Intellectual Property Forums (http://www.intelproplaw.com/Forum/Forum.cgi)
Other >> News >> America Imposing its Patents on Iraq
(Message started by: eric stasik on Nov 12th, 2004, 6:47am)

Title: America Imposing its Patents on Iraq
Post by eric stasik on Nov 12th, 2004, 6:47am
A new report by GRAIN and Focus on the Global South has discovered that the US has created legislation in Iraq that imposes US style patent protections on plants.

This legislation, together with the sowing of GM crops in the Fertile Crescent by US agencies funded by the Pentagon, threaten to fundamentally change the way in which Mesopotamian farmers have grown their crops for thousands of years.

Is this something that should be imposed on a country  or should each nation choose for itself whether or not to accept GM crops and the attendant patent protection on plants?  


http://mindfully.org/Food/2004/Iraq-World-Food-Day15oct04.htm

Title: Re: America Imposing its Patents on Iraq
Post by JimIvey on Nov 12th, 2004, 10:10pm
Nothing the US government does in Iraq is all that surprising to me.

The interesting part of this story is that the patented invention is self-replicating (genetically engineered grain) and thus is self-infringing as it "makes" the invention by natural plant reproduction.  The license Monsanto uses forbids customers from keeping any of the seed from the previous crop to re-plant the following season.  That was big news here a year or two ago.

I don't see why Monsanto can't put that into their licensing agreements, but it's just an odd thing to have to worry about -- self-replicating inventions.

Regards.

Title: Re: America Imposing its Patents on Iraq
Post by Wiscagent on Nov 13th, 2004, 7:26am
I doubt that Monsanto is selling a significant quantity of grain in Iraq right now.  And given the lack of security and poverty in that country, it will take at least 5 - 10 years before a market and an effective system of civil law develop.  Assuming that Iraq's patents expire 20 years from the priority date, the patents will expire on the currently commercial seeds from Monsanto before there is a legal system capable of enforcing patents develops in Iraq.

Regarding the referenced article, it perpetuates a fallacy commonly seen in discussions about patents for inventions developed in wealthy nations, especially on pharmaceuticals and plants.  The article gives the impression that it would be illegal for an Iraqi farmer to continue the age-old practice of harvesting grain, setting aside some grain, and planting the saved grain the following season.  This would only be true if the farmer was using a patented variety of grain.  Any variety of grain that was in use more than 20 years ago is not protected by patent.  

Only if the farmer acquired the new (patented) variety of grain, and was especially satisfied with it, and so wanted to grow it again, would this whole patent issue be relevant.  I'm not familiar with Iraqi agricultural practices, but I doubt that they are on the leading age of testing the latest agri-tech seeds.  I think it is mostly a non-issue for the Iraqi farmer.


Richard Tanzer
Patent agent

Title: Re: America Imposing its Patents on Iraq
Post by Isaac Clark on Nov 13th, 2004, 8:23am
I don't think it's so simple as having a choice to use or
not to use seed.  The GM plants will likely end up on your
property whether you want them there are not.  If they do get
there even innocently, you may not be able to harvest your own seed
without infringing a patent.

But there may not be a problem because the Iraqis may want the
superior plants.  I just haven't heard anything that presents
their perspective.  Most of the stuff I read on web sites is so
politically charged or otherwise so agenda laden that it's
impossible to get a balanced opinion.

I have to admit that I'm a little ambivalent about the IP/sovereignity issues.  While it's
clear that in the long run strong IP laws are a good tactic, it
isn't clear that they are a good starting point for a new
democracy.  The US certainly did not start out respecting the copyright
laws of countries, and nobody gives the patents of other countries
any force.

OTOH, I don't see countries with a say in the matter chosing
to let other countries exploit their IP for nothing.  It isn't
good business.

Title: Re: America Imposing its Patents on Iraq
Post by JimIvey on Nov 13th, 2004, 11:42am
This is all raising an interesting issue.  What happens if GM crops are patented and some of the GM genes propagate into other fields, potentially all fields and all crops?  You've got a patented invention that "consumes" other, non-infringing alternatives.  At least it potentially converts non-infringing crops into infringing crops.

What happens if the neighbors crops are tested and 10% of the grains have patented genes?  I'm assuming testing all grains individually for completely non-infringing re-planting is prohibitively expensive for the neighboring farm(s).  How 'bout 40%?  50%? 60%? 80%?  If there's a line, where is it?

