[Guest Post] Monsanto’s conspicuous African cotton patent

This guest post, addressing Monsanto’s OA18791A patent, is brought to you by Lodewijk Van Dycke. Lodewijk is a PhD candidate and affiliated researcher at KU Leuven Centre for IT & IP Law (CiTiP) and a scholarship holder at Max Planck Institute for Innovation and Competition. His main areas of research include law, agricultural policy and international development. 

Here’s what Lodewijk writes: 

Monsanto’s conspicuous African cotton patent 

by Lodewijk Van Dycke

This article is about Monsanto’s OA18791A patent. The initials OA give away that the patent is an OAPI patent. OAPI (Organisation Africaine de la Propriété Intellectuelle) is an IP organisation that has subsumed the IP competence of 17 West and Central African countries. The closing initial A suggests the patent is just an application, but this is not true. OAPI granted the patent on 31 May 2019. It belongs to a patent family whose priority goes back to the US provisional patent application US62/249,758 or US201562249758P. The PCT number of the family, which includes applications in the EPO, China and Australia, is WO2017079266A1. 

Patents sometimes provide controversial legal rights. One contested issue has been the triangle genetically modified (GM) crops – Monsanto – patents, especially in the global South. In the words of activist Vandana Shiva: 'Farmers are dying because Monsanto is making profits—by owning life that it never created but it pretends to create. That is why we need to reclaim the seed. That is why we need to get rid of the G.M.O.s. That is why we need to stop the patenting of life.' 

I have argued that the controversy around patented GM crops is beside the point because patents with field-level effects that influence smallholder farmers’ freedom to operate are seldom allowed, almost never registered and rarely used. This post is about the almost. While researching my forthcoming PhD about the political economy of patents on agrobiotechnology in West Africa, I came across just one current patent that is problematic from the point of view of African seed systems: OA18791A. Understanding why this patent undermines the socio-economic sustainability of West African rural livelihoods requires insight into the political structure of West African agriculture. 

OA18791A 

The title of OA18791A is ‘Cotton transgenic event MON 88702 and methods for detection and uses thereof.’ The patent relates to an improved version of Monsanto’s insecticidal genetic modification technology. Monsanto introduced genes from Bacillus thuringiensis (Bt) into certain cotton varieties. Bt is a soil bacterium that produces proteins – here, Cry51Aa2 – toxic to insects that feed on cotton – here, to Lygus hesperus and Lygus lineolaris. GM Bt cotton also produces said proteins. MON 88702 has not been approved for field use in West African countries yet. 

Even at face value, the patent is pernicious because its claims are not limited to either Bt genes or proteins but encompass the cotton plant and plant parts, including seeds (Claims 8-12, 17, 23 and 27). Accordingly, the patent could have field-level effects and interfere with farmers’ seed saving. This is allowed because Article 6.c Annex I on patents to the 1999 OAPI Bangui Agreement only rules out the patentability of plant varieties, not of plants. Article 27.3.b TRIPs Agreement allows WTO members to exclude from patentability both plants and plant varieties, but OAPI has chosen not to exclude plants from patentability, although Article 27.3.b was negotiated primarily by and on behalf of developing countries. Meanwhile, Claim 16 pertains to an essentially biological method for the production of plants, i.e., crossing and selection. Such inventions should in principle not be patentable in OAPI on the basis of Article 6.c Annex I. 

The really extraordinary claims are the ones that extend patent protection to GM agro-industrial products. Claim 18 reads: 'A nonliving cotton plant material comprising a detectable amount of the recombinant DNA molecule of claim 1.' Claim 21 reads: 'A cotton commodity product comprising the recombinant DNA molecule of claim 1.' Claim 22 strengthens claim 21 by stipulating that the commodity product can be fibre, oil, oil derivatives, animal feed, paper, candle wicks, rope, fuel etc. 

Burkinabe Bt cotton 

To understand why Claims 18, 21 and 22 are problematic, it is pivotal to understand Monsanto’s West African experience as well as the structure of West Africa’s cotton sectors. 

The only African country where Bt cotton was grown at scale for a longer while is Burkina Faso. In 1999, the Burkinabe Government was desperate because of insect-induced cotton yield losses. Cotton was Burkina Faso’s main export product and remained the primary cash source for its farmers. Eventually, Burkina Faso granted Monsanto permission to introduce Bt cotton in Burkinabe fields. Between 2008-2015, the technology was upscaled to 70 percent of the Burkinabe cotton areal. After disputes between Monsanto and the Government about cotton fibre length (a determinant of international cotton prices), Bt cotton was no longer grown from 2016 onwards. Burkina Faso has become the showcase for how GM crops can or can(not) benefit African smallholders. 

