ngin - Norfolk Genetic Information Network

6 January 2003

FARMERS' RIGHTS/MONSANTO LYING/OPPOSING PATENTS

"History has many records of crimes against humanity, which were also justified by dominant commercial interests and governments of the day... Today, patenting of life forms and the genetic engineering which it stimulates, is being justified on the grounds that it will benefit society, especially the poor, by providing better and more food and medicine. But in fact, by monopolising the 'raw' biological materials, the development of other options is deliberately blocked. Farmers therefore, become totally dependent on the corporations for seeds".  Prof. Wangari Mathai of the Green Belt Movement Kenya

"I ran into Hofmann after the trial. He apologized to me for lying about supplying Monsanto with a sample of clean Roundup Ready canola seed for use in court. He told me that Monsanto had taken him on trips, to lunch and given him free products to use on his farm." (item 2)
 
"I've taught patent law for most of the past 20 years... The first time you expose law students or lawyers without any background in the topic to the idea that you can actually patent genes, they all have the same reaction -- 'You've got to be kidding! You can't do that.'" (item 3)

1.Genetic Contamination and Farmers' Rights
2.Monsanto Lying about 98% of Crop Being Genetically Modified
3.OPPOSING PATENTS ON GENES, PROTEINS POSSIBLE
4.EC CALLS FOR IMPLEMENTATION OF PATENT DIRECTIVE

Other items on patents:
The Monsanto Amendment - Vandana Shiva on how Indian farmers could be trapped in a patent monopoly
http://web.greens.org/s-r/30/30-19.html
Treaty to Establish the Gene Pool as a Global Commons
http://web.greens.org/s-r/28/28-23.html

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1.Genetic Contamination and Farmers' Rights

by Percy Schmeiser
Synthesis/Regeneration 29 (Fall 2002)
http://web.greens.org/s-r/29/29-21.html

My name is Percy Schmeiser. I am a Canadian farmer. For the last 50 years my wife Louisa and I have farmed 1441 acres in Bruno, Saskatchewan. We have built up a farm that works well. Rapeseed is an important crop for us and we used to sell it all over the world for cooking oil and cattle feed. Like most farmers in Western Canada, I collected and stored my own seed. After years of selection I had a variety that gave a good yield, was quite resistant to local diseases and was relatively weed-free.

In 1997, I sprayed Roundup as usual on the weeds and stray rapeseed plants growing around my fields. I was surprised that so much rapeseed survived the application. Had I got the herbicide concentration wrong? I now realize this was the first sign that my fields had been contaminated by genetically modified (GM) rapeseed.

My neighbors and 40% of farmers in Western Canada plant GM rapeseed. Since 1993, Monsanto Canada has been licensed to use technology that will make plants resistant to its glyphosate herbicide, Roundup.

Farmers can then use Roundup as a broad-spectrum herbicide without damaging their GM crop. In 1995, Canada approved the uncontained release of GM rapeseed and in 1996 local companies started selling GM varieties.

Although Monsanto owns the gene and the technical know-how, they have done little to contain their invention once it entered the environment. In 1998, Monsanto inspectors entered my land without permission and took rapeseed.

They accused me of planting GM rapeseed without a license and prosecuted me.

If Monsanto suspects farmers are growing GM rapeseed without a license, they take away rapeseed plants for inspection. If test results are positive and the license fee of $15 (Canadian) per acre and contract have not been met, legal proceeding for infringing Monsanto‚s patent follow.

In my case, GM plants had seeded themselves on my land and pollinated my conventional rapeseed. The following planting season I tried to contain GM contamination by buying new seed but still 20% of my harvest was contaminated.

In Canada there is no law against carrying rapeseed in open trucks or leaving cut rapeseed in the field. This makes it easy for the small seeds to spread. It is also impossible to contain pollen flows. The gene responsible for glyphosate resistance is a dominant gene and rapeseed is an open pollinated plant. When a GM plant crosses with conventional rapeseed, resistance will be carried into the following generation. In my fields the GM variety was thickest along the roadway. There was little in the field itself. When I received the court summons I wondered why anyone would think I had deliberately mixed GM rapeseed with my own seed. The only advantage of growing GM rapeseed is its resistance to Roundup. If farmers spray Roundup on a mixed GM and non-GM crop they can expect big losses. In my defense I argue that possessing the seed does not violate Monsanto‚s patent. It becomes a violation when I spray my crop with Roundup and activate the innovation˜the gene that confers glyphosate resistance.

When this gene incorporates itself into a seed or plant, what are Monsanto‚s rights? The seed and plants are the farmer‚s property. GM rapeseed has the ability to intrude where it was not planted. It has the ability to replicate itself. I believe Monsanto lost its right to exclusivity when it lost control of its invention. How can farmers avoid GM rapeseed getting into their crops and becoming a contaminating weed? These questions are now being discussed by Canada‚s Federal Court.

Today, we cannot sell our rapeseed abroad and other products are being affected too. Just recently the Netherlands rejected a consignment of Canadian honey because it was contaminated with GM material. Organic farmers in our district have a particular problem because they cannot meet the GM-free standard for organic certification.