Now, suppose we move that model into something I have a little experience with: software....  How 'bout a patented anti-worm worm?  It propagates itself and protects the host (in the parasitic sense) computer from other worms.  Now, those host computers into which the worm spread infringe the patent.  

I'm not sure the law is ready to handle self-propagating, invasive patented inventions.  Fascinating....

Title: Re: America Imposing its Patents on Iraq
Post by Isaac Clark on Nov 13th, 2004, 4:10pm

on 11/13/04 at 11:42:52, JimIvey wrote:
This is all raising an interesting issue.  What happens if GM crops are patented and some of the GM genes propagate into other fields, potentially all fields and all crops?  You've got a patented invention that "consumes" other, non-infringing alternatives.  At least it potentially converts non-infringing crops into infringing crops.

What happens if the neighbors crops are tested and 10% of the grains have patented genes?  I'm assuming testing all grains individually for completely non-infringing re-planting is prohibitively expensive for the neighboring farm(s).  How 'bout 40%?  50%? 60%? 80%?  If there's a line, where is it?

....



Some of the issues you raise came up in the case of Percy Schmeiser vs. Monsanto that made it all the way to the Canadian Superme Court.    Schmeiser did not end up having to pay Monsanto for having their seed end up on his property, but he was found to have infringed the patent and was required to give up his crop.


Title: Re: America Imposing its Patents on Iraq
Post by malbright on Jan 25th, 2005, 3:04pm

on 11/13/04 at 07:26:20, Wiscagent wrote:
Regarding the referenced article, it perpetuates a fallacy commonly seen in discussions about patents for inventions developed in wealthy nations, especially on pharmaceuticals and plants.  The article gives the impression that it would be illegal for an Iraqi farmer to continue the age-old practice of harvesting grain, setting aside some grain, and planting the saved grain the following season.  This would only be true if the farmer was using a patented variety of grain.  Any variety of grain that was in use more than 20 years ago is not protected by patent.  

Richard Tanzer
Patent agent


Although as of yet not widespread in other countries, companies can and do bring lawsuits against farmers for saving seeds.  Monsanto has brought over 400 lawsuits against individual farmers for patent infringement, the most famous being the Schmeiser case.  And, although the original Supreme Court case understood that patent policy could be applied to genetically manipulated life forms only, recent cases have shown that plants and seeds that are genetically identical to their natural counterparts can and have been patented.  (The genes of such life forms have been "purified," the junk taken out of them, but a rose by any other name...)  Last year, Monsanto briefly held a patent that described the natural (non-genetically modified) wheat variety called Nap Hal.  Similar claims have been made on neem and quinoa.  

This should come as no great surprise, and it does not implicate Monsanto or any other agrochemical companies.  Like all companies, they are only fighting for a greater share of their market.  And they are using legal means to do so.  Imagine the market possible if one owned all the agricultural foodstuffs in the world!  And if you owned patents covering all the wheat varieties grown in Iraq, why wouldn't you use it to make a profit?  Why get a patent if you're not interested in enforcing it?  

This doesn't seem to me to be a scary futuristic scenario dreamt up by liberals; it seems like business as usual.  The scenario, however, points out possible potholes in our patent system as opposed to corporate greed.  

Matthew Albright
Author

Title: Re: America Imposing its Patents on Iraq
Post by Iku on Dec 21st, 2005, 4:05pm
To Matthew Albright:

Aside from the basic immorality of patenting a lifeform so you can deny your fellow man the god-given right to grow his own food (and that is a BIG "aside" but for the sake of argument I'll let it go for now), if you take your argument to its logical conclusion then eventually it is possible that your human offspring might accidentally incorporate a "patented" gene in its DNA.  This would mean that you, as a parent, would be in violation of copyright laws, which means that the corporation that owns the patent on the gene would have the right to seize or destroy your own child.

Is that really the kind of world you want to live in?

Title: Re: America Imposing its Patents on Iraq
Post by JimIvey on Dec 21st, 2005, 8:21pm
Of course, if the gene in the child had been in use more than one year prior to any patent application filing to cover the gene, the patent would be invalid.  Patents could only hope to cover genetically modified children/people.  That world is already eerie enough without going into what sorts of injunctive relief might be available.  However, I would expect that certain types of injunctive relief would just not be available under those circumstances.

And, as a purely semantic matter, I always find it rather ironic that the label "God-given" is attached to "rights" by mere mortal men and women.  Farmers who don't want to abide by a seed seller's terms can buy seed elsewhere.  If they want free seed to replant the following year, use conventional, natural seed.  Seems pretty simple.

Regards.