How did Monsanto manage to dominate the Burkinabe cotton sector without losing control over its agrobiotechnology? It was not through IP, which played a meagre role throughout the episode. Monsanto-related companies seem to have held only three relevant patents in OAPI throughout the period (OA10888A, OA11257A and OA11258A), none of which was used vis-à-vis GM cotton. 

Filière system 

In 1945-1960, the French installed a vertically integrated cotton value chain or ‘filière’ system across West Africa. Colonial cotton firm CFDT distributed seeds in exchange for farmers’ promise to sell back their cotton against a fixed price. The contractual promise to sell back was enforceable because of CFDT’s geographical monopoly, which reduced possibilities for side-selling, i.e., cotton sales to third firms. 

The security of the filière system allowed farmers to plan one season ahead and cotton firms to invest in the cotton value chain, including in new varieties. Cotton firms provided credit and fertilizer also used for other crops. Cotton networks served as conduits for infrastructure and other development projects. After 1970, CFDT was nationalised in most former French colonies. In Burkina Faso, it became Sofitex. CFDT (currently Advens-Géocoton) continued to manage research, exporting and finance. The filière system, tying farmers to monopolistic cotton firms across West Africa, has not changed fundamentally, not even after cotton firms were partly privatised in the 1990s. 

Against this setting, Monsanto and Bt cotton entered Burkina Faso. Monsanto concluded an agrobiotechnology licensing contract with its Burkinabe counterpart, AICB, which groups INERA (Burkina Faso’s national agricultural research institute), the Burkinabe cotton farmers (see UNPCB) and cotton firms Sofitex, Socoma and Faso Coton. Eventually, all these organisations are controlled by the Burkinabe Government. The cotton firms collectively inherited CFDT’s territorial monopoly. Cotton farmers must buy inputs from and sell cotton to Sofitex, which keeps control by fixing prices and providing seeds free of charge at the point of delivery. 

Just by contracting with AICB, Monsanto could capture the cotton areal. The licence remains secret but allowed AICB to use Monsanto’s technology for fees equalling 28 percent of the increase in cotton revenues. Via the licence and the hierarchical, anti-competitive filière system, Monsanto could adequately control its agrobiotechnology, especially because it had full diplomatic backing of the US embassy. Vis-à-vis farmers, control was cemented because saving cotton seeds necessitates separating lint and seeds. This requires gins, which farmers lack.

However, while Monsanto could use the filière system to control the cotton sector together with the Burkinabe Government, the Government eventually used the system against Monsanto to get the company out of Burkina Faso swiftly. The filière system is similar across francophone cotton producing countries (Mali, Ivory Coast, Benin etc.). Many of the (dis)advantages of the centralised structure can thus reproduce themselves across francophone West Africa. 

The danger 

GM crops are currently field tested in a host of West African countries. Monsanto - currently taken over by Bayer - might have learned the lesson not to rely on the filière system alone to safeguard its technology but also on IP. OAPI and its technocratic, Yaoundé-based IP system are a way to bypass national governments, which is cumbersome because politicians and administrations endeavour to control economic activity, especially regarding cotton. 

I believe it is in this light that Monsanto decided to file WO2017079266A1 in OAPI, too. Claims 18, 21 and 22, which claim downstream agro-industrial products, extend Monsanto’s rights from the lab to the field to ginneries, oil factories and ports. These are the backbone of the filière system. National cotton firms (Sofitex), trading firms (Advens-Géocoton) and research institutes (CIRAD) long managed to support the loss-making parts of African cotton cultivation (plant breeding, extension services) because they capitalised on the lucrative parts (manufacturng, export). The extension of IPRs to manufactured goods is an assault on the integrity of the filière system, on which more than 10 million smallholders rely in the volatile Sahel zone. 

Exhaustion 

To the extent that today’s OAPI patent law is actually implemented, cotton-producing countries will have to work with OAPI to establish a proper exhaustion regime. The OAPI principles for the material exhaustion of plant variety protection rights (Article 31.a Annex X 1999 Bangui Agreement) have not been extended to patents. Under the current Bangui Agreement – revised in 2015 without relevant changes – it is possible to patent plants and agricultural produce. Altering this would require a potentially unfeasible treaty revision, which would entail finding agreement among 17 sovereign states about a key substantial point of patent law.

What seems feasible is confirming the legal principle – either via OAPI guidelines and legal practice, or in a member state court or via legal doctrine - that once patent rights have been exercised vis-à-vis a batch of seeds, they have been exhausted. Accordingly, they do not apply to the plants resulting from those seeds and most certainly not to the agro-industrial products made out of those plants. Firms like Monsanto might be able – given the existence of the TRIPs Agreement and the current state of global patent law – to charge African farmers for their technology. But they cannot be allowed to do so twice. Above all, they should not be allowed access to the boardroom of the filière system, where African executives should be in charge to maintain the autonomy and integrity of the legal institutions that support rural livelihoods in the Sahel.

Photo courtesy: Liena's sister