I posted a few days ago about the issue of patents on plants. Now it seems the latest victim of patents is cannabis. It also seems the problem is not uniquely European…
Fake News: No Patents on Seeds
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.
European Farming in 2020
Last month the EU Council issued a press release announcing agreement on a new EU organic farming EU organic farming regulation. This is actually a big deal, and I know a number of people who have been involved in the negotiations. It still has to be formally passed as a legislative package, but since the important parties have all agreed, this is likely just a formality. It will come into effect 1 July 2020, meaning it won’t fully be in force until the 2021 planting season, and consumers won’t fully see the changes until later that year after the harvest.
Not Perfect, and Lots of Compromises
This is not a perfect piece of legislation, and there’s still a long way to go towards reforming agriculture in Europe. Putting so much emphasis on organic food is flawed. Organic is a legally defined term, and is subject to different interpretations.
What we need in Europe is normal food, based on biodiversity, agroecology and grown and sold by small and local producers. This regulation goes some way towards these goals, but is not enough. This regulation gives too much control to large agricultural interests. In particular it doesn’t do enough to control pesticide use overall, doesn’t do enough to reduce and sequester greenhouse gas emissions and doesn’t really promote agroecology.
What it does do is make agroecology theoretically possible, as well as provide a few loopholes to the strict EU seed laws. It might mean fewer dangerous pesticides are used on food consumed in Europe. It will mean consumers have access to more biodiversity in their food, and there are potentially big gains to be had in the quality of food available.
These small gains have been fought fiercely by the food industry, who have pretty much guaranteed market dominance for themselves. The food industry is prepared in almost all ways to wait until a small farmer has a clever idea, then steal it and destroy the business model of the small farmer in the process.
Agroecology
This is a somewhat unfortunate term. It’s a bit like organic, in that it’s being co-opted by industrial agriculture. Like the term organic, it refers to what used to be normal agriculture. Different people have given it different names along the way, like permaculture or ecological. For some reason we’ve needed to invent yet another name for it, so different people can claim ownership over the idea and define it according to their own purposes. I use the term reluctantly, because it is what a lot of people are saying at the moment.
This is a term that describes a system of ‘normal’ agriculture, without chemical or unnatural inputs, generally operating in a closed system without any inputs. It’s principle is building soil over time — over centuries. It has very little to do with the 3 years without chemicals need to produce certified organic food. The consequence of building up soil is the sequestering of greenhouse gasses. The system is very fragile, and any contamination with chemicals at all generally causes very long term damage. It depends on large tracts of adjoining land, also based on agroecology, in order to maintain biodiversity and habitats for beneficial organisms.
This new organic regulation envisages patches of certified organic land, side by side conventional farms, where the classification of the land changes back and forth over time, and has little to do with agroecology or maintaining ecosystems and building soils.
The relationship between conventional and organic producers is somewhat like public smoking. The use of pesticides damages the public health and environment. A short term solution is isolating conventional farmers in their own regions, but in the long term no one will be happy with that solution, so eventually it will be necessary to phase out the use of pesticides. The pesticide industry is however very powerful and deceptive, and difficult to deal with.
Pesticide Industry
What this organic regulation really does is significantly strengthen the position of the pesticide industry. The pesticide manufacturers are already facing competition from old unpatented products like glyphosate. Using very deceptive public campaigns, designed to look like some sort of activists’ issue, they are using organizations like Greenpeace and Friends of the Earth to promote their products — even to the extent of staging fake European Citizens’ Initiatives.
Not only is this likely to continue, but as the older products are removed from the market, new ones will take their place. Since the definition of organic is subject to formal and strict interpretation, they are very likely to find ways of including their products in the food chain. For example, they may develop new products based on GMOs, used in food packaging or that can be used on perimeters of organic land without actually contaminating the food grown on them, but possibly causing a great deal of damage to the ecosystem.
There are likely to be a lot more grey lines in the use of pesticides in organic agriculture, and still a lot more battles to be fought. It’s going to be more important than ever to buy food from local producers that you know personally, trust and don’t have enough money to spend it on pesticides.
No Patents on Seeds
To be clear, I’m against patents on seeds and all other forms of life. At the same time, I’m against the goals of the campaign called No Patents on Seeds.
All Seeds
The website of this campaign makes it appear as though they are against all forms of patents. The petition they are asking people to sign, also appears to oppose all patents on life. Privately however, they are lobbying for an end to patents only on conventionally bred seeds, arguing this is a necessary starting point.
Note that nothing on the website, not the petition or their statements, exclude the possibility of them lobbying solely for the removal of patents on conventionally bred plants. It all comes down to trusting or not trusting the people behind the campaign.
