5 October 2001
BLOWIN' IN THE WIND & CORPORATE SERFDOM OFFICIAL
1. More on gene flow in Mexico
2. GMOS: BLOWIN' IN THE WIND
3. GM & Corporate Serfdom Official
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1. More on gene flow in Mexico
originated Chuck Benbrook <benbrook@hillnet.com>
More on gene flow in Mexico. Recall the letters in the Feb. and
May, 2000 issues of Science Magazine on this topic. The original,
"nothing to worry about" letter --
http://www.biotech-info.net/mexican_maize.html
The response, yes, it will happen (and now has) --
http://www.biotech-info.net/mexico_maize_letter.html
***
2. GMOS: BLOWIN' IN THE WIND
Dr. Daryll Ray, http://agpolicy.org
When a controversy breaks out, the ensuing debate often generates more heat than light as the combatants choose their corner and begin to duke it out. Certainly the GMO controversy is a case in point.
Of all of the concerns surrounding GMO seed, we want to focus on just one issue in this column, that of the spread of patented genetic material to neighboring fields. To help us focus, let us look at two cases.
The first example is the case of Percy Schmeiser, a Canadian canola grower who for forty years has grown and bred his own variety of canola. In 1997, Schmeiser found evidence of glyphosate tolerant (RoundUp Ready®) canola in his fields. He did nothing about it and saved seed from one of his fields for use in 1998. Farmers who purchase glyphosate tolerant canola have to sign a license agreement agreeing not to save seed from one year to the next. Schmeiser, however, has never purchased canola requiring such an agreement. In 1998, Monsanto found evidence of their patented glyphosate tolerant genetic material in Schmeiser's canola and ended up suing him in court. They did not assert that Schmeiser obtained the patented genetic material illegally. This past spring the Canadian court found Schmeiser guilty of "selling or otherwise depriving the plaintiffs [Monsanto] of their exclusive right to use plants which the defendants [Schmeiser] know or ought to know are Roundup tolerant, or using the seeds from such plants." The court held that Monsanto had the right to retrieve their patented genetic material in Schmieser's canola even though they could not prove how it got there.
In the second case, Laura Krouse operates a seed corn business outside of Mt. Vernon, Iowa. Her specialty is an open-pollinated seed corn that traces its heritage back to a world champion ear of corn that was exhibited at the 1903 World Corn Exposition in Chicago.Ý For nearly 100 years, Laura and her predecessor have selected this Yellow Dent corn for a variety of desirable traits. Most of the purchasers of her seed corn are organic growers who want corn that has not been genetically modified. ÝÝPresently, Krouse's crop has been tested and is GMO-free.
Although it hasn't occurred yet, what happens if Krouse's corn is pollinated by pollen from a neighboring corn field that contains patented GMO material?
· Does the patent holder have the right to retrieve the genetic material by claiming the production in Krouse's 6 acre field?
· If the genetic material that belongs to the patent holder has contaminated her crop, does Krouse have the right to obtain damages from the patent holder or the farmer who grew the patented crop?
· Does Krouse have the right to claim damages for lost production of her Yellow Dent corn's genetic line in perpetuity?
· Can the patent holder successfully argue both that they have the right to their patented material as in the Schmeiser case and that they are not liable for any contamination that might take place with Krouse's Yellow Dent corn?
Several years ago, in order to protect the hard work and financial resources invested in plant breeding and GMO technologies, patent laws were modified to allow for the patenting of life forms and new technologies like GMO. Because of issues that have surfaced in the intervening years, we now face the question of whether or not new laws are needed to resolve some of the areas of contention. Several issues have at their root the potential for uncontrolled or undesired spread of patented genetic material into neighboring fields.
One well-established principle that has governed the agricultural practices of farmers working adjacent or nearby fields is the do-no-harm principle. Historically, courts have recognized this principle.Ý That means that, as a farmer, I need to refrain from agricultural activities that will diminish the value of my neighbor's land or production. If my cattle get out of my pasture and destroy an acre of my neighbor's corn field,Ý I need toÝ reimburse my neighbor for the lost production.
In the same way, if I recontour my field to eliminate an area that holds water and my recountouring causes water to drain on to my neighbor's field increasing the size of one of his wet spots, then I am liable for damages. When it comes to agricultural practices, my property rights are not absolute. They are limited by the do-no-harm principle. I am free to work my field as I choose so long as my decisions do no harm to my neighbor.
Likewise most agricultural counties have noxious weed ordinances. These ordinances place a burden upon each farmer to kill or remove any weed on their land that is deemed to be noxious. Even though a weed like the common thistle is a natural part of the landscape, I am required to kill those plants that grow on my property so that the seeds don't blow into my neighbor's field causing him harm.
