You (don’t) sow what you reap : Monsanto Corporation and Patent Enforcement

Imagine making a seed which is tolerant to herbicide through genetic engineering? The word ‘making a seed’ itself sounds a bit obscure does it not? But that’s what Monsanto Corporation does.

Monsanto Corporation Inc. is a company which only a few have heard of in India, unless you’re in the agriculture & biotechnology field, but this company is one of the largest biotechnology giants in United States and Canada. They are a leading producer in the field of genetically engineered (GE) seeds and herbicides in the world. They also hold patents over these genetically modified genes and cells. A bit too much to understand? Let me simplify it for you.

Genetic engineering in seeds involves altering the Deoxyribonucleic Acid (DNA) of the seed or adding a new gene altogether, in order to increase yield within the same piece of land and reduce damage due to adverse weather conditions or weeds and insects, or pesticides – these being the primary advantages of genetic engineering.

So in simple words, Monsanto modifies a seed in such a way that if you spray their herbicide on these genetically engineered crops, they won’t wither, while the non-genetically engineered plants will. Most of the genetically engineered seeds are called Roundup Ready Crops (or RR Crops), and what’s even more worrisome is that they manufacture their own herbicide called the Roundup Ready herbicide, which if sprayed on Roundup Ready Crops will cause no damage or deterioration to them, which they will cause damage to the other non RR Crops. These seeds are also known as Glyphosate resistant seeds. They are no different in physical appearance from ordinary seeds and can be differentiated only through chemical testing, or by spraying the Roundup Ready herbicide.

Monsanto offers these seeds for sale through its outlets or through authorized seed agents. But it comes with a clause, which must be read with scrutiny. Any farmer who wishes to grow any Roundup Ready seed must enter into a licensing agreement called a Technology Use Agreement (TUA) which states that on purchasing these seeds, one must use the seed to plant a single crop only and to sell the crop for consumption to a commercial purchaser authorized by Monsanto. A licensed farmer may not give or sell the seeds to any third party, or save them for replanting or as buffer inventory.

As always, everything has a positive and a negative side to it. This will definitely increase yield since these crops will be less vulnerable to damage due to herbicide treatment and will have heightened weed control. But imagine you are a farmer who does not want to grow these seeds – you only want to grow non-organic and non-genetically engineered seeds. Now, adjacent to your farm is another farmer friend, who is a Monsanto-licensed farmer and grows Roundup Ready Canola, for example. So he signed the TUA with Monsanto and grows the GE Roundup Ready Canola seeds. As we are all aware about the phenomenon of pollination in plants with the help of wind, a couple of the pollens come to your land in contact with your non GE plants, and reproduce a new variety of seed. And this seed is a GE seed! As per your usual farming practice, you harvest your crop and save your seeds for the next farming season, and you do not use the Roundup Ready herbicide, and therefore cannot distinguish the two varieties of plants. When you sow your saved seeds in the next farming year, you don’t realize that about 15% of your crop contains Monsanto’s seeds, which contain the patented genes and cells. Since these seeds or plants are indistinguishable to the naked eye, you can’t make out the difference and continue harvesting and saving your produce. Over a period of time, the percentage of Monsanto’s seeds will only continue to increase due to harvest and saving for subsequent years.

Let us also assume a parallel situation. Suppose you are using the Roundup Ready Herbicide in your farming practice, and after spraying it on your field, you find that some of the crop dies while the rest remains healthy. You have also been saving your seeds in the past. You find out that you have Monsanto’s seeds on your farm. You’re now in a catch-22 situation, and you cannot escape.

Monsanto is a big company, and they would not want anybody to use their patented product without authorization. So they conduct tests on farms in and around licensed farm lands. They discover that you are not a licensed farmer but are growing their seeds. You haven’t paid royalty to use the seeds and worse, you are and have been saving all your seeds for future replanting. They file a patent infringement suit.

The factual situation just described is identical to the facts of most Monsanto court cases. The percentage of Monsanto’s seeds on a victim’s land might vary in each case. There are farmers who haven’t bought and don’t intend to grow Monsanto’s seeds, but are still accused of patent infringement. They are accused of using and reproducing the GE seeds without permission from Monsanto, thereby taking away their exclusivity to produce and distribute these seeds, which they are granted by law.

If you look at it from Monsanto’s perspective, Monsanto is definitely being hampered because of such patent infringement activities. They are granted exclusivity by law, but they are not able to exercise it due to infringement of this type. Once they have sold the seed to the farmer, and the farmer saves the seed for future replanting, they would lose monopoly and exclusivity granted by patent law principles, and all their R&D investment would go down the drain after the first sale.

But from the framer’s perspective, the farmers are innocent and do not intend to grow such plants. They cannot do anything about the phenomenon of wind pollination and therefore cannot stop the pollen grains from entering their land. They cannot and would not want to invest in chemical testing as they have taken no active steps in procuring such seeds. It’s a natural phenomenon.

What has happened in the past?

There are a number of Monsanto cases fought in the past, which have reached the Supreme Court of the United States and Canada. And it has always been the case that Monsanto ends up winning the case. Some of the most famous cases where Monsanto has enforced their patents are: Monsanto Canada Inc. v. Schmeiser, McFarling v. Monsanto Co., Monsanto Co. v. Geertson Seed Farms.

These Monsanto cases are majorly in the United States and Canada, and thankfully have not reached India. With the current food shortage situation and plight of farmers in the country, it would only add to their woes and financial burden. Food security will come into question and many farmers would run out of business.

What can be done in the future in places where they have already set foot?

In my opinion, the first step would be to avoid granting patents for such naturally recurring organisms in the future. These organisms reproduce and multiply continuously without us having to take any active steps. Even though an argument would be that only the gene and cells of the seeds are patented, what is a seed without its gene and cell? They are what constitute the pivotal component in a seed and ultimately a plant. There is a doctrine called the “expansive doctrine” which was explained by Professor David Vaver in his book Intellectual Property Law: Copyright, Patents, Trade-marks (1997) which extends the meaning of the word “use” in patent infringement not just to the internal component, but to the entire product itself, only if the component plays an important role in the production process – like how cells and genes are important to a seed and plant.

Second, even if a patent is granted for such a product or process, public interest must be taken into consideration before enforcing such a claim. There are farmers who do not intend to grow these plants, but are still victims to such infringement actions. Why should they be liable for patent infringement? It has been mentioned on Monsanto’s website that they do not exercise their patent rights where “trace amounts” of their patented product is present in fields through inadvertent means. The term “trace amounts” is debatable. It can be anywhere between 1% and 5% from a common sense point of view. And innocent farmers who save these seeds and replant them year after year will definitely have more than 5% of their crop contaminated with Monsanto’s seeds. Therefore, public interest must be a major factor in such innocent and inadvertent patent infringement cases where there has been innocent possession of the patented article through natural means.

This is not even a question of innocent infringement, but it is a question of innocent possession of a patented item, which has not been actively or passively acquired. In fact, we can also say that since the company is not controlling their product, they are contaminating the pure non-genetically engineered plants. The Company should be taking sufficient steps to prevent the straying off to innocent farmers’ land but constructing buffer zones at the company’s expense. It does sound a bit superficial but since Monsanto is a big corporation which invests millions of dollars per day into research and development, they could afford to take this step. This will serve both purposes – it will protect their patented product from infringement, and will also prevent such infringement cases against innocent farmers.

This article is contributed by Akash Srinivasan.

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