Further reflections on EPO's May 3 decision to revoke Monsanto's species-wide soybean patent
ETC Group has been receiving lots of emails and phone calls in the past few days about the defeat of Monsanto's soybean patent one week ago. While most have been congratulatory a few have asked whether this wasn't in fact a hollow victory since the patent challenge was won on technical merits rather than fundamental principles of morality. Will it even affect Monsanto's patent portfolio? One US activist asked:
"What did Monsanto get? Thirteen years of patent protection and nothing that would threaten their other patents... In return for spending a minuscule proportion of their profits on legal fees, Monsanto got to tie up the legal resources of its opponents and bleed them dry for thirteen years. That's not a defeat for Monsanto. That's a victory for Monsanto."
It's a fair point and one that we partly agree with. ETC Group has been quite clear from the get-go: The real lesson from this 13-year legal battle is that the patent system is broken and hopelessly incompetent. It took 9 years for the EPO to schedule its first opposition hearing on the patent, it took 4 more years for us to win on appeal.
Is it merely a pyrrhic victory? We think it's quite significant that one of Monsanto's biggest, baddest and broadest patents has been shot down. After all, we're talking about the world's largest seed and agbiotech corporation. We undertook the legal challenge in 1994 because the patent was unprecedented in scope. Not just a claim to all genetically modified soybeans, not just GM soybeans engineered with a gene gun, but all transgenic soybeans regardless of how they were engineered, no matter what genes were employed. The patent's claims also extended beyond soybeans to other plants - but that claim was knocked down by EPO in 2003.
ETC Group spent what seems to us like a small fortune fighting this patent (about $40,000). We usually don't engage in legal battles - it's not our style and not the way we like to use our limited resources. But we couldn't allow the patent to stand, the precedent was simply too dangerous. Do we think it's a good idea to engage in a long-term legal strategy to slap down bad patents, one-by-one? Absolutely not.
Yes, it's outrageous that it took 13 years to defeat this patent, which was due to expire in little over a year - but the ruling will have a very real effect on Monsanto's patent portfolio and those of other Gene Giants. The EPO ruling establishes new case law that will affect any company's similarly broad claims on plants and seeds.
The patent was overturned on technical grounds, but ETC Group has strived to use this case (and many others) as a vehicle to raise awareness and action relating to biopiracy and the immorality of the patent system. At the hearing in Munich last week, a representative from the EPO admitted to me that the Monsanto patent had become a political embarrassment for the patent body - they were anxious to see the controversy go away.
Over the years, we've had some important successes knocking down egregious patents - and they were fought largely on political turf - not on technical grounds. Here are just a few examples of unjust, predatory and immoral patent claims that were defeated by ETC Group and many other peoples' organizations and civil society organizations worldwide:
Biotech company Agracetus (a subsidiary of W.R. Grace, acquired by Monsanto in 1996) won its first species-wide patent on biotech cotton. Reacting to a scathing indictment of the patent we released in our February 1994 Communique, the Indian government summarily revoked W.R. Grace's "species patent" on transgenic cotton "because of its far-reaching implications for India's cotton economy."
Remember the outrageous patents and/or patent applications on human cell lines of indigenous peoples? After a lengthy global campaign led by ETC Group (then as RAFI), the US National Institutes of Health "disclaimed" its notorious US patent on the human cell line of a Hagahai indigenous person from Papua New Guinea (#5,397,696) in December 1996. NIH's forfeit of the patent was directly provoked by severe criticism it was receiving from foreign governments, indigenous peoples organizations, and CSOs.
In 1998, following a successful campaign by farmers and indigenous peoples in Bolivia, Colorado State University professors were forced to drop their patent on quinoa.
In 2005, ETC Group blasted Syngenta for its attempt to win multi-genome monopolies - not just control of rice genome sequences but those of 40 plant species. A short time later, Syngenta agreed in writing that it would not pursue its multi-genome patents - although we're still monitoring them.
To conclude, the victory in Munich last week was by no means a fatal blow to Monsanto - not even close. But taken together with lots of other acts of resistance - big and small - all over the globe, it's a successful blow against runaway corporate monopoly and a predatory patent system. And it's not every day that you can say you beat Monsanto!