2011 21.3 Unlawful Patents? OSGATA, et al. v. Monsanto
The recent surge in genetically modified (GM) crop use, spearheaded by research and big business agriculture, chemical and seed companies, has lead to a roil of political controversy with strong beliefs on both sides of the fence. Proponents declare GM as the best means to feed and fuel the rising human population, while critics say these crops are responsible for the development of superweeds, monopolization of seed and chemical companies, and elevated use of chemical applications (argued to be toxic both to the environment and to people). On March 29th, it was reported that the Public Patent Foundation is suing the Monsanto Seed and Chemical Company on behalf of over sixty farms and farming organizations, comprising of over 270,000 individuals (Laskawy 2011), with the complaint that the patents Monsanto holds on GM seed are invalid (Laskawy 2011; Gilliam 2011). The Organic Seed Growers & Trade Association (OSGATA), et al. v. Monsanto lawsuit is a preemptive measure on the part of the farmers represented to avert legal prosecution by Monsanto in the event that some of the patented genetic products end up on their land—litigation Monsanto is becoming well known for undertaking (Goland 2011; Laskawy 2011; Ravicher 2011). OSGATA argues that the patents Monsanto holds for development of GM seed varieties indirectly lead to harmful effects on environmental and human health, and are therefore unlawful and illegitimate. This article will explore the issues surrounding the use of the Monsanto Company’s GM seed crops to better understand OSGATA lawsuit’s claims that Monsanto’s patents are unlawful.
THE ARENA
Many non-GM farmers are concerned about GM contamination on their crops for a variety of reasons, from ethical concerns to certification endangerment. The lawsuit aims to gain back some ground for organic and conventional farms by establishing that Monsanto is not within constitutional rights in patenting their seed products, that these patents are “injurious to the wellbeing, good policy, or sound morals of society,” threaten to “poison people,” and are therefore invalid (USDC 2011). As of now the detection of Monsanto’s patented genetics on the land of someone who is not a contracted customer of Monsanto has been treated, not as contamination by Monsanto of the farm where it was found, but as that farm trespassing on intellectual property owned by Monsanto. Lawsuits have been filed against these farmers to the detriment of their farms and livelihoods (Garcia 2004). There are reportedly 144 suits filed between 1997 and April 2010 by Monsanto against farmers for the improper use of their products, nine of which went to full trial (Monsanto 2011). All nine of these trials were found in favor of the company and not the farms and all 144 suits were filed on the basis that farmers were unlawfully using patented material (Monsanto 2011). From OSGATA’s standpoint, without patents Monsanto would no longer be able to prosecute farm businesses that had their land tainted by GM seed, and may be forced to pay royalties to organic farms that lose certification due to contamination of their crops. The reasoning used to support these statements includes the three foremost arguments against GM crop use: Planting of GM crops leads to higher chemical usage and superweeds, that GM crops can cross pollinate with weeds and native plant species, and that continued support of the GM industry is causing consolidation of the seed industry that is harmful to biodiversity and organic/heritage
seed availability.
ARGUMENTS ABOUT PATENT ILLEGITIMACY
ONE: GM crops cause higher usage of toxic chemical herbicides, causing environmental degradation, loss of human health, and often result in superweeds — weeds that develop resistances to chemical applications due to natural selective processes and over exposure to herbicide. According to the lawsuit, “the existence of Monsanto’s transgenic seed is directly responsible for the increased use of glyphosate, and in particular Monsanto’s brand of glyphosate, Roundup, which studies have shown is harmful to human health (USDC 2011).” The toxicity of glyphosate is becoming better understood as independent studies are carried out. Recent reports show that contact with Roundup causes damage to enzymes important in mammalian pregnancy, is a potential endocrine disruptor (Richard 2005), and is highly toxic to amphibians (Relyea 2005).
TWO: Increasing seed industry consolidation restricts healthy competition and invention. Giant businesses like Monsanto have the money to funnel towards development and research at rates totally unfeasible for smaller businesses. Currently the company spends 2.6 million dollars a day on research (Monsanto 2011). While alterations to the genetic makeup of crops can help counter many of the problems facing the world’s food production such as plant response to drought and heat, improvements in nutrient uptake and rooting ability, better nitrogen fixation, and more efficient use of carbon dioxide (Fresco 2001), the trait most sought after is herbicide tolerance (HT) (Fresco 2001 ; Ching 2003). Over seventy percent of the 550 million acres of GM cropland in 2003 was planted in HT crops (Ching 2003), and this percentage seems to remain a constant as GM production increases from year to year (Benbrook 2009).
