Garrett (garote) wrote,


It's big. I'd put it behind a cut, but I think it's too important.
"Monsanto again. They sure don't give up. First they manufactured Agent Orange (and happened to add a dioxin). Then they almost managed to poison America using Bovine Growth Hormone (in milk). Then there is Roundup (carcinogenic) and their new Roundup ready crops. And their so called terminator seeds, designed not to reproduce viable offspring, seedless or infertile."

Patent law offers a "plant patent", covering plant varieties that are produced asexually. By "produced", the law only refers to the means by which the hybrid variety was first created - not the means by which it naturally reproduces. This asexuality rule was inserted as a means to prevent people from patenting an unstable creation: As long as the plant is reproduced asexually, its genetic composition remains exactly the same, and your patent only covers that one variety. When the law was first drafted in 1970 you could create a patentable variety by "rooting of cuttings, by layering, budding, grafting, inarching, etc". Most of these Frankenstein approaches produced seeds that didn't even carry the essential alteration, making the patents less subject to violation.

The wording of the law conjures up an image of a handful of devoted gardeners fawning over weird foliage in a greenhouse, getting a patent, then selling little seedlings by the dozen to interested locals. The image implies that if legal action is required, it's between two farmers settling a dispute over what they sell to each other. With a company like Monsanto involved that image is inadequate. It's not asexually reproduced seedlings going out the greenhouse door, but seeds, in huge plastic bags - bags big enough to sow tens of thousands of acres with genetically identical plants, all of which can sexually cross-pollinate and produce seeds of their own.

The main issue here is not whether the GM canola is safe or not (this analysis has been carried out before its commercialisation) but whether Monsanto should be deemed responsible for introducing into the environment a GM construct which has the potential to self-replicate.

Against Monsanto, the "plant patent" law inadvertently places conventional farmers at a permanent legal disadvantage. The farmer's typical plant-harvest-store cycle is the sexual reproduction cycle, which encourages genetic variation. Therefore, none of the cross-breeding that occurs through it could be considered innovation, even if it happens to result in a distinct new variety of seed. So when Monsanto trespasses onto a farmer's land and gathers a sample, then finds their genetic component inside the seed, the farmer has no legal way to counterattack. He can't claim that Monsanto is violating his own property rights - physical or intellectual - by polluting the DNA in his own personal seed store, which he may have developed for a century or more to grow healthy on his land. Monsanto has a patent; he can't get one. The only difference is the means by which they developed their seeds.

(In the 2004 draft of the plant patent law, the "asexual reproduction" clause has been watered down even further. Now that section just refers to anyone who "invents or discovers and asexually reproduces any distinct and new variety of plant". Regular seed farming is still excluded, and whatever precedent there was to resist genetic engineering has been paved over.)

So if their product replicates itself and spreads even where it is not wanted, why isn't it treated as a pollutant, instead of infringement? Why can't a farmer call up Monsanto and say, "Your damned wheat has cross-bred with mine, and I want you to come out here and personally remove every stalk of this lousy hybrid from my land"?

Well, in their infinite charity, Monsanto has claimed that they will remove any unwanted crops that spring up on a farmer's land "for free." What this amounts to is, they will come and destroy your entire crop - since there's no feasible way to separate "your" plants from "theirs" - including your seed stores, leaving you with nothing. You either submit to a genetic cleansing, or submit to a lawsuit for patent violation. Either way, you lose.

"Monsanto has set aside an annual budget of $10 million and 75 full-time staff devoted solely to investigating and prosecuting farmers."

Farmers are supposed to be protected from this kind of extortion. A separate entity from the US Patent Office, the Plant Variety Protection Office, was erected specifically to cover seed farming. It offers patent-like coverage for plant varieties that are reproduced sexually, but makes a clear exception to their coverage for farmers: They "allow the saving of seed for the sole use of replanting the farmer's land. Neither plant patents nor utility patents provide these exemptions." Even if Monsanto only had protection from the PVPO, they could still enforce the "don't save seeds" rule through contract -- but at least they would be prevented from prosecuting farmers whose crops got accidentally polluted. At most, they could track down and sue the originator of the pollutant.

"They ought to or should have known that it would contaminate. They knew it would and now it's out of control."

