Monsanto strikes back - Company takes action against the ban of its transgenic maize by the German government

After last week´s sowing ban of MON 180, a genetically modified maize strain by the German Federal Minister of Agriculture, Ilse Aigner ("Patenting lives" reported), the patent holder Monsanto launched a legal action against this decision yesterday. A representative of Monsanto stated that the ban was contradictory and not in accordance with EU-rules. Hence, along with filing an action at the administrative court of Braunschweig, Monsanto is also seeking injunctive relief by the court. The haste in which these steps are taken is grounded on the fact that maize would need to be sown in May. According to Monasanto´s speaker the company is expecting a decision by the court by mid May.

MON 180 is genetically modified strain of maize which includes a gene from the bacillus thuringiensis and produces a poison which repels the parasitic larvae of the European Corn borer, a butterfly. By declaring the sowing ban, Ms Aigner applied the Safeguard Clause by which the competent authority may suspend the permission to dispose genetically altered organisms if new or additional information becomes available which may lead to a new risk assessment. The Minister based her decision on new studies which apparently have provided reasonable evidence that the genetically modified strain of maize would present a hazard to the environment - specifically for butterflies, lady birds and creature od the water.

Meanwhile, evidence is given that the German Federal Government has not yet reached a common consensus on its position on green genetical engineering. The Federal Minister of Education and Research, Annette Schavan, is critizising her colleague´s decision to mandate a sowing ban on MON 180. Ms. Schavan refers to green genetic engineering as one of the technologies of the future. Additionally she announced that fundings for such technologies will be expanded.

The Minister has announced that she is scheduling a roundtable in Berlin for the 20th of May on genetical engineering. Hereby all stakeholders would be invited. This would include associations, companies, scientists, non-governmental organisations as well as churches.

The outcome of this roundtable might shed some light on what direction green genetical engineering might be heading to in Germany. This will most certainly have an impact on the wider, namely the European scale.

"Pig patent" and ban of genetically modified crops - The week on biotech patents in Germany

Last week has been a noteworthy one in Germany for biotechnological patents for agricultural applications and has received wide interest, nationally as well as internationally.

Hundreds of farmers, environmentalists and others gathered outside of Munich´s Erhardtstrasse 27, the principal seat of the European Patent Office (EPO) last Wednesday to protest against the so-called „Pig patent“ EP 1651777 B1 (above; 30 pigs "accompanied" the protests). The protesters used this opportunity to file a notice of opposition backed by more than 5000 individuals and more than 50 associations against the patent at the EPO which was granted on the 16th of July 2008 to Newsham Choice Genetics.

The protesters criticized the practice of patenting biological processes since “they have nothing to do with inventions”, as Hubert Weiger, the head of the “Bund Naturschutz Bayern”, an environmental group in Bavaria, stated. The farmers were specifically concerned that the continuing patenting of life stock would seriously aggravate their work by being threatened to pay excessive royalty fees to patentees which usually are multinational corporations in this area.

Initially the patent application contained 30 claims, from which some were related to animals as such, DNA sequences and the test kit. However the examination of the EPO has limited the claims to the screening method, whereas the claims to animals (pigs), the gene sequences and the test kit were rejected. The patent now solely relates to a “breeding method whereby a genetic analysis is carried out to screen for a variation (polymorphism) occurring naturally in some pigs, with a view to identifying those animals suitable for improving pork production and to selection appropriate breeding pairs” (see the press release of the EPO).

The main motto of the protest however was: “Stoppt das Patent auf die arme Sau” which stands for “No patents on the poor pig” and hereby – deliberately or negligently - wishes to render the patent as granted to a patent on pigs as such and hence being misleading. This may be excused due to the fact that this slogan is in its German meaning quite catchy and therefore serves the purpose of the protests. The press release of the EPO however clearly highlights that no patent on animals or gene sequences has been granted. The claims as they were initially filed may have lead to the realisation of such fears as expressed by the protesters but the examiners at the EPO did their job well in applying the rules of the European Patent Convention (EPC).

