Gene Patents and Plant Varieties: NSAI v. Monsanto | SpicyIP

Seed Patents

Seed patents are important, as seeds are owned by farmers who have done the hard work over thousands of years. However, once commercial seed industries came into existence, such seed ownership transitioned away from the local farmers, as the large corporations stepped in and hindered farmers’ rights to own and grow their crops.

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Ownership

Plants and seeds can be patented if they are defined by a single DNA sequence that has been created by any one person. The patent itself protects inventors, as no one else can manufacture or sell the patented seed so long as you own the patent to it. Specifically, plant breeders and agribusinesses own such seed patents. Unfortunately, this means that the farmers no longer have ownership rights over the seeds. Some of the most common seed distributors include Monsanto, Du Point, and Bayer.

The Use of GMOs

A majority of non-GMO seeds are patent protected for businesses so that they can recoup their investment costs. Some crops can produce viable seeds that can then be reused and replanted. However, most businesses do not utilize viable seeds. In the past, farmers have used the seeds to replant them in subsequent years.

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Hybridization

Occurs when breeders take 2 related plants and mate them. This, in turn, produces inbred plants, which appear similar to the parent. The inbred plant is considered pure after 7 to 10 continuous hybridization attempts. Therefore, once the plant has become pure, you will not need to patent it if the plant or seed itself is already protected by a patent.

Why patent seeds?

Plants and animals have evolved over millions of years by natural selection and adaptation. Man has learned how to select from this broad biodiversity to breed plants with specific characteristics. Perhaps creating the biggest fruit or the brightest flower. In farming crops, this selective breeding can create a plant best suited to the conditions in which it grows – drought or blight tolerant, for example.

Regulations

Laws exist that control this process of selection and breeding.

The Nagoya protocol, for instance, ensures a fair and equitable sharing of the benefits which arise from the use of genetic resources such as plants. This means that if, for example, you use a wild Chilean strawberry plant to cross breed from, and you make money on the new breed, Chile is owed recompense for providing the original strawberry plant. These laws also protect the intellectual property of the plant breeder and their new varieties.

What about patents?

Plant breeders can apply for a patent on a newly-created plant. As with any new invention, these patents provide ownership of a new ‘product’, to prevent replication, and provide income from subsequent sales.

Seeds and Patents on Life

If a breeder has created a whole new plant species through genetic engineering, he can prevent others from the reproduction, use, sale, and distribution of this newly invented plant. For example, Monsanto has produced plants that are ‘Roundup Ready’, by inserting a single gene that gives the plant resistance to the herbicidal spray Roundup. This single gene gives the plant a unique characteristic that has been defined by altering or inserting a single DNA sequence. For more information about patent seeds please visit Pritish Kumar Halder

Monopoly rights

Agribusinesses, such as Monsanto and Syngenta, frequently apply for patents on the seeds and plants they have genetically engineered. It gives them monopoly rights and subsequently overall seeds, plants, and fruits with the same trait.

Seeds and Patents on Life

European law originally stated that patents would not be granted if a breeder used conventional processes. The argument is that the outcome was the result of a natural process, and that future breeders would also be able to work with the original plants.

So what has changed?

In March 2015, the EU Patent Board granted patents for two plants that had been bred conventionally, not genetically engineered. These were a tomato (which had low water content) and broccoli (which had enhanced glycosylates). This has unfortunately set a precedent for patents to be granted on conventionally produced plants and their seeds.

Patents on plants: Is the sellout of genes a threat to farmers and global food security? | Environment | All topics from climate change to conservation | DW | 03.09.2019

Why is this not a good thing?

If a patent is granted on a plant, the breeder not only ‘owns’ the plant, but gets subsequent rights on all its genetic traits. This is logical if applied to genetically engineered plants, as those plants are defined by the specific trait present only in that species.

Open-cross

If, however, patents are granted on the results of an open cross-breeding process, there will be many traits within the new plant that exists in other plants of the same species. Therefore a single patent, say on a simple cross-bred tomato plant, can de facto cover hundreds of tomato varieties. It will also cover its seeds, and potentially the seeds of other varieties. This could ultimately lead to one patent owner having legal rights to all tomato plants and seeds, for instance.

