Patents on Seeds and Animals,
Eggs & Bacon, Tomatoes and Melons
November 2011
Dr. Christoph Then
www.no-patents-on-seeds.org Info@no-patents-on-seeds.org
History of patent law
English patent law of 17th century was about granting privileges by the crown
the markets of salt, steel, glass, beer and others were controlled by 'patent' monopolies
History of patent law
Modern patent law: granting patents for technical inventions
Not meant to cover discoveries or natural phenomena but to foster new inventive technical processes and products
Nowadays: Patents are granted on gene sequences, plants and animals ...
Shift of paradigm: from protection of inventions to control on resoures
History of patent law: Examples
1980: bacteria (USA)
1988: 'oncomouse' (genetically engineered mammal) (USA) 1992: 'oncomouse' (Europe)
1996: genetically engineered soy (Europe) 1998: European Patent Directive 98/44 EC
2001: human gene for hereditary breast cancer (BRCA) (Europe) 2002: patent on conventional broccoli (vegetable) (Europe)
2008: patent on conventional breeding in pigs (Europe)
2010: EPO decides about conventional breeding (G2/07; G1/08) 2011: EPO forwards tomato patent to Enlarged Board of Appeal
general problems with
>patents on life<
• ethical reasons: living nature is not a technical invention
• scientific arguments: a gene sequence is not a normal chemical substance but a code of information with a lot of different functions. A holder of a patent which describes one commercial use should not get a monopoly on all possible functions.
• social and economic reasons: Patents can block access to genetic resources. This is a problem in agriculture, plant breeding and health care.
www.testbiotech.org
granted patents in Europe until end of 2010
Granted:
• Gene sequences humans / animals 3.700
• Animals 1.100
• Plants 1.800
www.testbiotech.org
The 'oncomouse'
The 'oncomouse'
Patent covers:
the technical process
the animals
their offsprings
European patents on animals
European patents on plants
the Roundup Ready case, EP 546090
www.testbiotech.org
Das Imperium von Monsanto
Quelle: Economic research service/ USDA
Institut für unabhängige Begleitforschung in der Biotechnologie Howard, P.H. 2009. Visualizing Consolidation in
the Global Seed Industry: 1996–2008, Sustainability 2009, 1, 1266-1287;
doi:10.3390/su1041266
EPO/ WIPO: patent applications covering conventional breeding
1985 1990 1995 2000 2005 2010
0 20 40 60 80 100 120 140 160
Patent applications covering methods without genetic engineering
EPO: Patents granted
on conventional breeding
1985 1990 1995 2000 2005 2010
0 2 4 6 8 10 12 14
EP patents granted on conventional breeding
Patent applications on conventional breeding :
Dupont, Monsanto, Syngenta
2001 2002 2003 2004 2005 2006 2007 2008 2009 2010
0 10 20 30 40 50 60 70
Dupont/ Pioneer Monsanto Syngenta
% of their plant patent applications
Patent applications on vegetables at the EPO
www.testbiotech.org
melon, cucumber, squash tomato brassica pepper
lettuce onion carrot
Broccoli:
the precedent case (G2/07)
Broccoli:
the precedent case (G2/07)
1. A method for the production of Brassica oleracea with
elevated levels of (...) glucosinolates (...) which comprises:
(a) crossing wild Brassica oleracea species with Brassica oleracea breeding lines; and,
(b) selecting hybrids with levels (...) glucosinolates (...), elevated above that initially found in Brassica oleracea breeding lines.
