Claiming patents on seed and patents on life is equivalent to claiming destruction as creation, ignorance as innovation, writes Vandana Shiva
EXCERPT: Monsanto claiming ownership of the seed because it had the tools to shoot a gene with a gene gun into the cell of the plant is the equivalent to a doctor who has facilitated in-vitro fertilisation claiming parenthood and ownership not only of the child thus born, but of all its descendants in the future. Society will surely reject such a claim.
Why the government is right in controlling the price of Monsanto's Bt cotton seeds
Scroll.in, 22 Aug 2016
Would we allow someone to claim they were the owner of a building only because they moved furniture into it and therefore claims a right to collect rent for it from the landlord?
When we do not allow such illogical claims to become the basis of property law, how can they be allowed to become the basis of ownership of seed and ownership of life?
That, in essence, is the argument against corporations such as Monsanto that deal with Genetically Modified Organisms or GMO. By adding one new gene to the cell of a plant, such corporations claimed they had invented and created the seed, the plant, and all future seeds which have now become their property.
In other words GMO meant: God Move Over.
By claiming to be the inventor of these seeds, Monsanto claimed to be the creator and owner of generations of seeds that reproduce themselves for life and the right to collect royalties from farmers.
These claims are illegal, unethical, unjust.
Over 300,000 Indian farmers have committed suicide because of extraction of illegal royalties. This crime must stop, which is why this writer joined Navdanya Seed Savers who submitted 30,000 signatures to the Agriculture Ministry to uphold the Seed Price Control Order, 2015, issued in December 2015 and the "Licensing and Formats for GM Technology Agreements Guidelines, 2016 issued on May 18. On May 22, the agriculture ministry invited the farmers and civil society to respond to the issue of price control within a period of 90 days.
Seed is the source of life. Life forms, forms of life – plants and seeds – are self-evolving, self organised sovereign beings. They have Intrinsic worth, value and standing. They multiply and reproduce. Signatures are still pouring in from around the country to uphold Bija Swaraj, or the seed sovereignty of Indian farmers, and to prevent the loot of India’s biodiversity by corporations like Monsanto.
Shaping intellectual property rights
By defining seed as their creation and invention, corporations have shaped the global intellectual property rights and patent laws so that they could prevent farmers from saving and sharing seeds. This is how the Trade Related Intellectual Property Rights – or TRIPS – Agreement of the World Trade Organisation came to be drafted.
These corporations have assumed that they would continue to play the role of “patient , diagnostician and prescribing physician”. But it forgot two vital ingredients of patent laws – national sovereignty and the public interest , specially rights of the farmers.
Argentina and India played a big role in ensuring that clear exclusions and flexibility clauses were introduced in TRIPS, which allowed countries to exclude patents on plants and seeds.
India’s patent law excludes plants and animals, essentially biological processes, from being counted as an invention – as do laws in Brazil, Argentina and Mexico. India is the only country to have a law with farmers' rights in its name, titled Protection of Plant Varieties and Farmers’ Rights Act, 2001, which has the following clause on Farmers Rights:
“A farmer shall be deemed to be entitled to save, use, sow, resow, exchange, share, or sell his farm produce including seed of a variety protected under this Act in the same manner as he was entitled before the coming into force of this Act.”
Essentially, India and other countries with such laws have argued that adding a gene or genetically modifying a seed does not amount to inventing or creating a cotton seed or a soya bean seed and its future generations. Monsanto is challenging these laws across the world, even though they are consistent with TRIPS, as they come in the way of Monsanto’s absolute seed monopoly.
In Argentina, a judge rejected Monsanto soya bean patent, saying, “The writer of a book cannot claim to be the inventor of a language."
Monsanto is not writing the book of life. It is just scrambling the letters in total ignorance of what its “genetic modification” means at the level of the organism, the seed or the eco system. Claiming patents on seed and patents on life is therefore equivalent to claiming destruction as creation, ignorance as innovation.
After having lost the case in the Intellectual Property courts, Monsanto has now brought a challenge in the Supreme Court of Argentina stating that a GMO soya plant is not a plant, and hence cannot be excluded from patentability on the basis of Argentina’s patent laws, just like it is trying to challenge the government of India by arguing that Bt Cotton seed is not a seed when it comes to regulation of seed prices.
So is Bt cotton seed a cotton seed – or not?
In spite of having no patent on Bt cotton seed, Monsanto started to collected royalties from Indian farmers, pushing up the cotton seed price by about 71,000% (from Rs 5 per kg to Rs 1,600 for 450 gms). First the Monopolies and Restrictive Trade Practices Act was used and then the government had to intervene by means of the Cotton Seeds Price (Control) Order, 2015 to regulate prices and royalty under the Essential Commodities Act to protect farmers' right to affordable and reliable seed.
Monsanto challenged the order in Delhi High Court and Karnataka High Court. It claimed that the GMO cotton seed is not a seed and its price cannot be regulated under the Essential Commodity Act. It argued that the licensing arrangements were private contracts, that the state could not regulate licences to ensure justice and fair competition. It contended that the royalty or trait value could not be determined by government. It insisted further that Monsanto does the breeding, multiplication and distribution of seeds in India.
But the Karnataka High Court dismissed all these contentions.
The licensing guidelines became necessary because Monsanto was functioning outside the law, as a rogue corporation. These guidelines are a clear reminder of the Indian laws that are in place related to seeds and plants, based on the scientific recognition that seeds make themselves and biological processes are not “manufacture”.
Monsanto is trying to have its cake and eat it too. To resist regulation of seed prices and royalties, it is arguing that a Bt cotton seed is not a seed. But it becomes a seed when it comes to collecting royalties.
The licensing rules recognise Monsanto’s rights to its Bt construct but they reiterate India’s laws that recognise that the seed reproduces itself through essentially biological processes of reproduction. And when Indian breeders breed new varieties using the trait, they are the breeders, not Monsanto – the intellectual property rights for plant varieties will therefore be assigned to the rightful breeders.
Monsanto claiming ownership of the seed because it had the tools to shoot a gene with a gene gun into the cell of the plant is the equivalent to a doctor who has facilitated in-vitro fertilisation claiming parenthood and ownership not only of the child thus born, but of all its descendants in the future. Society will surely reject such a claim.