However, the protests and the hereby created public interest actually do highlight a major deficiency in the IP system and its public perception. It has not been achieved to thoroughly inform society as a whole what IP, and specifically patents is all about, how it operates and where its limitations are. IP has lately had a bad press whereas its benefits are often overseen. This needs to be addressed, bearing in mind its possible negative effects as well as to further explore how these may be overcome.

The press release by the EPO has highlighted in its last paragraph another rather more legal deficiency, which remains a hot topic and warrants determined action by policy makers. The EPO ceases to have jurisdiction totally 9 months after grant and the patent then falls within the jurisdiction of the nominated Member States. Post grant “quality control” by litigation on what should be patented is therefore seriously being hampered. In case of the “pig patent” (18 of the 35 Member States of the European Patent Organisation have been nominated for patent protection) this could mean multiple - and therefore expensive - litigation in all nominated jurisdictions.

Earlier this week the German Federal Minister of Agriculture, Ilse Aigner, has proclaimed a ban on the use of the genetically modified maize strain MON 810, which has been patented by Monsanto. The Minister was not hesitant to state that the decision was not a political one but was solely based on the facts of the case. Therefore, the decision should not be regarded as a fundamental verdict on the use of genetically modified crops in Germany, as Ms. Aigner affirmed. However, the political pressure is constantly growing. The Minister of Environment of the Federal State of Bavaria, Marcus Söder, has expressed the wish to make Germany a „genecrop-free zone“ and has reaffirmed this goal in a speech at Wednesdays´ protests against the “pig patent”. He joins the Ministry of Environment of the Federal State of Hessen, which is about to launch a legislative initiative in the „Bundesrat“, the 2nd chamber of parliament in Germany which consists of representatives from the 16 federal governments, to ban the patenting of newly bred animals and plants. By doing this, the Ministry wishes to call upon the German Federal Government to lobby the European Council and the European Commission to tighten Directive 98/44/EC on the legal protection of biotechnological inventions.

It now remains to be seen what impact the incidents of last week in Germany will have on the patenting of biotechnology. Mon 810 is currently banned in 6 countries of the European Union, including Germany. And it appears that the European Commission is willing to reconsider certain issues on patenting biotechnology.

Wikipedia for Agriculture

Scientists in India have launched Agropedia, an "agricultural Wikipedia."

The project was first devised around 3 years ago by project lead, T V Prabhakar. Prabhakar, of the Indian Institute of Technology in Kanpur, saw a need for the equivalent of Wikipedia to be created for global agriculture. The project was revised to focus on information specific to India.

The 85 million rupee project will be implemented over 30 months to provide on-line access to agricultural information and knowledge throughout the country. Funded by the Indian government (the National Agriculture Innovation Project (NAIP)) and World Bank, resources will include information on crops and practices, regional knowledge and relevant research. Its primary objective is to provide an effective dissemination mechanism not only for researchers and students, but also farmers and agricultural extension workers.

The website launched with information on 9 crops - rice, wheat, sugarcane, lychee, groundnut, sorghum, chickpea, vegetable pea and pigeon pea - but the objective is to expand the resource so as to include all information related to agriculture and agricultural practice.

In true wiki-style, Agropedia is a dynamic resource to which content is constantly added and reviewed. Agricultural researchers are invited to validate information through the "open source" wiki model, but additional review will no doubt emerge through user feedback and contributions. Blogs and user forum facilities enhance and broaden the kind of knowledge provided and exchanged through the project.

The 7 consortium partners in the project include the International Crop Research Institute for the Semi-Arid Tropics (ICRISAT); Indian Institute of Technology, Kanpur (IITK); Indian Institute of Technology, Bombay (IITB); G B Pant University of Agriculture and Technology (GBPUAT); Indian Institute of Information Technology and Management, Kerala (IIITM-K); National Academy of Agricultural Research Management (NAARM); and the University of Agricultural Sciences, Dharwad (UASD).

The first stage of the project involved refining the mechanism to manage the knowledge, with the next phase to concentrate on dissemination, with trials to commence in 6 locations around the country.