Farmers dread the financial consequences of litigation. Today I face legal bills of $200,000 (Canadian). Monsanto‚s legal bill is $400,000 (Canadian). If I lose I will have to pay Monsanto‚s costs as well.

But I have to fight. I know from the support I have received from all over the world that farmers need to protect their rights to choose the technology they use, the crops they grow, and the seeds they save. Particularly in developing countries farmers‚ livelihoods depend upon their right and ability to select and save appropriate seed and maintain an ecological balance on their farms.

I have filed a countersuit against Monsanto. I know many farmers are watching how my struggle proceeds.

See information regarding a video of Percy called "Heartbreak in the Heartland: The True Cost of Genetically Engineered Crops." You can read the text that Paul Goettlich transcribed from the video (link to free online video and VHS purchase) at:
http://www.mindfully.org/GE/GE4/Heartbreak-In-The-Heartland21jul02.htm

Follow the Percy Schmeiser case on http://www.percyschmeiser.com/

Note. At the time of printing $3 Canadian exchanged for $2 US.

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2.Monsanto Lying about 98% of Crop Being Genetically Modified

by Percy Schmeiser
Synthesis/Regeneration 29 (Fall 2002)
http://web.greens.org/s-r/29/29-21.html

One point about my struggle against Monsanto that really bothers me is its claim that something like 98% of my 1998 canola crop tested positive for the presence of the  Roundup gene.  Monsanto is being deceitful in this regard. I do not believe that this sample with such a high reading came from my farm.  Before sowing my 1998 crop, I took some of my seed to Humboldt Flour Mills for inoculation against diseases and insects. Later, I learned that the milling company had kept one sample, which it returned upon my request.

In 1999 Monsanto formally accused me of illegally planting its transgenic seed the year before. It based this accusation on what its agents claimed was Roundup-resistant canola that they found growing in the ditch next to my fields.

Feeling uneasy about the pending lawsuit, I took samples from all of my fields, plus what the flour mill had returned to me, to the University of Manitoba to be tested for the presence of Monsanto‚s patented genes. I had to send the samples there at my expense because Agriculture Canada, a government agency, refused to test my seed. Yet, it did testing for Monsanto at taxpayer expense.

The University of Manitoba test results revealed no detectable level of modified genes in several of the samples; in two other samples they detected 2% and 8%. The samples taken from the field and the ditch where I first noticed the Roundup Ready canola volunteers growing had a 60% level of genetic contamination. Notably, those areas abut land on which my neighbor planted Roundup Ready canola in 1996. Seed and/or pollen from those canola plants, could quite easily have been transported to my field.

Months before the June 2000 trial began I received some shocking news.

Monsanto announced that an employee of Saskatchewan Wheat Pool, which a year before had purchased Humboldt Flour Mills, found and turned over a sample of my seed from 1998. (Saskatchewan Wheat Pool was and is licensed to sell Monsanto‚s genetically modified canola seed.)

I phoned the employee, Morris Hofmann, to ask how he knew it was my seed. Hoffman replied: „You don‚t know.‰

At trial, Hofmann, a good friend to the local Monsanto representative, testified that he had found the sample. My lawyer, Terry Zakreski, pointed out that it would be difficult to know, after the passage of two years, the origin of the seed. To wit, I had not cleaned my saved (bin run) seed, full of chaff, that I delivered to Humboldt Flour Mills in 1998 for inoculation.  The one-pound sample that the mill later returned to me was in the same condition. Contrast that with what Monsanto claimed Hofmann had discovered: 20 pounds of clean seed in Saskatchewan Wheat Pool bags.

I ran into Hofmann after the trial. He apologized to me for lying about supplying Monsanto with a sample of clean Roundup Ready canola seed for use in court. He told me that Monsanto had taken him on trips, to lunch and given him free products to use on his farm.

But he wasn‚t the only witness whom Monsanto wined and dined. Hofmann told me that Monsanto had a reception room where liquor and other refreshments were served to witnesses while the trial was happening.

Reprinted from May 24, 2002 CropChoicewith permission of the author.

For more Monsanto deceit:
http://ngin.tripod.com/deceit_index.html

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3.OPPOSING PATENTS ON GENES, PROTEINS POSSIBLE THROUGH PRODUCT OF NATURE DOCTRINE

January 2, 2003
University of North Carolina at Chapel HIll

CHAPEL HILL -- People troubled by the fact that the United States government has granted patents on genes and is likely to continue may find new hope through a legal argument being made by a University of North Carolina at Chapel Hill patent expert and a Philadelphia law student.

Dr. John M. Conley, William Rand Kenan, Jr. professor of law at UNC, and Dr. Roberte Makowski, a former agricultural biologist now studying law at Villanova University, say opponents of such patents have not taken advantage of the long-standing "product of nature" doctrine.

They offer their opinions on biotechnology patents in the current issue of the Journal of the Patent & Trademark Office Society, the principal publication for patent attorneys.