As the spraying of agricultural chemicals, particularly herbicides, became more common, a new problem began to appear. Who is liable if my crop is damaged because of spray drift from my neighbor's field? While the specific issue was new, the resolution of the issue was not. Grounded in the do-no-harm principle, it has been determined that the one doing the spraying is liable for any damages incurred. What happens if I benefit from the spray drift because I am growing the same crop and I have a weed problem? In that case, I owe my neighbor nothing. Any benefit I enjoy is mine to keep.
In summary, some of the property rights questions that may need to be considered are:
· Are the owner of the patented material and the farmer who grows GMO crops responsible if patented genetic material contaminates a neighbor's non-GMO crop?
· Do producers of non-GMO crops have the right to expect that their fields will not be contaminated? Or, do they have the responsibility to protect themselves from errant patented genetic material?
· Should growers of non-GMO crops have to notify the owner of patented genetic material if they find evidence of that material growing in their fields? Whose expense is it? Who compensates the grower for lost production?
· At what point does the patent holder of genetic material lose control of its patent? Is it when pollen drifts onto a neighboring field?
· Should the patent office refuse to patent genetic material unless the applicant can prove that there is no risk of out-crossing?
· How does a genetic material patent holder protect itself from unauthorized use of its genetic material?
· What incentives ought to be offered plant breeders to make it feasible for them to make the massive investment needed to develop new seed technologies?
· What procedures do growers have to undertake to if they quit growing GMO crops? If their new crop is contaminated by pollen drift, how do they prove that they did not illegally save GMO seed?
These and a host of similar questions need to be addressed as we move forward into a world with technologies (and thus issues) that were not even thought about a couple of years ago. Only by rational discussion of these issues will we be able to have more light and less heat.ÝÝÝÝ
You will find a complete listing of Dr. Ray's articles on
www.agpolicy.org/Weekly_Columns.htmÝ
***
3. GM & Corporate Serfdom Official
ISIS Report, - 4 October 2001
We are witnessing the most outrageous acts of corporate theft and domination in history. At its heart is the manipulation of life-forms and the use of this technology to gain control over the food chain. Nick Papadimitriou charts the recent antics of Monsanto.
Giant agbiotech companies such as Monsanto are aggressively imposing a new form of serfdom on North American farming practices. By patenting both naturally occurring gene sequences and genetically modified forms of life, Monsanto can use aggressive lawsuits to ward off any potential rival. At the same time, insidious forms of surveillance and barely concealed threats are whittling away any options farmers have for getting seeds from other suppliers.
In April, Monsanto secured a "torpedo" patent designed to sink all rivals on antibiotic resistant marker genes used in practically all GMO crops [1]. This immediately resulted in court battles and a requirement for everyone who has made use of the technology to pay Monsanto royalty fees. Monsanto has now launched another torpedo. A patent is pending on the complete genome of Agrobacterium tumefaciens. The bacterium is used in a vector system to insert new genetic material into crop plants and is a staple of the agricultural biotechnology sector. The patent has been pending for 18 years, as challenges were made by rival companies claiming to have invented the same. But the original technology was actually developed by non-industry academics on government funds [2].
Monsanto stipulated in its "New Monsanto Pledge", announced last November, that it was committed to sharing knowledge and technology in order to benefit people and the environment [3]. Working with a research team from the University of Richmond, the company purports to have placed the genome of Agrobacterium tumerfaciens onto a ‘public’ database. However a perusal of the terms and conditions reveals that access is strictly limited to non-profit groups willing to enter into a licensing contract with Monsanto.
A similar arrangement holds with the Monsanto genome database for rice. The database registration agreement, available for download at Monsanto’s devoted site, places severe restrictions on would-be researchers. Any patent resulting from information in the database has to be filed with Monsanto, and this applies anywhere in the world. Monsanto reserves the right to claim royalties for such work. Even more disturbingly, information on the database that is duplicated in any public source, and gained from that source, is also subject to those conditions. Unrestricted publication of research gained from using Monsanto’s database is limited to 250 kilobases [4].
That is only half the story so far. Monsanto has become renowned for throwing its weight about in the farming community. Several hundred lawsuits are pending following the successful prosecution of Canadian farmer Percy Schmeiser for alleged illegal possession of Monsanto’s Round Up Ready canola. Schmeiser has now launched an appeal citing seventeen instances of the judge having erred or judged contrary to law. Amongst these are the determination that a farmer who inadvertently grows Roundup Canola has no right to grow or sell any such seeds or plants regardless of how they came to be there. Another crucial ground for appeal is that Justice McKay placed the onus on Schmeiser to prove how the seeds came to be in his field whether by contamination or otherwise [5]. Monsanto subsequently set up a "snitch" line, advertised on radio stations in western Canada, to encourage reports on other alleged ‘malpractices’. Following protests, this has been dropped [6].
