002. Activists estimate that over 200 farmers have committed suicide over the period in the Vidarbha region as their yield actually declined after using the GM seeds.
Activists say that these farmers had borrowed money, mostly from local loan sharks to buy Bt seeds. However, the revenues from the crop were not sufficient to cover the debt. And they had no money to buy seeds for the new season. Moneylenders then foreclosed the loans and confiscated their lands.
“This will be repeated with other crops now. Multinational seed companies will force farmers to buy their fraudulently patented climate-resistant seeds and push them into debt,” warns Shiva.
Hope Shand, research director of ETC Group, says: “Governments should respond by recognising, protecting, and strengthening farmer-based breeding and conservation programs and the development of on-farm genetic diversity as a priority response for climate change survival and adaptation.”
Campaign for regime change
Experts say a weak international patent regime is making bio-piracy easier for companies. “While patent regime introduced by the WTO TRIPS (Trade Related Aspects of Intellectual Property) affords protection to technologies developed by using biological material, the rights of countries providing the material, as recognised by UN Convention on Biodiversity, are completely ignored,” says Kasturi Das, a Fellow at the Centre for WTO Studies at the Indian Institute of Foreign Trade in New Delhi.
Developing countries have clubbed together to demand an amendment to TRIPS, requiring patent applications to disclose the origin of biological resources or associated traditional knowledge, provide evidence of prior information consent from the origin country and of benefit sharing. However, a number of richer nations, including the US, Canada, Australia, South Korea and Japan, have voted against the proposals.
Shiva plans to launch a global campaign against bio-piracy of climate-tolerant plant genes on October 1, which will include filing bio-piracy cases against climate-trait patents in patent offices in the US and Europe.
She has already overturned three non climate-related GM patents filed by US companies WR Grace, Rice Tec and Monsanto, on patents related to Neem plant, Basmati rice and Nap Hal wheat respectively. The authorities in Europe and the US accepted that the patents amounted to bio-piracy.
That multinational companies were successful in claiming such patents in the first place reflects on the weaknesses of the patent regime, Shiva says. Nevertheless, she is confident the climate trait-based patents will also be overturned.
A Monsanto spokesman told ClimateChangeCorp.com: “We are extremely confident that all of our patents were developed in accordance with international laws and agreements.”
Despite stiff resistance from most countries, and from the EU as whole, GM crops are big business. Agricultural biotechnology market research firm Context Network estimates that the global proprietary seed market exceeded $22 billion in 2007, a 10% growth over 2006. And with global warming expected to create unprecedented demand for climate-resistant varieties to address food shortages, the new GM seeds could gain biotech firms entry into fresh markets and power even more explosive growth.
The stakes are high for both the seed giants and the activists we should expect a protracted battle.
2.Biotech and IP Abuse
[extracted from: The South Strikes Back Against Overreaching IP Enforcement]
IPWatch, 17 September 2008
[Carlos Correa from the University of Buenos Aires] suggested that developing countries should develop their own set of data and should start recording anti-infringement abuses. He presented the case of Monsanto against Argentina concerning Roundup Ready soybeans in which the company sought compensation for its technology even though the modified bean technology is in the public domain in Argentina. When such compensation was not forthcoming, Monsanto tried to use patents obtained in the EU to stop Argentina's imports of processed soy flour to Europe.
Soyflour is a derivative product of soybeans and the patents cover genetic sequences within a living soy plant. According to EU biotechnology directive (Art. 9) a gene "should perform its functions," which is rendered impossible by the processing needed to make the soy plant into flour. But some European countries complied with Monsanto's claim and stopped imports based on the suspicion of patent infringement. "Patent infringement is very hard do determine by custom officers" who might not have the expertise, Correa said. "This is why alleged patent infringement is so dangerous."