"I've taught patent law for most of the past 20 years, and during that time, my course has increasingly concerned genetic and other biotechnology patents," Conley said. "The first time you expose law students or lawyers without any background in the topic to the idea that you can actually patent genes, they all have the same reaction -- 'You've got to be kidding! You can't do that.'"

Conley assures them that he -- or anyone else -- can.

"You can't patent genes inside the body, they have to be isolated outside it, and in most instances, the patented genes have nonfunctional regions excised from them," he said. "What are ultimately patented are versions of DNA sequences in the genes as they exist outside the body, but they are still genes we're talking about and also proteins and cell lines. It's not just the new uses to which you can put genes such as gene therapy that are patentable."

Widespread concern exists about the ethics, economics and long-term effects of biotechnology patents, Conley said. Opponents have had difficulty, however, finding a legal hook to hang their concerns on, and the courts have rebuffed them repeatedly.

"People who look at this from an economic perspective say it seems inefficient and counterproductive to let others monopolize genes, proteins, etc. before the full range of uses you can put them to can be known," he said. "It seems like you will have a blocking effect on future progress. Many other people are saying such patents are just wrong and ought to be limited."

The courts, including the U.S. Supreme Court, have understood but not accepted those arguments, Conley said, because they say existing laws appear to allow such patents. Likewise, members of Congress have expressed reservations, but nothing has changed.

An issue that seems to have been glossed over in the court cases is how some biotechnology patents have been granted in the face of the more than century-old "product of nature" doctrine, he said. Just as it sounds, that essentially flat rule is that one cannot patent naturally occurring products.

"We examined the history of the 'product of nature' doctrine and the cases where it was applied and concluded that the patent community generally has skated right past this without really pausing to think about it or to use it," the UNC professor said. "These cases assume that anything that's outside the body is not a product of nature and that there's enough difference to get past the doctrine.

The most famous related Supreme Court case, in which a scientist named Ananda M. Chakrabarty persuaded the court in 1980 that he should be issued a patent, was not a good one for testing the doctrine as a legal barrier since Chakrabarty inserted new DNA into a bacterium to create a species that had never existed before, he said.

"Based on our research, we believe that this doctrine is still out there and that the issue needs to be argued more vigorously by those who oppose certain kinds of biotechnology patents," Conley said. "We think it may be a hook people who want to slow the whole process down can use to their advantage. Every other hook they have tried so far has not worked."

Conley said the huge biotechnology industry is doing good things, particularly in medicine, and he is no fanatic in opposing biotechnology patents.

"The problem here is the unknown," he said. "For example, patents have been issued on so-called BRCA genes that in some cases are thought to cause breast cancer or predispose some people to breast cancer. If I have a patent on such a gene, I can effectively block all research on that gene because anyone who wants to do research on it has to come to me for a license, which I might choose not to give them.

"Given the enormous and as yet poorly understood potential for genetics in medicine, it seems to me troubling very early in the game to allow these enormous blocking patents way upstream."

Reopening such questions is worthwhile because of a tradition in U.S. intellectual property law that issues many thought to be resolved have been re-examined and sometimes reversed or modified considerably, Conley said.

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4.EC CALLS FOR IMPLEMENTATION OF DIRECTIVE

January 3, 2003
Crop Biotech Update

The European Union has officially requested nine Member States to implement Directive 98/44/EC on the legal protection of biotechnological inventions.  Germany, Austria, Belgium, France, Italy, Luxembourg, the Netherlands, Portugal and Sweden were asked to comply with the Directive which aims to clarify certain principles of patent law to fully exploit the medical, environmental and economic potential of biotechnology.

Given the considerable amount of high-risk investment that is often required in biotechnology, particularly genetic engineering, adequate patent protection is essential to encourage the investment required to create jobs and maintain the European Union's competitiveness in the field.  According to the European Union, Directive 98/44 was adopted by the Council and the Europeans due to numerous discrepancies between the Member States' laws. To date, however, only six Member States have implemented the Directive into national law, which has created barriers to trade and hampered the operation of the internal market.

The EU says that life sciences and biotechnology offer considerable potential in many areas, especially health care, agriculture and environmental protection. By 2005, the European biotechnology market could be worth over ?100 billion. By 2010, global markets, including sectors where life sciences and biotechnology constitute a major portion of new technology applied, could amount to over ?2,000 billion, excluding agriculture.

More information at
http://www.europa.eu.int/rapid/start/cgi/guesten.ksh?p_action.gettxt=gt&doc=IP/02/1928|0|RAPID&lg=EN
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PANTS ON FIRE - HOT SHOTS OF 2002!

2002 was a banner year for biotech hype with one breathtaking smoke-and-mirrors PR stunt after another.

Over the coming days we'll be presenting the GM WATCH end of year report on THE SMELL OF BURNING TROUSERS - a guide to the smelters of the choicest lies, disinformation, PR chicanery and unfounded abuse of 2002.

The winners will be acknowledged with the coveted PANTS ON FIRE AWARD - blazing undergarments made from the finest GM cotton:
http://ngin.tripod.com/pants.htm

Coming soon the final selection:
6 MAJOR CONTRIBUTORS TO GLOBAL WARMING 2002

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