Now Monsanto is suing another Saskatchewan farmer for allegedly growing Round Up canola without a license. Kelly Ryczek is accused of obtaining Round Up seeds from a source other than Monsanto. Ryczek allegedly planted some of these seeds and sold others on. Monsanto is insisting Ryczek surrenders the seeds, and is demanding a penalty for breach of their patent rights [7].
The Schmeiser case, because it took place in Canada, has prompted concerns that it will serve as a legal precedent in other commonwealth nations. Professor Brad Sherman of the Centre for Intellectual Property in Agriculture, Australia National University, has pointed out that Schmeiser was prosecuted for infringement of exclusive rights awarded to Monsanto. Monsanto won the case based solely on the fact its GM canola was found growing on Schmeiser’s land, regardless of the fact Schmeiser was a victim of contamination.
Sherman thinks farmers are being pressured into buying Monsanto seeds, because, if not, they run the risk of being prosecuted like Schmeiser. Sherman concludes that the patent holder "has no incentive to take responsibility for controlling its technology". On the contrary the farmers are being made responsible for controlling the patented genes [8].
It gets worse. The selling point behind Roundup Ready is that it is a glyphosphate-resistant strain. Spray on the herbicide and you’re left with nothing but Monsanto crops. However, after two years application, glyphosphate-resistant volunteer corn plants begin to flourish. This has led to the most bizarre Monsanto patent yet awarded. US patent # 6,239,072 covers the practice of mixing glyphosphate with other herbicides, and any premixture thereof. This patent has been awarded despite the fact that mixing herbicides is what any sensible, thinking farmer would naturally do, and has been doing, in the event of resistant plants emerging. The patent also serves as a "de facto" admission of the GM "superweed" problem and that Roundup technology lacks efficacy and predictability.
It doesn’t end there. The scope of Monsanto’s ‘invention’ extends to using the mixtures on any straggler volunteer crops that may develop glyphosphate resistance by accident or design, at any time in the future. Using such broad patents, Monsanto assures that nothing escapes its clutches. By forcing farmers to use faulty technology and then patenting further methods to rectify those faults Monsanto is placing the farming community in a quicksand of ongoing legal obligations [9].
Fortunately, Monsanto doesn’t always get its way. Monsanto was subject to a US department of Justice Antitrust Division enquiry back in 1998 regarding their acquisition of DeKalb Genetics Corporation. Similarly, when Monsanto attempted to acquire Delta & Pine Land Co in 1999 to gain control of that companyís terminator seed technology, the Antitrust Division indicated that it was prepared to sue to prevent the transaction. In a recent speech made before the Organization for Competitive Markets in Nashville, Douglas Ross, Special Counsel for Agriculture at the Antitrust division outlined the basis on which prosecution for antitrust regulations can be brought. Amongst others, he cited conspiracies to deny market access or otherwise suppress competition, the use of predatory and/or exclusionary conduct to hold on to a monopoly in the market and mergers that are likely to lessen competition in the market. Monsanto is guilty on all three counts [10].
1. "Monsanto’s "Submarine Patent" Torpedoes Ag Biotech", RAFI News Release,
April 26,2001 www.rafi.org
2. "Owning the future: The green-back revolution" by Seth Shulman,
Techreview.com, Sept 2001
http://techreview.com/magazine/sep01/shulman.asp
3. "Monsanto makes empty promises to change their practice" by Charles
Abbott, Nov 27, 2001 www.purefood.org/monsanto/promises.cfm
4. Monsanto database registration agreement, Sept, 2001, rice ?research.org
5. "Common farmers forced to buy GM seeds?" Norfolk Genetic Information
Network, Aug 27,2001 www.ngin.org.uk
6. ""Monsanto Representatives" Intimidate Farmers with the use of Private
Investigators", Monsanto vs Schmeiser website, Sept 15, 2001
7. "Monsanto ready to wage war: Schmeiser case opens door for Monsanto
to pursue other patent breaches" by Murray Lyons, The StarPheonix, Canada,
July 19, 2001
8. As [5] above
9. "Monsanto sees opportunity in glyphosphate resistant volunteer weeds"
by David Dechant, Aug 3, 2001 www.cropchoice.com
10. Speech made by Douglas Ross, Department of Justice Antitrust
Division, July 20, 2001 www.usdoj.gov/atr/public/speeches/8681.html
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