Farmers who are grasping at any way to raise higher capitol for their businesses continue to fall for the weedless vision, using more and more GM seeds in their productions, and adding to the monopolization of the food industry by the very few giant corporations who own patents on GM seeds. As an example of the level of the monopoly: 95% of all sugar beets, which make up 44% of sugar production in the US are now genetically modified (Philpott 2010), and many other crops share similarly staggering statistics. Organic Seed Alliance’s recently published State of Organic Seed report points to consolidation of the seed industry and lack of private investment as the main culprits for the dwindling availability of organic seed (Dillon 2011). Another recent publication, authored by Phillip Howard, illustrates the “ownership changes” that have taken place since 1996 – the first year GM crops became publicly available. Howard shows how numerous seed companies have been bought over “hundreds of transactions,” some with billion dollar price tags, by the top six pharmaceutical/chemical corporations, leaving very little seed production to small independent businesses (Howard 2009).
THREE: GM crops readily cross-pollinate with other crops, weeds, and native species, contaminating them with GM traits, which can harm organic businesses and lead to the development of weeds with herbicide tolerance. Farmers in the suit against Monsanto hope to avoid genetic contamination via cross-pollination or by the seed itself entering their property, and to shift responsibility of contamination events to the manufacturing company rather than the effected farmer. According to the lawsuit, “Nontransgenic crops are vulnerable to contamination by transgenic seed at almost every step of the production process: before seed is purchased; through seed drift or scatter; through crosspollination; through commingling via tainted equipment during harvest or postharvest activities; during processing; during transportation; and during storage (USDC 2011).” It is easy to see how the seeds themselves can scatter and be disseminated by falling off of transport trucks or being stuck in machinery used to spread or harvest seed, and this method of contamination has been recorded (Garcia 2004) but how likely is it that biological processes of the plants themselves will spread genetics owned by Monsanto? It turns out, quite likely.
For a while it was doubted whether or not GM traits could enter the natural environment. Science now shows that it is entirely possible for genes planted by humans to be passed to subsequent generations of plants in natural ways from then on. Generally, weeds cause the pressure they do in agricultural systems because of their ability to evolve rapidly, reproduce strongly, and survive the disturbances farmers have used against them. When weedy species in fencerows and culverts are sprayed with herbicide intermittently, (little or infrequent enough some of them sprayed and survive), they can be genetically altered naturally, develop resistance to the herbicide, and can pass this evolved trait on to following generations (Londo 2010 ; Wilkenson 2011).
With upwards of 550 million acres currently planted in GM crops worldwide, and this number rapidly rising year to year (Ching 2003), there are becoming areas of the United States where GM crops prevail so much that cross pollination with other species may soon be unavoidable. When a biology grad-student offhandedly tested wild-type canola flowers in a ditch in North Dakota and found them to be carrying transgenic genes developed to give herbicide resistance in canola, she and a group of colleagues decided to investigate (UARK 2010). The group tested hundreds of roadside ditches along 3,000 miles and found that 46% of the sites contained weedy species of canola, and 83% of these weeds contained transgenetic material (UARK 2010). Some of the tested canola was resistant to Monsanto’s herbicide glyphosate and some was resistant to a similar chemical manufactured by the Bayer company. Of even more concern is that some of the plants tested had picked up genetics for resistance to both herbicides (Gilbert 2010). It is entirely possible that cross-pollination caused these weedy canola species to develop herbicide resistance, though overspray is also a potential culprit.
THE FUTURE OF PATENTING GENETICS
There appears to be plenty of evidence that supports the claims made by OSGATA in their lawsuit, and it will be up to the courts to decide whether or not it proves GM seed production directly causes harm to human health, economic activity, or the environment. If it is found that the harm has a direct link to the GM seed technology being used in the way Monsanto is, for use with herbicides and for profit, then the era of patenting genetic material may be close to an end.
Response and Follow Up
Monsanto has publicly replied to the lawsuit saying that their products do not cause healthful or environmental harm and that they have not ever persecuted a farmer for accidental use of their seed, but only for the intentional saving and replanting of their patented products.
The full lawsuit is available here: http://www.pubpat.org/assets/files/seed/OSGATA-v-Monsanto-Complaint.pdf
Full references for this article are available on our website:
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