So why isn't Monsanto restricted to the PVPO? How did they manage to get an actual patent? Apparently, the loophole is that a genetic sequence inside the cells of the plant is separately patentable from the plant itself, even though the two things are inseparable in terms of the application of the invention. It doesn't make any sense ... but that's why they call them loopholes.

"Monsanto is the world's only GM soybean superpower, a single company has been awarded monopoly control over one of the world's most important food crops."

The only novel portion of Monsanto's end product is the combination of genes inside the seed. (Not even the gene sequences themselves - they were cut and pasted from other preexisting organisms.) Anyone who claims to have invented the mechanical process of plant growth is obviously deranged - that process was developed over billions of years, and was underway long before the dawn of man. Regardless of this, the US Patent office gave Monsanto a patent for the whole seed. If the mechanics of seed reproduction and growth had been invented by some company, Monsanto would have had to license the technology, but instead the information was in the public domain, so their patent stood unchallenged. They have systematically leveraged the uncommon broadness of that patent to lay claim to a publicly owned process, on a semi-permanent basis.

This is a bizarre situation, which requires that we ask a bizarre question: Is a patent "viral"? If the genetic configuration of a seed is patented, does that patent also cover the self-replicating nature of the seed - a mechanism that's in the public domain and has "prior art" of billions of years? If Monsanto sells a farmer a year's supply of seeds, and the farmer plants it all, harvests the wheat, gathers the seeds from that crop, and then sells them to his neighbors, is he violating a patent? Or selling a product that is now 100% his own property? The genetic configuration of that second batch of seeds is probably the same as the ones Monsanto sold him - but the materials, the time, and the process used to replicate that second batch from the first are all either owned by the farmer, or in the public domain. (Farmers have been doing it for tens of thousands of years. It's called farming.)

Currently the legal system is flailing to come down somewhere in between, but the question is actually moot: To legally use Monsanto seeds, a buyer must sign a contract declaring that they will not save the seeds their crop produces. They must ignore and avoid a useful attribute of the product sold to them - and after a year they find themselves addicted: With no seed stores of their own, their personal breeding program is ended. They no longer have the genetically customized variety they had before making the switch. If they leave Monsanto, they'd be forced to downgrade to a more generic, inferior seed from somewhere else, and take relative losses from that point on.

Does this sound fair to anyone? The law has been interpreted to disallow farmers from using a naturally occurring process of genetic adaptation, in order to coddle and protect a crude, expensive, erratic, and evidently dangerous new industry. The two systems can be legally compelled to respect each other, but instead, Monsanto has spent millions of dollars lobbying to perpetuate an obvious abuse of patent law, and has gone mostly unchallenged. In Canada it is actually illegal to patent a seed - there is no "plant patent" or equivalent - but a recent court case there has upheld Monsanto's patent on the genes inside a seed, and destroyed the livelihood of several farmers by burying them in fines and legal fees.

"If the technology is not licensed to anyone else - neither of these companies is known to widely license technology - then they are able to effectively stifle other companies from entering the transgenic plant field"

Is it just a problem of scope? Do people believe that Monsanto should be treated preferentially, or is being unfairly targeted, because it is "big business", and therefore vital to the economy? Let's narrow the scenario down to a single product on a single farm, and see if it makes any more sense.

What if Farmer Bob accidentally breeds a chicken that lays square eggs? Can he be granted a patent for that poor constipated chicken's gene sequence? Under current patent law, no: You can't patent an animal. What if Bob has access to a lab, and is smart enough to isolate the exact sub-set of sequences that cause the eggs to come out square? Could he get a patent for just that sequence? Under current legal precedent, yes.

(You could extract the sequence and print it out on paper, and that would be theft of trade secrets, but not a patent violation: Patents are about inventions and processes, so the gene sequence would have to be inside a chicken to trigger a lawsuit. That's the precedent, at least.)

So now he has a patent for a special gene sequence that is inextricably buried inside the cells of an otherwise ordinary chicken. The chicken manages to lay a dozen square eggs. Now the farmer has a dozen copies of the sequence, thanks to the reproductive nature of farm animals.

