SPROUTING UP: PLANT PATENTS CHALLENGED IN THE US

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.