Patently Wrong! Monsanto species patent on soy beans upheld in Munich

[Guest guest]

ETC group

Patently Wrong! Monsanto species patent on soy beans upheld in Munich

 

News Release

Wednesday, May 7th 2003

www.etcgroup.org

 

Europe's (and the World's) Big Soy Berger:

Patently Wrong!

 

After delays, denial, and double standards, Monsanto maintains unjust monopoly

on major food crop. Time to talk to the cooks about a new recipe?

 

In a jaw-dropping affirmation of Monsanto's monopoly control over commodity

crops, one of the world's most notorious patents for genetically engineered

crops was yesterday upheld by the European Patent Office (EPO) in Munich - this

despite a nine year battle by civil society (and industry) to have it revoked.

European Patent No. 301,749, granted in March 1994, is an exceptionally broad

" species patent " which grants gene giant Monsanto exclusive monopoly over all

forms of genetically engineered soybean varieties and seeds - irrespective of

the genes used or the transformation technique employed. The patent, attacked as

immoral and technically invalid by food security advocates worldwide, was

vigorously opposed by Monsanto itself until they purchased the original patent

holder (Agracetus) in 1996, and switched sides to make the soybean species

patent a major ingredient in its global recipe for crop monopoly.

 

Backburner: The case simmered on the EPO's backburner for an astonishing nine

years before reaching the patent tribunal in Munich yesterday. The EPO took only

ten hours (including coffee and cake breaks) to hear oral arguments and uphold

Monsanto's monopoly. Monsanto did surrender one unsustainable claim in the

patent (claim no. 25), which sought control beyond soybeans to other plants as

well.

 

ETC Group, who maintained its opposition to the patent since first uncovering it

nearly a decade ago, were present in Munich yesterday with expert legal counsel,

UK barrister Daniel Alexander and patent attorney Tim Roberts. Other opponents

included Greenpeace, activist Stefan Geene, Syngenta and Pioneer Hi-Bred (a

subsidiary of DuPont).

 

ETC Group and other opponents expressed bitter disappointment at the outcome.

 

Same old recipe: " Monsanto has made overtures in the media to reinvent

themselves as a gentler, humbler company, " said Hope Shand, ETC Group Research, " But their behavior in court showed that where it matters, Monsanto is

still aggressively pursuing monopolistic control by any means available. Even

more alarming is how readily the patent system rewards such behavior, ignoring

basic morality, and failing to encourage socially beneficial innovation. When

ETC Group first challenged this patent we were primarily concerned about the

threat to food security from the Gene Giants - today, nine years later, we find

ourselves equally shocked and concerned about the threat to democracy from such

an unresponsive patent system. It portends much larger patent problems to come

with nanotechnology and other emerging technologies. "

 

" This is a thoroughly bad decision, " said patent attorney Tim Roberts. " You

would look far to find another patent in which such a small advance has

justified such an enormous claim. It seems to have been reached by mechanically

applying inappropriate precedent, while ignoring the fundamental principle of

the patent system - the balance of rights between the innovator and society. If

the Opposition Board's decision is correct in law, then the law needs to be

changed, "

said Roberts.

 

SARS bars and Geene engineering: Monsanto began the proceedings in Munich with

successful legal moves to deny some expert witnesses the right to speak;

including Dr. Suman Sahai of the Gene Campaign who had been brought by

Greenpeace from India to testify about the impact of the patent on food

security. Most amazingly, soybean experts from China, the genetic homeland of

soya, had already been barred from the EPO court because of SARS fears. Monsanto

then proposed to the tribunal that ETC Group and long-time German campaigner

Stefan Geene be disqualified from the hearing, claiming that Geene, despite

being present in the courtroom, was a 'fictitious person'. Although Monsanto's

request was denied, it set the tone for its strategy throughout the day. Debate

on ethical questions was largely marginalised by Monsanto and an unresponsive

Tribunal.

 

Secret Recipe: Perhaps most astonishing was Monsanto's legal maneuvering to

sidestep its own evidence. In 1994 Monsanto gave unambiguous evidence in an

opposition statement requesting that the patent be revoked. One of Monsanto's

top scientists testified in 1994 that the genetic engineering process described

in the patent was insufficient to allow someone skilled in the science to

replicate the procedure - a necessary criterion for patentability. Nevertheless

Monsanto's lawyers successfully argued that the company should be allowed

monopoly over any genetically engineered soybean seed and variety obtained

through any and all modification processes.