Broccoli:
the precedent case (G2/07)
9. An edible Brassica plant produced according to the method (...)
10. An edible portion of a broccoli plant produced according to the method (...)
11. Seed of a broccoli plant produced according to the method (...)
Tomato: the second
precedent case (G1/08)
Reduced water
content
Sunflower seed, plant and oil
derived from mutation
breeding
Resistance against viral disease
EP 1962578
Monsanto
Soy patent
covering the food
chain
Trees selected by genetic
fingerprints
EP 1 330 552 MARKER ASSISTED SELECTION OF BOVINE FOR IMPROVED MILK PRODUCTION
'Monsanto' pig patent EP 1651777
Claim 4:
„A method of enhancing meat production from a swine herd comprising:
a) screening a plurality of pigs [...]
b) selecting those pigs having a desired allele; and
c) using the selected pigs as sires/dams in a breeding plan to produce offspring; [...]
d) repeating steps a) through c) until an increased allelic frequency for the desired allele is achieved.“
Upcoming:
from feed to meat
Wheat Rice Maize Soy Cotton -100
0 100 200 300 400 500 600 700 800
% Yield
% Chemicals
% Seeds
? ?
?
Monsanto's patent applications on meat and fish
WO2009097403
Claim 1: “a pork product for human consumption ...”
Claim 18: “(...) consisting of bacon, ham, pork loin, pork ribs, pork steaks (...)
Claim 34: “A method of producing pigs comprising: a) providing a nutritious composition (...), b) feeding said nutritious composition to at least one pig; and c)
producing progeny from said at least one pig ...”
WO201027788: similar claims in aquaculture
How to turn plants into ‘inventions‘
measuring content of compounds in plants (such as oil or protein)
describing phenotypical features (such as number of leaves or size of plants, yield, growth, biomass)
detecting resistance against biotic or abiotic stress
genomic screening for naturally occurring genetic conditions
mutagenesis
plant variety protection vrs. patents
PVP rights are restricted to a distinct single variety, while patents cover whole range of species and classes.
PVP system allows free access to any commercial traded seed for the purpose of further breeding (“breeders
exemption”). Thus it works as a open source system for other breeders. Patents can block access to genetic
resources to large extent.
plant variety protection vrs. patents
Patents do not end as long as the patented genetic
conditions can be found in any progeny. After crossing of plants there can be an increasing accumulation of patents.
Patents allow claiming the whole chain of food production:
Seeds, plants, cultivation, harvest and its processing are subjected to monopoly control.
abuse of patent law to control
chain of food production
Impact on breeders, farmers and world food supply
The European Group on Ethics in Science and New Technologies to the European Commission,
Opinion Nr. 24, Oktober 2008:
“The Group supports promotion of innovation in agriculture but is concerned about the impact of patents on agricultural crops.“
Impact on breeders and innovation
“Recently more and more patents are applied on naturally occurring genetic resources on the basis of new technologies that allow
precise description of natural genetic conditions up the
sequencing of whole genomes. This practise in patenting opens up new conflicts and inherits the risk to erode the principles of plant variety protection, especially concerning the access plants and therefore to genetic variability. The development is a threat of slowing down innovation in plant breeding, to narrow genetic diversity and increase dependency from license holders.“
(German Plant Breeders Association)
Impact on breeders and innovation
“Some IP systems, such as trademark law and plant breeder’s rights, can simply be used by small companies but patent rights are
different. (…) Patent applications, however, require specialised patent attorneys to describe the invention and to formulate the claims. It may take years before rights are granted and the value of a patent may not become clear until it has been opposed, which may lead to long legal procedures. The legal costs of such a
procedure may cause a financially weaker party to surrender already after a threat with a court case.“
(Louwaars, 2009)
Impact on breeders and innovation
“Earlier discussions, however, indicate that large American companies spend more on legal council than on R&D. This
justifies the question whether the current patent system yields the best added value for society in the plant breeding sector,
assuming that innovative R&D and not lawyers are coming up with solutions for policy challenges such as food security,
protection of the environment, adaptation to climate change etc.“
(Louwaars, 2009)
Impact on farmers
“For most crops only a few companies are controlling a large part of the world market. This makes a growing part of the global food supply dependent on a few companies. (...) Farmers and growers fear that their freedom of choice is
