Seeds of Conflict
"Seeds are software. And we have the seeds."
Alfonso Romo Garza, owner of Empresas La Moderna, a Mexico-based seed company that controls 25 per cent of the global vegetable seed market.
Thirty-four-year-old Marvin Redenius is president of a small farm-supply dealership in Belmond, Iowa, USA. Redenius is also a man of principle and does not scare easily. Many are now seeing him as an unlikely hero who could single-handedly halt the increasing global corporate control of the world's seeds. It all started last year when his small company, Farm Advantage, resold corn seed 'belonging' to the biotechnology firm Pioneer Hi-bred International, and found itself being sued by pioneer for violating its patents.
Redenius and his lawyer decided to fight the Pioneer (now merged with DuPont) lawsuit, and this David-v-Goliath battle is now sending shock waves through global agribusiness. What bothers the transnationals most about the suit is Redenius's straightforward defence. He claims that plant patents are invalid and illegal, because they contravene a law passed by the US Congress in 1970 which is still in effect and which expressly prohibits the patenting of any plants grown from seed. If Farm Advantage's defence is successful, companies such as Pioneer will no longer be able to seek patent-protection for plants. Moreover, the thousands of patents on plants already granted (including virtually all genetically engineered plant varieties) would be invalid.
Clearly, the international stakes in this suit are high. Today the world's top ten seed companies control approximately 32 per cent of the worldwide $23 billion seed trade. Most often they establish economic control of these seed varieties by patenting them. Patenting is also the key to biopiracy, as the major seed companies find and expropriate traditional indigenous varieties of seed, 'improve' them, often by making minor alterations, and then patent and commercialise them. This eventually results in the large transnational corporations selling back the patented seeds to the communities that initially provided them. Biotechnology companies are also highly dependent on patenting to maintain absolute control over the use, sale and reproduction of their novel plant varieties.
The patenting of seeds, or any life form, is relatively recent. Over two hundred years ago the United States passed its first Patent Act. From that time until 1980, nearly five million patents were granted. None was for a life form. It was understood that life forms were "products of nature" that could not be patented. However, in 1980, a 5-4 decision in the US Supreme Court - the 'Chakrabarty case' - changed the patenting-of-life picture in America, and consequently across the world. This unfortunate and misguided decision allowed for the patenting of a genetically-engineered bacterium, engineered by General Electric to eat oil. While the Chakrabarty decision was the first to allow the patenting of a life form, the decision was vague on how far the extension of life-patenting could go. It also explicitly noted that life forms could not be patented if the US Congress had provided other-wise.
The granting of full patent-protection for seeds in the USA began in 1985 when the US Patent and Trademark Office (PTO) unilaterally, and without Congressional approval, expanded the holding in Chakrabarty and extended full patent-protection rights to sexually reproducing plants (plants grown from seed). This PTO regulatory action seemed openly to contradict a law passed by the US Congress in 1970. At that time Congress enacted the Plant Variety Protection Act (PVPA) which provided a means for plant breeders to protect their new plant varieties grown from seed. However, the PVPA specifically rejected full patent-protection for these plants. Instead it enacted a significantly less monopolistic form of intellectual property protection - a plant variety certificate, which provides numerous exceptions to the protection, including a farmer's exemption allowing growers to save and reuse seed and a researcher's exemption, allowing plant breeders to use a protected plant variety to create new varieties.
The Farm Advantage case is the first to challenge the PTO decision on plant-patenting as an illegal usurpation of the powers of Congress. In the 13 years in which it went unchallenged, the PTO decision revolutionised plant-patenting, allowing companies such as Pioneer to obtain full Patent Act protection over their new plant varieties. Plant varieties could now be patented in exactly the same manner as different varieties of toaster or tennis racquet. The PTO now treated plants no differently from machines.
For over a decade the United States has been trying to globalise the 1985 PTO decision and force full plant-patenting on all the nations of the world. It sees this patenting push as key to ensuring international enforcement of US plant patents and for its ability to 'pirate' and patent germplasm of developing countries. US pressure for plant patents may have reached an apex in 1994 during the Uruguay Round of negotiations of the General Agreement on Tariffs and Trade (GATT). Then, the United States insisted that the trade agreement provided intellectual property protection, including protection for plants. The resulting Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS), arrived at only after significant negotiations, was only a partial success for the United States. TRIPS did mandate the patenting of microbes but (under Article 27.3[b]) allowed for nations to avoid patenting plant varieties, specifically allowing alternatives to such patent-protection.
Many countries have taken advantage of this Article 27 exception and passed legislation that provides alternative protection for plants. This raises the ire of the United States which continues to oppose this exception and exert significant pressure on the international community to allow for the patenting of seed varieties. The exception comes up for a mandated review in 1999 by the TRIPS Council. It is certain that the United States will strongly argue that this exception be eliminated.
With the future of 21st century agriculture at stake, it is clearly time for the larger activist community to become involved in the fight against the patenting of seeds. The next months will be critical. Oral arguments in the Farm Advantage case, now at the Court of Appeal for the Federal Circuit, will probably take place this summer, with a decision in the case likely by late autumn. Meanwhile, the World Trade Organisation's ministerial meeting in Seattle in November 1999 will be conducting the five-year review of the plant-patenting provisions of TRIPS.
The significance of these decisions for the future of agriculture, biodiversity and the small farmer, both in the United States and the world, is hard to overestimate. Increased international grassroots pressure on legislators and regulators urging them to oppose plant-patenting, a series of organised court challenges to plant patents, new alliances between farmers and consumers against corporate control of seeds, are some of the steps urgently needed if the agribusiness drive to patent the world's seeds is to be halted.