For the organic grower, indeed for all independent growers, this raises the risk of a legal challenge when saving and swapping seeds. Other worrying consequences are reduced biodiversity, control of growers’ access, and – curiously – will hinder innovation.

Engineered plants

Plants and seeds can be patented if they are defined by a single DNA sequence that has been individually created. For example, a genetically engineered plant has a gene inserted to make it herbicide resistant.

From Seed to the Supermarket By Blake Stewart. Seed Patenting  The patenting of seeds was first permitted under the Plant Patent Act of  This. - ppt download

Authority

Patented seeds and plants are the property of the patent owner – who can restrict their use and distribution. This puts our food supply in the hands of breeders, such as large agribusinesses, not the growers.

European patent laws are changing. It used to be that the results of conventional breeding processes were not patentable, but as of a ruling in 2015, they now are. This negates the whole intention behind the patenting process (known as Article 53b) and opens a wider pathway for patent granting.

Who grants plant patents?

The European Patent Office (EPO). It is funded by the fees from patent applicants – such as Syngenta and Monsanto – and it is not answerable to the EU justice system. Instead, we have a closed shop system, where the EPO benefits from applications. Indeed it is in its vested interest to invite and grant patents.

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Independent organizations such as No Patents on Seeds and Garden Organic are fighting to maintain the ruling that natural breeding processes cannot be patented and to make the EPO made more accountable. To date, the European Commission is sympathetic.

Benefits

There are many benefits to patenting seeds, including the fact that, once you receive a patent on your seed, you’ll be protected from replication. Even if another breeder creates a new plant through reproduction, this amounts to infringement.

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Disadvantages

  • Many activists argue that GMO seeds are bad, and should not be used in plants/seeds that will then be sold to the public.
  • Patenting seeds prevents farmers from saving or even exchanging seeds.
  • Patenting seeds create monopolies, which prohibits the farmer’s free choice of how to grow and plant. Furthermore, farmers will be pushed out of this market, leaving large agribusinesses free to determine the price of seeds.
  • Large companies who hold patents can insert genes into plants.
  • A seed itself is not an invention.
  • Seeds are continually creating and recreating themselves.
  • Patenting seeds is based on biopiracy, which, in most countries, is considered illegal.
  • Patents on seeds allow these large corporations to sue farmers after the GMO is owned by such corporations.
  • Corporations will contaminate farmers’ non-GMO crops.
  • The ownership of such GMO-induced seeds threatens food security and biodiversity.

Recent patent applications in beverages enriched with plant proteins | npj Science of Food

Exclusive rights

Once the corporation takes over the GMO-induced crop, the corporation can obtain a patent on it, and thereby, has exclusive rights over any reproduced version of the seed. This leaves little to no ability for farmers to do their jobs. Furthermore, for example, if a corporation owns the rights to a tomato plant, any tomato plant varieties made thereafter are protected by the corporation. This will lead to a significant amount of infringement issues.

  • Corporations can charge farmers a license fee if the farmer chooses to continue growing the crop that is patented by the corporation. More importantly, the patent holder must approve of the farmer’s breeding of the crop.
  • Due to the reduced diversity of crops, the crops have little ability to adapt to changing environmental conditions.
  • A lot of the time, farmers will enter into written agreements with patent holders (large businesses) so that farmers can have the ability to continue growing their crops, without having to worry about infringement suits down the line.
  • Some plant patent holders grant licenses to academic researchers, who can conduct further studies and research into the crop itself.

Legal assistance

If you need help with applying for a seed patent, or if you need legal assistance with bringing or defending a patent infringement case on a seed patent, you can post your legal need on Up Counsel’s marketplace. Up Counsel accepts only the top 5 percent of lawyers on its site. Lawyers on Up Counsel come from law schools such as Harvard Law and Yale Law and average 14 years of legal experience, including work with or on behalf of companies like Google, Menlo Ventures, and Airbnb.

Reference

https://www.gardenorganic.org.uk/seed-patents-explained#:~:text=Patents%20are%20used%20by%20plant,use%20of%20their%20patented%20seeds.

https://www.upcounsel.com/seed-patents