 

Let them eat cake? " It's a bit like publishing a badly written cake recipe and

then claiming ownership of any cakes baked by anybody using any recipe any time

in the future, " explained Jim Thomas, of ETC Group's Oxford office. " In fact,

since acquiring Agracetus, Monsanto has already leveraged this patent as part of

their strategy to grab as much of the cake as they can - seeking to control one

of the world's most important food crops. Monsanto now controls 100% of the

world's genetically engineered soybeans covering 36.5 million hectares in 2002 -

that's over half of the world's total soybean area. It's hard to imagine a more

blatant and dangerous monopoly. "

 

Soy Berger King: According to Dr. Christoph Then, patent expert for Greenpeace,

" This case is a clear signal that the European Patent Directive should be

revoked. Europe needs new patent legislation that expressly prohibits patents on

life. " Dr. Then and Stefan Geene represented Greenpeace at the EPO tribunal

yesterday.

 

Matter Monopolies: ETC Group also regards the maintenance of this patent as a

dangerous precedent for other broad claims on new emerging technologies, in

particular nanotechnology - the atomic manipulation of matter to create new

molecular forms. " This broad patent on Soybeans was allowed precisely because

aggressive corporations and lax governments were pushing the boundaries in the

early days of biotech, allowing exclusive monopoly patents on all biological

products and processes, " explained Shand. " Today, corporations are grabbing

nano-patents on molecular products and processes, even the chemical elements

that make up all of nature. With nanotech patents, 'Matter Moguls' threaten to

control the fundamental building blocks of nature. "

 

Recipe change: " We fear that the EPO decision on Monsanto's soybean patent gives

comfort to those who want to establish ever wider legal claims - including

matter monopolies, " emphasized Jim Thomas. " Monsanto may have won an entire

species but others are seeking to monopolise entire elements of nature.

Atomic-level manufacturing provides new opportunities for sweeping monopoly

control over both living and non-living matter. " With technologies converging at

the nanoscale, ETC Group warns that efforts to oppose intellectual monopolies

must not be limited to campaigns against the patenting of life. This issue will

be discussed at an upcoming seminar for policy makers, civil society and the

media in the European Parliament in Brussels on June 11th. " If the recipe is

this bad we'll take it back to the cooks, " Thomas concludes.

 

Seminar in European Parliament: Together with the European Greens, The

Ecologist, Greenpeace, The Dag Hammarskjöld Foundation, Genewatch UK, Clean

Production Action and a cross-party group of MEP's, ETC Group will hold a

seminar on nanotechnology in the European Parliament in Brussels on June 11,

2003. Led by international experts, the seminar will look at both the issues

related to nanotech and intellectual property as well as societal and safety

questions with a view to consider appropriate steps for government regulation.

Speakers include physicist Dr. Vandana Shiva and toxicologist Dr. Vyvyan Howard.

The seminar will be followed on June 12 by a discussion among civil society

organisations in Europe on strategies to address the issues involved in

nanotechnology. For further information please see ETC Group's website:

www.etcgroup.org or contact jim.

 

Note to editors: Although the EPO tribunal decisively ruled in favour of

Monsanto, the panel will not release its written judgment for several more

weeks.

 

For further information:

Pat Mooney, ETC Group (Canada) +1 204 4535259

Jim Thomas, ETC Group (UK) jim +44 (0) 1865 207818

or Mobile +44 (0) 7752 106806

Hope Shand, ETC Group (USA) hope +1 919 9605223

Silvia Ribeiro, ETC Group (Mexico) silvia +52 55 55 632 664

 

The Action Group on Erosion, Technology and Concentration, formerly RAFI, is an

international civil society organization headquartered in Canada. The ETC group

is dedicated to the advancement of cultural and ecological diversity and human

rights. www.etcgroup.org. The ETC group is also a member of the Community

Biodiversity Development and Conservation Programme (CBDC). The CBDC is a

collaborative experimental initiative involving civil society organizations and

public research institutions in 14 countries. The CBDC is dedicated to the

exploration of community-directed programmes to strengthen the conservation and

enhancement of agricultural biodiversity. The CBDC website is

www.cbdcprogram.org.

