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Wednesday, 26 February 2014

Patents and GM crops: a reader asks ...

A reader of this weblog, whose identity is known to this blogger but who asks to be referred to, modestly, as "Pedestrian", has some big questions to ask, questions that may produce quite different answers as between different countries.  There's more here than this Kat can confidently answer, so he is happy to put the questions before his readers. Pedestrian writes as follows:

Over the years there have been a number of IPKat posts about genetically modified (GM) crops and patent laws (for example here). And there are a lot of other, often confusing, articles on this subject on the web generally. That's why I'm hoping you can help to clarify a few questions.
Right: genetically modified -- but will he fly?*
Given that there is good evidence that unintentional cross-pollination between non-GM crops and GM crops of the same species can happen (see New Scientist, here)  Can you or your readers answer the following questions?

First question

The ability to kill weeds without killing the crop is the advantage of Roundup-resistant crops. And the obvious proof that the farmer knew that the crop that he had planted had the gene for resistance to Roundup is that the farmer subsequently sprayed Roundup on that crop.

Have there been any cases of farmers being prosecuted for infringement, where there was no evidence that the farmer had used Roundup on that crop? And technically, could a farmer be prosecuted for growing a cross-pollinated Roundup-resistant crop, without evidence that the farmer had used Roundup to kill selectively the weeds growing in among that crop (ie a situation where there was no evidence of advantage to that farmer?)

Second question

The advantage of other GM crops, such as those containing the gene for the bacillus thuringiensis toxin, is that farmers do not need to use much in the way of pesticide spays on their crops: the plants have a built-in bug killer. In the case of these crops, proof that a farmer knew that his saved seeds contained unlicensed 'bug killer' genes should be trickier to establish.

Have there been any prosecutions of farmers regarding the planting of cross-pollinated second generation crops that need less or no pesticide? 
Third question 
In 2009 Scientific American famously reported that the sales contracts for GM seeds prohibited sale of these seeds for independent scientific research. Since then, the GM crop companies have significantly liberalized their policies regarding independent research into the 'behaviour' of GM crops in the environment.

However, is it still technically possible for a holder of a GM crop patent to use that patent to filter who can, or cannot, do research into that GM crop's behaviour, in the environment?
Come on readers, let's be hearing from you!

* "7 SUPERHERO CATS FIGHTING FOR JUSTICE AND CATNIP FOR ALL", by Kellie Foxx-Gonzalez, The Mary Sue, here

5 comments:

Roufousse T. Fairfly said...

The ability to kill weeds without killing the crop is the advantage of Roundup-resistant crops.

But this idea is unfortunately subject to the exact same problem as antibiotics: like bacteria, weeds progressively acquire resistance through random mutations and selection. The seeds are not only useless, but the pesticide is lost to the world.

For example, this nearly ten-year old report already listed about a dozen glyphosate resistant weeds. This issues is also acknowledged by the seed merchants themselves.

And the obvious proof that the farmer knew that the crop that he had planted had the gene for resistance to Roundup is that the farmer subsequently sprayed Roundup on that crop.

There would be in such a case infringement of a method claim in addition to the one directed to a GM-seed or the plant derived therefrom. But you would still need to establish that the herbicide was used with the seed as claimed.

And technically, could a farmer be prosecuted for growing a cross-pollinated Roundup-resistant crop, without evidence that the farmer had used Roundup to kill selectively the weeds growing in among that crop (ie a situation where there was no evidence of advantage to that farmer?)

These are exactly the circumstances of the Schmeiser case mentioned in the aforementioned blog entry. You can look it up.

The advantage of other GM crops, such as those containing the gene for the bacillus thuringiensis toxin, is that farmers do not need to use much in the way of pesticide spays on their crops: the plants have a built-in bug killer.

Again, the product does not hold its promise. There are increasingly cases of pest-befallen Bt-cotton, and this phenomenon is also being observed in other Bt crops. For example, German TV recently reported Bt-maize crop failures in Brazil (the pictures in the first are graphic enough and don't require language knowledge).

Farmers must apply expensive pesticides in addition of having already paid a hefty premium for the seed. The manufacturer could potentially be seen to be liable for its seeds, but I bet that the "license contracts" already cover that possibility.

However, is it still technically possible for a holder of a GM crop patent to use that patent to filter who can, or cannot, do research into that GM crop's behaviour, in the environment?

Many jurisdictions have research exemptions for patents. The question would then be to find out which one has precedence: the law or the contract language? That's a question for a lawyer.

Anonymous said...

One aspect that seems to be missing from the discussion is the fact that the pesticide itself was once patented and that patent has run its course and the item is in the public domain - free to use by all.

How is any tie to the now-free pesticide not indicative of a case of illegal tieing?

Anonymous said...

"Many jurisdictions have research exemptions for patents."

In the US, the research exemption seems to have grown a bit fuzzy. The original exemption for research was very limited in order to protect the patent holder. The only types of research allowed were either to prove the claim (direct with no other benefits), or for personal curiosity (again, with no other benefits). Modern research simply is not conducted for these ends. Research - even for potential design arounds - that violate the patent should fall outside of the research exception because the fruits of that research directly impact the fruits of the patent and its holder by diminishing the market.

This is NOT to say that designing around was discouraged or not wanted - but there is a difference between the research exception and exploiting the patent item to 'rob' the patent holder of his full reward. The research exception was explicitly geared away from any commercially exploitation.

Roufousse T. Fairfly said...

How is any tie to the now-free pesticide not indicative of a case of illegal tieing?

Through claims of the "method" or "use" category, which may be indirectly infringed by the supplier of the herbicide, or directly by the grower.

Case in point. Monsanto's EP889692B1 has been maintained as granted at the end of the appeal in opposition proceedings.

IMO, its relevant claims are:

1. Use of glyphosate or a derivative thereof for the increase of crop yield, characterised in that the crop is selected from glyphosate tolerant sugar beet, fodder beet, corn, oilseed rape and cotton, and that glyphosate is applied at a usually lethal dose.

6. Use of glyphosate or a derivative thereof according to any of Claims 1-5 to increase the yield of beet, oil seed rape, cotton or corn crops, made tolerant to glyphosate herbicide.


(I would have expected such claims to be included in the patents for the GMO seeds. These claims covers even crops obtained by non-infringing seeds, as long as they're glyhosate-resistent).

Skimming over the decision T729/05, the board apparently accorded a great weight in the expression "for the increase of crop yield" in combination with a "lethal dose" (To what? The crop or the weed?).

Anonymous said...

It's worth taking a look at this Monsanto webpage "Myth: Monsanto Sues Farmers When GMOs or GM Seed is Accidentally in Their Fields"
http://www.monsanto.com/newsviews/pages/gm-seed-accidentally-in-farmers-fields.aspx

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