Title: Re: America Imposing its Patents on Iraq
Post by Isaac on Dec 21st, 2005, 9:37pm
In cases like the Schmeiser case it just isn't as simple as just don't use the patented seed.  The patented stuff gets into everywhere and since infringement does not require any particular intent or mens rea, people who may have taken no steps to plant or exploit the properties of patented herbicide resistant seeds might end up losing their entire crops due to contamination.   Apparently the wind, bees, etc. just don't give a hoot about patent law.

Unfortunately I don't see a way to fix the problem without creating a huge loophole that basically guts Monsantos patent rights.

Title: Re: America Imposing its Patents on Iraq
Post by Wiscagent on Dec 21st, 2005, 9:55pm
Isaac wrote:  "... it just isn't as simple as just don't use the patented seed.  The patented stuff gets into [everything] ... people who may have taken no steps to plant or exploit the properties of patented herbicide resistant seeds might end up losing their entire crops due to contamination...I don't see a way to fix the problem without creating a huge [patent law] loophole ..."

Consider this scenario: Farmer Jones plants his traditional crop from last year's seed.  Last year Farmer Jones' crops were unintentionally cross pollinated with genetically enhanced crops (or Frankencrops, if you prefer).  

Monsanto purchases this year's crops, takes a close look and charges Farmer Jones with infringing their Frankencrop patent.

Wouldn't Farmer Jones have a cause for a countersuit against Monsanto for contaminating his crops?  From Jones' perspective, Monsanto's evil seed ruined his crops.

I would think that unless Monsanto can show that Jones' intentionally allowed his crops to be cross-pollinated, Monsanto would have an uphill battle arguing that they did not ruin Jones' crops.  Jones did not intend to grow their Frankencrap.


Richard Tanzer

Title: Re: America Imposing its Patents on Iraq
Post by Isaac on Dec 21st, 2005, 11:07pm

on 12/21/05 at 21:55:23, Wiscagent wrote:
Consider this scenario: Farmer Jones plants his traditional crop from last year's seed.  Last year Farmer Jones' crops were unintentionally cross pollinated with genetically enhanced crops (or Frankencrops, if you prefer).  

Monsanto purchases this year's crops, takes a close look and charges Farmer Jones with infringing their Frankencrop patent.

Wouldn't Farmer Jones have a cause for a countersuit against Monsanto for contaminating his crops?  From Jones' perspective, Monsanto's evil seed ruined his crops.


How would Monsantobe culpable?  They did not plant anything.  Are they responsible for the actions of the farmers they sold seed to?  


Quote:
I would think that unless Monsanto can show that Jones' intentionally allowed his crops to be cross-pollinated, Monsanto would have an uphill battle arguing that they did not ruin Jones' crops.  Jones did not intend to grow their Frankencrap.


Infringement does not require intent to infringe.  

If Jones did not do anything and the plants just grew, he is not the infringer.  But if he irrigates, fertilizes, etc and the result is that some infringing plants grow arguably he is making a patent product.  Even if Jones can escape infringment from making patented plants, he cannot escape the consequences of selling the unintentionally grown plants.  If he is unable to separate them from conventional plants, he loses his entire crop.


Title: Re: America Imposing its Patents on Iraq
Post by Wiscagent on Dec 22nd, 2005, 7:40am
Isaac -

I agree with your assessment of the infringement issue in the Farmer Jones scenario.

What I’m still unclear on is Monsanto’s level of responsibility for opening a Pandora’s box that resulted in Jones’ crops being ruined (if he wanted to sell them as “all natural”).  Wouldn’t this be an apt analogy?

  I start a fire to clear out weeds in my field.  Whether
  through carelessness, or just an unpredictable shift in
  the wind, I destroy your crops.

Wouldn’t I be liable for your loss?  Isn’t Monsanto’s failure to control its gene line analogous?

 - Richard Tanzer

Title: Re: America Imposing its Patents on Iraq
Post by Isaac on Dec 22nd, 2005, 10:50am
I think you can argue that there is what the organic farmer would perceive as an injury, but a question might be whether it is an injury the law would recognize, and for which the law provides a remedy.  Finally there is the question whether the law would find Monsanto the proximate cause in the chain of causation.

Maybe Monsanto would be like a match salesman who sold matches to someone who set brush fires, and the causation chain (for liability purposes) would not reach the match salesman even though he may be an actual cause.

I'm frankly skeptical that Monsanto would be liable, but I haven't done any research.



Powered by YaBB 1 Gold - SP 1.3.2!
Forum software copyright © 2000-2004 Yet another Bulletin Board