 

 

 

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[Guest guest]

News Release

Wednesday, May 7th 2003

www.etcgroup.org

 

Europe's (and the World's) Big Soy Berger:

Patently Wrong!

 

After delays, denial, and double standards, Monsanto maintains unjust

monopoly

on major food crop. Time to talk to the cooks about a new recipe?

 

In a jaw-dropping affirmation of Monsanto's monopoly control over commodity

crops, one of the world's most notorious patents for genetically engineered

crops was yesterday upheld by the European Patent Office (EPO) in Munich -

this despite a nine year battle by civil society (and industry) to have it

revoked. European Patent No. 301,749, granted in March 1994, is an

exceptionally broad " species patent " which grants gene giant Monsanto

exclusive monopoly over all forms of genetically engineered soybean

varieties and seeds - irrespective of the genes used or the transformation

technique employed. The patent, attacked as immoral and technically invalid

by food security advocates worldwide, was vigorously opposed by Monsanto

itself until they purchased the original patent holder (Agracetus) in 1996,

and switched sides to make the soybean species patent a major ingredient in

its global recipe for crop monopoly.

 

Backburner: The case simmered on the EPO's backburner for an astonishing

nine years before reaching the patent tribunal in Munich yesterday. The EPO

took only ten hours (including coffee and cake breaks) to hear oral

arguments and uphold Monsanto's monopoly. Monsanto did surrender one

unsustainable claim in the patent (claim no. 25), which sought control

beyond soybeans to other plants as well.

 

ETC Group, who maintained its opposition to the patent since first

uncovering it nearly a decade ago, were present in Munich yesterday with

expert legal counsel, UK barrister Daniel Alexander and patent attorney Tim

Roberts. Other opponents included Greenpeace, activist Stefan Geene,

Syngenta and Pioneer Hi-Bred (a subsidiary of DuPont).

 

ETC Group and other opponents expressed bitter disappointment at the

outcome.

 

Same old recipe: " Monsanto has made overtures in the media to reinvent

themselves as a gentler, humbler company, " said Hope Shand, ETC Group

Research Director, " But their behavior in court showed that where it

matters, Monsanto is still aggressively pursuing monopolistic control by any

means available. Even more alarming is how readily the patent system rewards

such behavior, ignoring basic morality, and failing to encourage socially

beneficial innovation. When ETC Group first challenged this patent we were

primarily concerned about the threat to food security from the Gene Giants -

today, nine years later, we find ourselves equally shocked and concerned

about the threat to democracy from such an unresponsive patent system. It

portends much larger patent problems to come with nanotechnology and other

emerging technologies. "

 

" This is a thoroughly bad decision, " said patent attorney Tim Roberts. " You

would look far to find another patent in which such a small advance has

justified such an enormous claim. It seems to have been reached by

mechanically applying inappropriate precedent, while ignoring the

fundamental principle of the patent system - the balance of rights between

the innovator and society. If the Opposition Board's decision is correct in

law, then the law needs to be changed, "

said Roberts.

 

SARS bars and Geene engineering: Monsanto began the proceedings in Munich

with successful legal moves to deny some expert witnesses the right to

speak; including Dr. Suman Sahai of the Gene Campaign who had been brought

by Greenpeace from India to testify about the impact of the patent on food

security. Most amazingly, soybean experts from China, the genetic homeland

of soya, had already been barred from the EPO court because of SARS fears.

Monsanto then proposed to the tribunal that ETC Group and long-time German

campaigner Stefan Geene be disqualified from the hearing, claiming that

Geene, despite being present in the courtroom, was a 'fictitious person'.

Although Monsanto's request was denied, it set the tone for its strategy

throughout the day. Debate on ethical questions was largely marginalised by

Monsanto and an unresponsive Tribunal.

 

Secret Recipe: Perhaps most astonishing was Monsanto's legal maneuvering to

sidestep its own evidence. In 1994 Monsanto gave unambiguous evidence in an

opposition statement requesting that the patent be revoked. One of

Monsanto's top scientists testified in 1994 that the genetic engineering

process described in the patent was insufficient to allow someone skilled in

the science to replicate the procedure - a necessary criterion for

patentability. Nevertheless Monsanto's lawyers successfully argued that the

company should be allowed monopoly over any genetically engineered soybean

seed and variety obtained through any and all modification processes.

