by Miges Baumann | 25 Oct 1990

Miges Baumann

Herb grower Peter Lendi has filed a lawsuit against the first Swiss plant patent on a camomile variety. This struggle between an organic herb farmer and the German pharmaceutical company Degussa, who filed the patent could become a major test case in Switzerland. It is not only the camomile but the future of agriculture that is at stake. GRAIN Board member Miges Baumann reports on this fight between herb farmer David and pharma-giant Goliath.

Herb grower Peter Lendi proudly overlooks his herbs on the steep plot in the mountain village of Bergamo: blossoming and scented camomile alongside teas, spices and medicinal plants. Peter Lendi is a dedicated and successful "bio" herb farmer. Organically produced herbs have become a big seller in Switzerland and presently the demand is higher than the available supply. Lendi has accumulated a great deal of knowledge about the healing effects of different herbs. He is president of the Bio-Herb Farmers in the Swiss mountains and personally supervises the mixture and distribution of the dried herbs. He produces delicious mixtures for gourmets, creations of tea with names like "Lunadonna" (Ladymoon) or "Summerdream", as well as medicinal concoctions for pharmacies.

Trouble with camomile

 "Camomile tea cures stomach ache" is a traditional Swiss adage. For Lendi, camomile these days rather causes headaches. Two years ago, the German company Degussa/Asta Pharma patented a new variety of camomile dubbed "Manzana". "Two well-known German plant breeders have developed this Manzana variety", says Peter Lendi. "What's new about this camomile is the regular high yield of active substances. Up to now, the yield of such substances has been quite erratic. This variety assures a secure output of active components. That's quite an achievement." While acknowledging the value of the new variety, Swiss herb growers are extremely worried about the patent. "Manzana" is the first patented plant variety in Switzerland. "This patent is illegal. According to Swiss law, no plant and animal varieties can be patented. This patent will have devastating consequences not only for herb-farmers but for all farmers," Lendi claims.

Herb farmers who wish to cultivate the "Manzana" variety now have to seek permission from Asta Pharma and must pay royalties jacked into the price of the seed. Even those producers who benefit from a comparably high yield of active substance as Manzana's with their own variety could probably be forced to pay royalties. Not only are the way of producing Manzana and the plant variety itself patented, but also the consistently high yield is property of the patent holder. This could punish innocent successful plant breeders and farmers who obtained the high yield through other means.

Court case in Germany

In Germany, a court dispute over camomile is already in the pipeline. The patent holder, Asta Pharma, tried to prevent the distribution of camomile preparations by another company that according to Asta contained a similarly high yield of active substance. The challenged company, Robugen (number two on the German camomile market), defended itself by proving that its camomiles stemmed from different varieties and was produced without the techniques patented by Asta. Still, Asta Pharma did not give up. At this point Robugen started a counter attack and challenged the Manzana patent itself.

According to patent law, an invention has to be new, useful and made open to the public by description or by deposition of the seed. The description has to be precise so as to allow a skilled person in the field to reproduce it. Robugen disputed the Manzana patent on two levels. First: a plant variety as such was not patentable per se. Second: the process to develop the new breed was not new at all and the invention was not described to an extent that a skilled person or farmer could reproduce the seed, nor could he obtain a deposited sample of the seed.

Mountain farmer versus Pharma-Company

What was a struggle between Number One and Number Two on the German camomile market was to take place in Switzerland as the fight between David and Goliath. Peter Lendi, representing other herb farmers, has now challenged the Manzana patent in Switzerland. The herb farmers are threatened directly by the camomile patent, which is probably why they are the first to counteract. But they are not the only ones who condemn this patent. The Swiss Agricultural Research Centre criticised the patent in 1989: "Against this patent, sharp measures have to be taken!" as it was "a grave violation of the patent legislation." The Secretary of the Swiss Union for the Protection of Plant Breeding, Otto Steinemann, even calls it "total garbage". He upholds that the method of producing the new plant has been known since the 1950s.

For Lendi, this is not only the case of camomile but ultimately of all crop production that is at stake. Companies who not only breed certain varieties but also process them, will soon hold farmers themselves as licensees or subcontractors. The same company that offers the seed buys up the harvest and processes it. "The individual farmers will become completely dependent on the big companies," fears Lendi. Indeed, other voices from different countries have raised the warning that soon farmers might only rent germplasm on their farms.

Plant breeding increasingly depends on biotechnology and genetic engineering. The result might be that single genes, the inheritable information of the plant, will be subject to patent protection. "Within the coming ten years, the seed industry will market genetically-altered plants, where patented genes will raise the resistance against certain pests and raise the tolerance to herbicides," Ciba Geigy writes in its internal bulletin of March 1990. The herb farmers do not accept the idea of patenting single genes. "The same gene can appear in different cultivated plants," argues Lendi. "Patenting of genes prevents the further use of varieties for breeding. These genes have not been invented but exist already. They have been conserved over thousands of years by farmers here and in the Third World. The results are now being usurped by few rich companies and taken to the patent lawyer, while the traditional unknown breeders are forced out of business. That is not fair."

Peter Lendi does appreciate the work of the two German breeders who developed Manzana and thinks that it should be rewarded and protected. "In Switzerland there is a plant breeders law. It is absolutely sufficient to reward and protect their work. Other breeders who have done brilliant work as well are satisfied with this plant breeders protection." The difference between the plant breeders and patent laws is that the plant breeders law allows free use of a protected variety for breeding purposes, so competitors can try to further improve the plant. Under patent law, only the patent owner can use the protected material for further development and use. Furthermore, in the plant breeders legislation, farmers can reproduce their own seed. Only commercial marketing and sale of protected varieties is prohibited. Not so in patent law.

The Manzana Association

The law suit in the patent court is complicated and will cost a lot of money. Therefore farmers, environmentalists and Third World organisations will help the herb-farmers to defend their case financially. On the initiative of Socialist MP Ursula Bümlin, the "Manzana Association" was founded last August to educate the public about the negative implications of patenting plants and animals and financially support the herb farmers ' case.

Different organisations warn of the negative consequences of animal and plant patents. The Swiss Agricultural Research Centre in Changins warns, "A monopoly on the use of living material can severely hamper the progress in plant and animal breeding. As well, such a monopoly would increase the genetic uniformity of varieties and crops. This could have severe consequences on agricultural production." The greater the uniformity, the easier it is for fungi and viruses to spread and attack. Experts warn of possible crop failure and catastrophes even in the industrialised countries. Chemical weapons can fight pests and disease only in the short term. However, they are very quick in becoming resistant to pesticides or overcoming other methods of pest control such as genetically-engineered resistance against viruses.

For the biofarmers, organic agriculture and patented plants are incompatible. Genetic uniformity makes organic farming impossible as only the broad variability among plants can prevent widespread pest outbreaks and epidemics. The Swiss Association for Organic Farming also presents political arguments against life patents: "Farmers here and in the Third World are being robbed of their autonomous production systems as breeding becomes an object of licences." A "completely new form of power" is growing, they assert: the total control over the food supply of this planet.

Peter Lendi meanwhile is struggling to keep up with all his jobs and duties. The fragrant herbs have to be harvested right now and dried carefully. Organic farmers have to do nearly all this work by hand. Until the 1990 harvest of "Summerdream" and "Lunadonna" are delivered to the tea connessoirs, they might be drinking the spring varieties winterfire and infuso die primavera. The question is for how long Swiss tea drinkers will be allowed to enjoy these formidable tastes produced by small scale organic farmers. Much of the answer to that question might depend on patent lawyers.

Author: Miges Baumann