Dissemination is not a straightforward exercise. While access to the necessary communication technology may be difficult for some, the resource will nevertheless improve the infrastructure to deliver information to all farmers. With the cooperation of agricultural extension workers and the establishment of around 12000 information technology-enabled rural information centres, the introduction of Agropedia should improve the accessibility of agricultural information whether directly or through farming networks. Innovative approaches to innovation are therefore very important. For example, V Balaji, head of knowledgment management and sharing at ICRISAT, has suggested that Agropedia resources might be used in various ways to disseminate information, including radio plays.

As one of the agricultural centres of the world and in a region rich with traditional agricultural practices and knowledge, India possesses unique resources for its ongoing development. This kind of enterprise has the potential to provide a significant facility for detailing and sustaining that development.

GM Wars

Last week's announcement that UK Minister for the Environment, Jeff Rooker, was leaving government and Hilary Benn was appointed Secretary of State for Environment, Food and Rural Affairs led many to consider this a strong shift in the politics of GM food in the UK.

At a fringe meeting of the Labour Party Conference in Manchester, the then Minister (pictured at right) was credited with describing opponents of GM as being "... on a messianic mission. It is almost a religion where there isn’t any science base to it." However, a Jay Rayner writing in Sunday's Observer disagrees: "Benn has hardly been a friend of those who have been calling for an end to all GM experiments."

As the April report of the International Assessment of Agricultural Knowledge, Science and Technology for Development (IAASTD) explains there are new liability concerns for farmers with the advent of GM: "Farmers face new liabilities: GM farmers may become liable for adventitious presence if it causes loss of market certification and income to neighboring organic farmers, and conventional farmers may become liable to GM seed producers if transgenes are detected in their crops." In other words, the revolutionary changes in farming include not only influences upon traditional methods but also a revolution in the way in which farmers interact with their resources as patented materials.

As Rayner's article explains, the debate over GM is a debate not only in science, but also in politics and indeed commercial law. As a consumer issue, it is also a competition issue when intellectual property rights might interfere with access not only for consumers but for the farmers themselves. Noting Monsanto's practices of conscientious pursuit of litigation and the creation of seed "technology packages," the article raises the links between competition and intellectual property. Such packages (or bundling) as discussed earlier in Patenting Lives, are considered by the article to "force farms into a dependence on the company." It is this constraint upon ordinary farming practice that is credited with a breakdown in trust, not only for the technology but also for the commercial re-structuring of traditional farming practices.

Don't steal the steelpan

The United States Patent and Trademark Office (USPTO) has revoked a patent for the "Cycle of Fifths Steel Pan" after an inter partes request for re-examination filed by the Government of Trinidad and Tobago.

The request led to re-examination of the patent granted to Trevor King (Jamaica, NY):

• US Patent 6 750 386 -"Cycle of Fifths Steel Pan"

as well as the patent granted to George Whitmyre et al:

• US Patent 6 212 772 - "Production of a Caribbean Steel Pan"

The third patent of interest, granted to Wheeler Matthews, was US Patent 5 973 247, "Portable Steel Drums and Carrier." However, this patent had lapsed due to non-payment of fees.

In the "Cycle of Fifths Steel Pan" patent, the Government of Trinidad and Tobago challenged the claim for inventiveness pertaining to an arrangement of notes on the surface of the steelpan, the technical solution offered being that this made the playing of the steelpan easier. This claim was challenged for novelty and inventiveness - it was shown to be well-known and anticipated in the published local work of pannist, Anthony Williams (pictured at right).

The USPTO Inter Partes Re-examination Certificate will identify which claims can be confirmed as patentable, which have not been examined and which are to be cancelled, disclaimed. In response to this request, the Inter Partes Re-examination Certificate cancelled all claims effectively invalidating the patent.

The "Production of a Caribbean Steel Pan" patent, which claimed a hydroforming production method for a mass production of steelpans, was confirmed. Perhaps this second patent raises questions not of "industrial application" but of misappropriation of a traditional industry and knowledge. The steelpan itself emerged from the history and circumstances of slavery and linguistic and cultural displacement in the region. It was such an important means of communication and cohesion between slaves that it was prohibited by the colonisers in the late 19th century. The question of mass production appears to under-estimate the greater significance of the production itself.

