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In 1998, Pioneer Hi-Bred decided it was time to
send a clear message out to farmers about who is boss in the seed
world. It did so by suing Farm Advantage, a family-owned agricultural
supply business whose president, Marvin Redenius, had purchased
600 bags of Pioneer's seeds for resale to its own clients, some
of them seed dealers who have also been sued. Pioneer claimed that
the 17 utility patents it had been granted by the United States
Patent and Trademarks Office (USPTO) on its seeds gave it the exclusive
right to decide who sells them. Based on the 1971 Diamond vs Chakrabarty
case, since 1985 the USPTO has routinely granted utility patents
covering genetically-modified plants and also plant varieties meeting
the standard criteria of novelty, utility and non-obviousness. Pioneer's
patents are among them.
To Pioneer's surprise, Mr. Redenius and the other
defendants countered the attack by asking the Court to throw the
case out on the grounds that plant patents are illegal and that
the US Congress never intended major food crops to be patented.
They argued that Congress clearly set out these conditions when
it enacted the Plant Variety Protection Act (PVPA) in 1970. According
to Farm Advantage, Congress' position has been underlined several
times since then, even as recently as last year. The Court first
rejected the case but then the judge forwarded it to the Federal
Court of Appeals, which held the hearing on June 8. According to
Hope Shand of the Rural Advancement Foundation International (RAFI),
what is at stake is whether the US Congress ever intended to allow
plant breeders to take out utility patents to give them monopolistic
control of plant varieties or whether its first priority was protection
of the public interest by allowing farmers to save seeds and exempting
plant breeders, as acknowledged in the PVPA.
Should patents on plants fail this legal challenge,
the effects on the Life Industry willl be huge. As a DuPont representative
told The Wall Street Journal: "You'd still have a biotechnology
industry, but not a robust one." And as John Barton of
Stanford University has pointed out,"While the US has taken
across the world the attitude that this is a settled law, the fact
is that it may not be. We all assume that it's law, but the court
has never really examined it. It could be a real earth-shaker when
it comes down." It may turn out then, that the huge pressure
the US has put on the rest of the world to accept patents on plant
and animal varieties has arisen from an illegality. This has huge
implications for international trade agreements such as TRIPS. According
to Farm Advantage, a decision is expected before the end of the
year.
Sources: Scott Kilman (1999), "Biotech
Industry Shivers at Threat to Seed Patents," The Wall Street
Journal, 3 March 1999; RAFI (1995), "Utility Plant Patents:
A review of the US Experience (1985 July 1995)" RAFI Communique.
Cheryl Agris (1999), "Intellectual property protection
for plants", Nature Biotechnology Vol 17, pp 197-198.
Cheryl Agris (1999), "Patenting plants: What to claim,"
Nature Biotechnology Vol. 17 pp 717-718. Harrison Wein (1999),
"Public Sector Struggles With Intellectual Property Rights,"
Global Issues in Agricultural Research, Vol. I, No. 4, March
26.
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