threatened and that no varieties will be developed for certain crops that specifically meet their requirements (...).“
(Louwaars, 2009)
Impact on world food supply
„If this trend isn't halted, some experts claim, tomorrow's supercrops may end up like many of today's medicines:
priced out of the reach of much of the developing world's growing population. `We are headed down the same path that public-sector vaccine and drug research went down a couple of decades ago,´ says Gary Toenniessen, director of food security at the Rockefeller Foundation in New
York.“
source: Crop improvement: A dying breed, Nature 421: 568-570, by Jonathan Knight, Feb 6, 2003
Impact on world food supply
IAASTD (International Assessment of Agricultural Science and Technology for Development), 2008:
“In developing countries especially, instruments such as patents may drive up costs, restrict experimentation by the individual farmer or public researcher while also potentially undermining local practices that enhance food security and economic sustainability. “
http://www.greenfacts.org/en/agriculture-iaastd/l-2/3-biotechnology-for- development.htm#0
Impact on world food supply
“Because of the generally negative effects of patents in plant breeding, the UK Commission on Intellectual Property Rights
explicitly advises developing countries to completely ban patents on plants and seeds.“
(UK Commission on Intellectual Property Rights, 2002, Integrating Intellectual Property Rights and Development Policy, http://www.iprcommission.org)
Impact on world food supply
“The essential purpose of food, which is to nourish people, has been subordinated to the economic aims of a handful of
multinational corporations that monopolize all aspects of food production, from seeds to major distribution chains (...).”
Miguel d’Escoto Brockmann, UN-General Assembly, 2008
EU Legal framework -
patent on plants (Dir. 98/44)
Article 4
1. The following shall not be patentable:
(a) plant and animal varieties;
(b) essentially biological processes for the production of plants or animals.
EU Legal framework -
patent on plants (Dir. 98/44)
Article 4
2. Inventions which concern plants or animals shall be
patentable if the technical feasibility of the invention is not confined to a particular plant or animal variety
EU Legal framework -
patent on plants (Dir. 98/44)
Article 2:
A process for the production of plants or animals is essentially biological if it consists entirely of natural phenomena such as crossing or selection.
www.testbiotech.org
EU Legal framework -
patent on plants (Dir. 98/44)
Article 8
• 1. The protection conferred by a patent on a biological
material (...) shall extend to any biological material derived from that ..
• 2. The protection conferred by a patent on a process (...) shall extend to biological material directly obtained through that process and to any other biological material ....
What was decided at the EPO (G1/08)
1. A non-microbiological process for the production of plants which contains or consists of the steps of sexually crossing the whole genomes of plants and of subsequently selecting plants is in principle excluded from patentability as being
"essentially biological" within the meaning of Article 53(b) EPC.
2. Such a process does not escape the exclusion of Article 53(b) EPC merely because it contains, as a further step or as part of any of the steps of crossing and selection, a step of a technical nature which serves to enable or assist the performance of the steps of sexually crossing the whole genomes of plants or of subsequently selecting plants.
What was decided at the EPO (G1/08)
3. If, however, such a process contains within the steps of sexually crossing and selecting an additional step of a
technical nature, which step by itself introduces a trait into the genome or modifies a trait in the genome of the plant produced, so that the introduction or modification of that trait is not the result of the mixing of the genes of the plants chosen for sexual crossing, then the process is not
excluded from patentability under Article 53(b) EPC.
4. In the context of examining whether such a process is
excluded from patentability as being "essentially biological"
within the meaning of Article 53(b) EPC, it is not relevant whether a step of a technical nature is a new or known measure, whether it is trivial or a fundamental alteration of a known process, whether it does or could occur in nature or whether the essence of the invention lies in it.
The coalition of 'no patents on seeds' is demanding no patents on:
Plants and animals
Process for breeding plants and animals
Gene sequences from plants and animals
Food derived from plants and animals
Recent statements
contact: info@no-patents-on-seeds.org