European Commission Open Access Pilot

The European Commission launched today a pilot project in open access research.

Pointing the the importance of access to research results as a driver of the knowledge-based economy, the Commission announced that it would use the pilot to disseminate EU 7th Research Framework Programme (FP7) project results as widely as possible. FP7 will fund more than 50 billion euros over 2007-2013 and the pilot will include results from projects in health, environment, social sciences, energy and information and communication technologies. Other EU projects relevant to the initiative include OAPEN (Open Access Publishing in European Networks) and e-SciDR (e-science digital repositories).

The project is part of the response of EU research ministers to examine the application of open access in FP7, as described in the February 2007 Communication on "Scientific information in the digital age: access, dissemination and preservation". It is complemented by the eContentplus programme, announced in 2005, which is committed to providing multi-lingual access to content.

The project is to give access to the EU-funded research results by placing them online for unrestricted access after an initial period of 6-12 months, making such results progressively much more widely available. The embargo period of 6-12 months is described as a limited period during which time publishers can get a return on their investment - a kind of management of the commons in the traditional sense.

The EU Commissioner for Science and Research, Janez Potocnik (pictured at left), said "This open access pilot is an important step towards achieving the 'fifth freedom', the free movement of knowledge amongst Member States, researchers, industry and the public at large."

The Prince and GM: A Potential Bundle of Problems

Except when inundated with repeated stories about medal hauls, it would have been difficult to miss Prince Charles's comments on the GM agriculture debate in the news today.

In an interview with the Daily Telegraph, Prince Charles criticised the terms of the debate: "What we should be talking about is food security, not food production - that is what matters and that is what people will not understand."

Although branded a Luddite by Des Turner, Labour MP and member of the Commons science committee, can this statement really be dismissed out-of-hand? Des Turner stated in the same article: "In some developing countries, where for instance there is a problem with drought or salinity, if you can develop salt or drought-resistant crops there are great benefits." But is it really clear that the transfer of GM technology to this part of the world has really been this efficient or philanthropic? Or is this just the query of a troubled misanthrope?

Far be it from me, an Australian, to unpick a statement of the UK's leading republicanism campaign group, but Republic is reported by the BBC as saying "Prince Charles is quickly making his position as heir to the throne untenable with his meddling in politics." So it's accepted that GM is a political debate, not just one over the grocery trolley?

Perhaps providing greater insight into the issues of the UK debate are the farmers themselves. In an interview broadcast by the BBC today, Michael Hart of the Small and Family Farmers' Alliance set out the real terms of the problem. He explained that when purchasing GM seed, farmers must agree to purchase the "related" products as well, including pesticides, fertiliser and so on. And of course, contrary to 1000s of years in farming traditions around the world, farmers cannot ordinarily save seed from their crops because to do so would usually infringe any patent or plant variety right on the seed they have purchased (because it amounts to keeping a protected product outside the terms of the licence).

Apart from the obvious concern with the obstacles presented by intellectual property rights to traditional farming methods, what should also be considered are the competition concerns with what sounds like licences that are "bundling" products. Bundling is where a company, which is found to be in a dominant position in the market, sells two or more products together as a bundle, charging more for the bundle than for the component parts. Assuming that the seed is not incompatible with every other fertiliser and pesticide on the market, then if a seed company is shown to be dominant within the market, it may well be acting anti-competitively because it causes customers to purchase seeds and related products as a "bundle" from that company only. As Michael Hart put it, it's the "package deal" that is the problem.

The Luddites rioted against the changes of industrialisation when machines threatened their employment and owners could replace artisans with unskilled labour. Today, loss of traditional skills and diversity of knowledge in trades is being lamented. This is not to say that industrialisation was a negative and undesirable process, but the debate is far more complex than a mere comedy in technophobia. The technology perhaps requires some diversity and innovation from all participants and potential beneficiaries in the way in which it is introduced and managed.

In principle, were the Luddites really far wrong?