Patents are a controversial topic these days. While I don’t think many people would argue it’s a good thing for an inventor to be able to protect their invention, modern patent law has gone far beyond this. For one thing, most ordinary people don’t have the economic resources or business connections to effectively patent, legally defend and sell their inventions. In addition small companies are very vulnerable to the lawsuits that come from patents, and the legal costs that ensue.
With the duration of patents recently extended to 20 years, and changes in patent law that make many more patents possible then ever before, patents are increasingly becoming a tool for wealthy individuals to increase their wealth and dominance over society.
An important issue used to be the common good, and this was one of the arguments for limiting patents to 10 years. Afterwards the patent would fall into the public domain. This idea is increasingly being sidelined, and patent holders supported by governments have increasing power to remove unpatented products from the market or exclude them from supply chains.
Background on Seeds in Europe
It’s different in different places in the world, but in Europe patents on seeds were introduced by the biotechnology directive of 1998. This was after several years of debating, and a failed directive 10 years earlier. This was also in the wake of GMOs being released into the environment in North America, and Monsanto suing farmers with contaminated fields claiming they were violating their patents. Most famously was Percy Schmeiser in Canada who won his legal battle with Monsanto.
Among the controversies in Europe was the idea that genes which exist in nature should be patentable, just by virtue of isolating them. This would not seem to be an invention, which is what patents are supposed to be about.
Unlike North America, in Europe conventionally bred seeds were explicitly excluded from patents, or so they thought. Also in Europe, there was so much controversy surrounding the issue, there were agreements put in place effectively locking the dossier at the European Commission, and there is now a great deal of reluctance to reopen this dossier.
Supposedly this wasn’t something the food industry wanted, but rather was forced on them by the pharmaceutical industry. A claim like this is very hard to verify, and depends on knowing the contents of private conversations between company executives. Did one industry force it on another, or was there collusion? It’s certainly convenient plausible deniability.
Near Diplomatic Immunity
One of the most undemocratic things about the patent issues is the way it’s been implemented. It was implemented after a great deal of public protest, then with a closed dossier. Now the patents are issued by an independent institution, located in Switzerland outside of the EU, in a building that effectively has a form of diplomatic immunity. Apparently even the police need permission to enter the building. The reason for this legal-political construction was to prevent ‘political interference’ in the issuing of patents.
This effectively puts the issue of patents outside of both EU and Swiss laws. The issuing of patents is at the convenience of those applying, and the institution is largely self regulating.
The Mistake
In the midst of all this political wrangling, a mistake was made. As it turns out, patents on conventionally bred seeds were not excluded as originally intended. There was a small mistake in the original wording of the law, and this has resulted in scores of patents being unintentionally issued. It’s been in the news; patents on potatoes, lettuce, broccoli, tomatoes or peppers.
Now this mistake is buried deep inside this directive, which has been been closed and locked by the EU commission, and the patents are being issued within the legal-political construction that was intended to prevent ‘political interference’.
The Winners and Losers
Anyone who breeds fruits and vegetables are certainly the biggest losers. This creates a situation where breeding techniques and well as entire ranges of fruits and vegetables might suddenly become a priority, because their company owns the patent, or something to be avoided because a competitor owns the patent. It means any breeders have to pay attention to all the individual genes and traits their plants might have, in order to consider what patents might exist on these.
If you’re an independent plant breeder, this really has the potential to put you out of business. It will be very difficult to avoid all the patents controlled by the larger players.
Most countries in Europe with commercial plant breeding activities have passed local legislation setting aside patents on conventionally bred products. This means for the time being breeding activities can continue in these countries. The problem will come in the marketing of these fruits and vegetables in other countries where local legislation hasn’t been changed.
Are there winners? Probably consumers are winners to some extent. A messed up system of patents means the food companies will have a harder time using patents to their advantage.
No Patents on Seeds
Along comes the food industry, in this case primarily meaning Monsanto because they owned most of the seed companies at that point. They start a campaign, with a lot of resemblance to campaigns run around the time of the introduction of patents on plants and seeds in Europe. They setup a website, run a marketing campaign in The Netherlands and elsewhere in Europe, then collect many signatures on a petition for the purpose of getting rid of patents on seeds. The name of this campaign is ‘No Patents on Seeds’.
Almost as soon as it began, but after they collected the bulk of the signatures, they announced they were going to work initially on just patents on conventionally bred plants and seeds.
In other words, they’ve turned a popular campaign for getting rid of patents on living plants and animals, and their genes, into a food industry campaign to fix the system of biotechnology patents in Europe to their advantage.
This campaign seems to have a virtually unlimited budget. Not only are they sponsoring 30 minute TV infomercials in the Netherlands, but they have a large number of staff, in several countries, working directly and indirectly on the campaign. It’s clear a number of organizations who put their name behind the campaign did so because they were paid.
There’s no money for a competing campaign, and for example this blog is the effort of a single person who’s own costs aren’t even paid.
I’m not aware of a single person supporting this campaign who didn’t either sign the online petition at the time it was promoting a complete end to patents on seeds, or doesn’t have a financial relationship with the organizers of the campaign. As far as I can tell it’s completely paid for by the food industry.
The Importance of GMOs
It might be easy to dismiss GMOs as unimportant with respect to patents. For example in Europe they are not completely prohibited, but very restricted and not common. It might be tempting to believe an end to patents on conventionally bred plants and animals might be good enough.
In fact there are many reasons why this is not true. With GMOs there are many gray areas. There are a number of techniques being considered by the EU Commission now as possibly being exempt from classification as GMO. In addition non-food items, for example bio-plastic packaging, can legally be sold in Europe as GMOs. If these techniques and crops can be patented, there will be very strong commercial reasons why consumers can’t object to them and there may be the same environmental health consequences as GMOs in our food.
In addition, while as a consumer I insist on the right not to have GMOs forced into supply chains, and I insist on continuing to have the right to not buy GMOs if I choose, I don’t rule them out as a science. I think in general consumers will be much more prepared to accept GMOs if they exist in the public domain and there are not strong commercial pressures behind them. I think in the future there may be important reasons why GMOs may be used, and patents shouldn’t interfere with this any more than they should interfere with conventional breeding now.
The End of Plausible Deniability
I guess we’re all lucky one of the worlds largest pharmaceutical companies just bought the worlds largest agriculture company. Now that the Bayer-Monsanto merger is a thing of the past, it’s a lot harder to say patents on seeds are being imposed on the food industry by the pharmaceutical industry. Now it’s very realistic to expect the two industries to view it as a common issue.
The Real Solution
The solution is not to fix a broken system of patents on life. The solution is for the food industry to convince us that patents on life are necessary and beneficial to the consumer, and if not then cooperate with reopening the biotechnology dossier at the EU Commission, for the purpose of ending all patents on living organisms or their genes.
If the food and pharmaceutical industries do not find this an acceptable solution, then the proper thing to do is negotiate a solution that also provides other real benefits to the common good. In order to move forward with this, the fake news campaign has to stop.
It’s my hope this issue provokes a larger debate on patents.