 

Let them eat cake? " It's a bit like publishing a badly written cake recipe

and then claiming ownership of any cakes baked by anybody using any recipe

any time in the future, " explained Jim Thomas, of ETC Group's Oxford office.

" In fact, since acquiring Agracetus, Monsanto has already leveraged this

patent as part of their strategy to grab as much of the cake as they can -

seeking to control one of the world's most important food crops. Monsanto

now controls 100% of the world's genetically engineered soybeans covering

36.5 million hectares in 2002 - that's over half of the world's total

soybean area. It's hard to imagine a more blatant and dangerous monopoly. "

 

Soy Berger King: According to Dr. Christoph Then, patent expert for

Greenpeace, " This case is a clear signal that the European Patent Directive

should be revoked. Europe needs new patent legislation that expressly

prohibits patents on life. " Dr. Then and Stefan Geene represented Greenpeace

at the EPO tribunal yesterday.

 

Matter Monopolies: ETC Group also regards the maintenance of this patent as

a dangerous precedent for other broad claims on new emerging technologies,

in particular nanotechnology - the atomic manipulation of matter to create

new molecular forms. " This broad patent on Soybeans was allowed precisely

because aggressive corporations and lax governments were pushing the

boundaries in the early days of biotech, allowing exclusive monopoly patents

on all biological products and processes, " explained Shand. " Today,

corporations are grabbing nano-patents on molecular products and processes,

even the chemical elements that make up all of nature. With nanotech

patents, 'Matter Moguls' threaten to control the fundamental building blocks

of nature. "

 

Recipe change: " We fear that the EPO decision on Monsanto's soybean patent

gives comfort to those who want to establish ever wider legal claims -

including matter monopolies, " emphasized Jim Thomas. " Monsanto may have won

an entire species but others are seeking to monopolise entire elements of

nature. Atomic-level manufacturing provides new opportunities for sweeping

monopoly control over both living and non-living matter. " With technologies

converging at the nanoscale, ETC Group warns that efforts to oppose

intellectual monopolies must not be limited to campaigns against the

patenting of life. This issue will be discussed at an upcoming seminar for

policy makers, civil society and the media in the European Parliament in

Brussels on June 11th. " If the recipe is this bad we'll take it back to the

cooks, " Thomas concludes.

 

Seminar in European Parliament: Together with the European Greens, The

Ecologist, Greenpeace, The Dag Hammarskjöld Foundation, Genewatch UK, Clean

Production Action and a cross-party group of MEP's, ETC Group will hold a

seminar on nanotechnology in the European Parliament in Brussels on June 11,

2003. Led by international experts, the seminar will look at both the issues

related to nanotech and intellectual property as well as societal and safety

questions with a view to consider appropriate steps for government

regulation. Speakers include physicist Dr. Vandana Shiva and toxicologist

Dr. Vyvyan Howard. The seminar will be followed on June 12 by a discussion

among civil society organisations in Europe on strategies to address the

issues involved in nanotechnology. For further information please see ETC

Group's website: www.etcgroup.org or contact jim.

 

Note to editors: Although the EPO tribunal decisively ruled in favour of

Monsanto, the panel will not release its written judgment for several more

weeks.

 

For further information:

Pat Mooney, ETC Group (Canada) +1 204 4535259

Jim Thomas, ETC Group (UK) jim +44 (0) 1865 207818

or Mobile +44 (0) 7752 106806

Hope Shand, ETC Group (USA) hope +1 919 9605223

Silvia Ribeiro, ETC Group (Mexico) silvia +52 55 55 632 664

 

The Action Group on Erosion, Technology and Concentration, formerly RAFI, is

an international civil society organization headquartered in Canada. The ETC

group is dedicated to the advancement of cultural and ecological diversity

and human rights. www.etcgroup.org. The ETC group is also a member of the

Community Biodiversity Development and Conservation Programme (CBDC). The

CBDC is a collaborative experimental initiative involving civil society

organizations and public research institutions in 14 countries. The CBDC is

dedicated to the exploration of community-directed programmes to strengthen

the conservation and enhancement of agricultural biodiversity. The CBDC

website is www.cbdcprogram.org.