If GMOs are excluded from this campaign, as it appears now, this will mean GMOs have an enormous marketing advantage over traditionally bred plants. This will be a much worse situation than what we have now.
An Error in Implementation
Patents on seeds were more or less forced on the seed industry from the pharmaceutical industry, who wanted to ensure their inventions were fully patentable. This came about by way of more or less secret negotiations between the EU and US, in a similar way TTIP and other trade agreements have been arranged.
In a similar way, the EU patent office was created. The EU patent office has more or less diplomatic status. Technically speaking, even police are not allowed to enter the building uninvited, and it exists outside of EU law, almost like a foreign embassy. The reason for this was to insure there could be no ‘political interference’ in the issuing of patents.
As it turns out, there was a mistake in the implementation of seed patents, and conventionally bred plants were accidentally included. What happened was they did exclude seeds resulting from conventional breeding, but forgot to exclude the resulting products grown from the seeds. Now the seed industry itself is caught in the middle of this legal construction that was intended to prevent any changes to the operation of the EU patent office.
Plant Breeding
Plant breeders everywhere depend on the free exchange of genetic materials. Here in the Netherlands are a number of companies involved in industrial plant breeding, and they all more or less freely exchange genetic resources with one another. Independent plant breeders also usually exchange material.
As soon as patents are allowed on conventional breeding, determining exactly what’s patented, and who owns the patents, becomes almost impossible. This is an enormous problem for the seed industry. It’s also an enormous problem for independent plant breeders, but given the problems for the seed industry are more serious, I think we should accept this for the time being.
Industry Lobby Efforts
The campaign No Patents on Seeds was started in the Netherlands by Bionext, the lobby organ for industrial organic food, and is supported by the non-organic industrial food sector as well. There are intense lobby efforts by these groups in Brussels now, but only concerning conventionally bred seeds.
If you support this campaign, you are supporting the lobby efforts of the food industry.
Webs of Trust
One of the issues here is who do you trust. Since by reading this, you know this campaign is flawed, it’s really a good idea to familiarize yourself with the organizations behind it. The people and organizations who signed the petition are not necessarily bad, as the petition itself is not all that bad. The organizations that are putting themselves forward for the purpose of misrepresenting the intentions of the petition are the ones to be concerned with.
The food movement in general does not need these blurring of lines between the food industry and activist movements.
Seed Law Update 2016
There have been some important changes in Denmark concerning the EU seed law over the last several months.
EU seed law is based on 12 directives issued at the EU level, and interpreted by each member state into their own language. These interpretations have sometimes been very different in the various countries, sometimes resulting in a great deal of confusion.
A great deal of attention has often been paid to the definition of marketing, as defined in the directives. This is from Council Directive 2002/55/EC, marketing of vegetable seed, dated 13 June 2002, article 2.1(a):
“marketing”: shall mean the sale, holding with a view to sale, offer for sale and any disposal, supply or transfer aimed at commercial exploitation of seed to third parties, whether or not for consideration.
Sometimes important things in life come down to a comma. Does this for example mean “(any disposal, supply or transfer) aimed at commercial exploitation of seed to third parties” or “any disposal, supply or (transfer aimed at commercial exploitation of seed) to third parties”
Because this is an EU Directive, it doesn’t have any legal standing by itself, it simply depends on how each country interprets it. All EU countries, in various ways, interpreted this to mean individuals are not allowed to exchange or sell seeds.
In the case of a few countries, namely The Netherlands and the UK, as well as probably others, the interpretation of this article created a loophole for seed saving organizations. If you have a legally registered association, business or other legal entity, and the members of this legal entity exchange seeds with one another, the seeds are not transferred to third parties. Rather, the seeds remain entirely within the legal entity. Most EU countries did not interpret this directive in a way that made this loophole possible.
Anyway, the seed savers in Denmark have successfully argued to their government that a big mistake was made, and these directives were never intended to apply to individuals. They convinced their government to reinterpret the 12 directives, and change their seed law, as well as redefine the term ‘commercial’. They did this in consultation with the seed industry in Denmark. The term ‘commercial’ now only applies to the large farmers and monoculture crops.
Non-commercial seeds can now be sold under a significantly relaxed system of registration, also without limits to amounts or packet size.
The Danish seed savers also introduced the concept of ‘Trial Plantings’ which allows the transfer of unregistered seeds to a farmer. These trials are for the purpose of learning anything, and can be repeated as long as there is something new to learn. They can be any size, the results of the trial can be sold and the seeds may be saved by the farmer for replanting.
Because Denmark is in the EU, in theory, it is now possible to register a Danish seed company, and sell seeds throughout the EU under Danish law.