Farmer Bob sells his square eggs to his neighbor, Farmer Fred, assuming he'll just make a big omelette and eat them. But instead, Farmer Fred hatches them and mixes the baby chicks in with the others in the back yard. A few seasons later, the chickens are all laying square eggs (and spending a lot of time grousing about it and sitting in the pond.) Farmer Fred isn't selling them, but he is eating them, and they stack up nicely in his fridge. Could Farmer Bob sue Farmer Fred, based on the patent, and demand royalties for every square egg laid on his farm? Could he demand that his neighbor purchase a "license" to use "square egg technology"? His chickens are reproducing like every other chicken on earth does. That property is not original - nor is it covered by the patent. Farmer Fred has worked hard to shelter, feed, and water his chickens. Could Farmer Bob order them destroyed, to stop the "illegal" reproduction of his work? At what point does the ASPCA get involved?

Modern patent law has allowed a multi-billion-dollar industry to develop based on this very scenario. If the chicken farmer had to sign a contract like the Monsanto one, he would not be allowed to lets his own eggs hatch. If he accidentally sold a fertilized egg, he could be sued. And an egg, like a seed, doesn't just contain the ability to reproduce itself - it is actually compelled to reproduce itself. If favorable conditions are present, it will reproduce, or die trying. Requiring a contract that disallows a seed from growing or an egg from hatching is pretty good legal grounds for entrapment. At the very least, the Monsanto contract is a shaky one.

"But DNA is nothing more than a program designed to preserve itself."

Compare this to a software company like Microsoft, winning a "patent" for Windows XP - not a patent for some functionality of it, but a patent for the product itself - and then claiming ownership of every computer that Windows is installed to. You buy a computer, you take it home, you install Windows XP on it - and that computer is now owned by Microsoft, not you, and any physical property rights you may retain would be strictly outlined in the EULA on the box, and the result of your "licensing fee", paid when you purchased the patented software.

Any idiot in the software business knows that patents in software cannot legally work that way. Microsoft cannot legally take your computer from you in a click-through EULA. So why would we allow a patent on the "software" inside a cell, which directs plant growth and reproduction, to have this kind of power? The contract that Monsanto requires its customers to sign is damning, and the case for entrapment is there, but what about the farmers who signed no contract and whose land has been infested with this viral product? This is akin to Microsoft secretly uploading the Windows source code to a hosting company in another state, and then serving them with legal papers. Not only would it be transparently evil, it would be fantastically boneheaded - since any idiot with a terabyte of hard drive space could download and hack at it in the meantime. (Good for open-source, bad for Microsoft.)

Which leads to another interesting question: Since genetic engineering is essentially the accelerated and/or hijacked mutation of public-domain plants and animals, is genetic research a good fit for an open-source or GPL licensing system?

The genetic content of all organic life on this planet is a vast body of knowledge that has been in the "public domain" long before anyone was technically capable of reading it. But while the ability to read that genetic code directly is a very recent innovation, breeders and farmers have been actively shaping it for millennia. By refining their crops and inter-breeding, they have been commercially successful since the advent of trade. Ranchers have been able to turn a decent - but not legally guaranteed - profit by renting access to prize bulls and raising unique breeds. By contrast, they have only been allowed to patent their products (via plant and gene patents) for the last 35 years.

Every breeder knows that they're distributing the "source code" to their work with every unit sold. It's not a case of reverse-engineering: Just poke the seed into a pot and dump water on it, and that's it. You've got another copy. The product wants to make more of itself. And yet, breeders continue to do what they do. There must be some profit made, something to be gained from the process. What is it? Compare it to the software model, and the answer is clear: Even if you gave your source code away for free, you still retain your mastery of the codebase. Nobody knows it like you do. Nobody can provide a better support contract, better accessories, and better maintenance than you can.

To apply an open-source approach to genetic engineering, you only need to make one change: Revoke and disallow patents on living organisms, including their genetic makeup. Monsanto would no longer be able to patent their seeds, but would still retain their profitability: They would retain their patent on Round Up chemical sprays. After all, a Monsanto-bred crop is defenseless without a steady supply of Round Up to keep it pest free.

"Congress amended the Patent Act in 1999 to allow greater participation of third parties in reexams; this new procedure is called inter partes reexaminations.  It was immediately clear that certain provisions of the law - especially the limitation of the requester to appeal the outcome - meant no patent lawyer would recommend the procedure. "
"Monsanto is confident the carefully written decision by the District Court will be upheld in any appeal," said David F. Snively, associate general counsel for Monsanto.

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