Palaces For The People
Tuesday, December 09, 2003
Date: Fri, 5 Dec 2003 17:57:14 -0600
Reply-To: Douglas Hinds
Sender: Sustainable Agriculture Network Discussion Group
From: Douglas Hinds
Organization: CeDeCoR, A. C.
Subject: Re: Patent Invalidity --- Part Two
Comments: To: "SERA - Sustainable,
Socially and Ecologically Responsible Agriculture"
Content-Type: text/plain; charset=us-ascii
Hello Lion and other SERA and sanet members following this thread,
Thursday, December 4, 2003 Lion discussed the validity of Monsanto's and other transgenic crop patents.
I have reformatted but left intact much of Lion's post before adding my comments below. Lion has made an important contribution which deserves consideration, a contribution that no one on either list has valid grounds for criticizing his having made, IMO. I've interpreted the legal issue from a related but somewhat different perspective, but this is an issue deserving of further study and possibly, legal action.
LK> The validity of US Patents needs to be understood within the LK> diverse elements of the US legal system.
LK> The congress makes laws, not the Patent Office (hereafter LK> abbreviated USPTO).
LK> The USPTO interprets patent applications and grants patents, LK> based on patent law.
LK> Courts interpret patent validity by various measures, including LK> current USPTO patent grant status. Courts may invalidate LK> patents, and the USPTO may invalidate patents.
LK> UTILITY patents are required to meet certain tests to justify LK> compliance with congress' enacting patent laws:
LK> an invention must be (1) NEW, (2) NOVEL, (3) NON-OBVIOUS TO LK> PRACTIONERS OF THE ART.
LK> A failure of any one element invaldates the patent.
LK> Petitioning the USPTO is the process to use to invalidate a LK> patent. Published statements from the inventor or assignee may LK> be introduced to demonstrate invalidity of a patent. If a patent LK> inventor or assignee declares that the invention is NOT NEW, NOT LK> NOVEL, IS INCREMENTAL OF THE STATE OF THE ART, a grant of patent LK> may be invalidated.
LK> Have there not been published statements made to the United LK> States government that various GMOs are not unique, not new, LK> merely incremental of the plant breeder's arts, and therefore no LK> new safety tests were required?
LK> Have there not been findings published by agencies of the United LK> States government (USDA, FDA) that GMOs are not substantially LK> new, not substantially novel, and therefore would be judged safe LK> because of the basic essential NON-DIFFERENCE between the pre- LK> and post-GMO condition?
LK> But even IF the patent is validated, UTILITY patents are LK> fundamentally different from Protected Variety Plant patents.
LK> A UTILITY PATENT PROTECTS THE INVENTION AND THE EXACT SPECIFIED LK> METHOD OF PRODUCING THE INVENTION. It cannot protect seeds and LK> sexual reproduction, as these are "prior art", NOT NEW, NOT LK> NOVEL.
LK> One cannot patent "seeding" because Mother Nature invented it, LK> not man, and by law prior art is not patentable. Only the NOVEL, LK> NEW invention part can be patented, not everything which merely LK> touchs that invention.
LK> The CLAIMS specifically describe what is covered by the patent, LK> and claims can be invalidated if prior art can be demonstrated LK> by proving that aspect of the invention existed in public LK> knowledge anywhere on earth prior to the date of invention LK> declaration.
LK> So, a circumstance exists where it has been in nobodies interest LK> to invalidate any biotech patents. Nobody challenged the LK> fundamental basis of the patent claims -- they just stood in awe LK> of the brazeness of the claimants.
LK> Percy Schmeiser argues in a CANADIAN COURT, and the court sees a LK> currently valid US patent and so rules.
Canada's Supreme Court has yet to rule on this (I believe) but has accepted the case.
LK> Smeiser's case scares other farmers into capitulation, and US LK> courts "notice" a decision (brought to their attention by LK> biotech lawyers) in Canada upholding a valid us patent.
LK> The proper forum was the USPTO, requiring them to invalidate the LK> patent based on their rules, which are different rules than the LK> courts follow.
LK> The courts look to see if the USPTO is validating a patent, then LK> proceeds with presumption on the side of the patentee. The USPTO LK> can invalidate at any time new evidence of prior art or LK> non-novelty is brought to their legal notice.
LK> To RECAP:
http://www4.law.cornell.edu/uscode/35/161.html TITLE 35 > PART II > CHAPTER 15 > Sec. 161. Next
LK> Sec. 161. - Patents for plants
LK> Whoever invents or discovers and asexually reproduces any LK> distinct and new variety of plant, including cultivated sports, LK> mutants, hybrids, and newly found seedlings, other than a tuber LK> propagated plant or a plant found in an uncultivated state, may LK> obtain a patent therefor, subject to the conditions and LK> requirements of this title.
LK> The provisions of this title relating to patents for inventions LK> shall apply to patents for plants, except as otherwise provided
LK> [NOTE: ASEXUAL REPRODUCTION!!!]
A wide interpretation of this is cited by Lion below, however.
LK> http://www.uspto.gov/web/offices/pac/plant/ LK> ...What is a plant patent?
LK> A plant patent is granted by the Government to an inventor (or LK> the inventor's hiers or assigns) who has invented or discovered LK> and asexually reproduced a distinct and new variety of plant, LK> other than a tuber propagated plant or a plant found in an LK> uncultivated state.
LK> The grant, which lasts for 20 years from the date of filing the LK> application, protects the inventor's right to exclude others LK> from asexually reproducing, selling, or using the plant so LK> reproduced. This protection is limited to a plant in its LK> ordinary meaning:
LK> * A living plant organism which expresses a set of LK> characteristics determined by its single, genetic makeup or LK> genotype, WHICH CAN BE DUPLICATED THROUGH ASEXUAL REPRODUCTION, LK> BUT WHICH CAN NOT OTHERWISE BE "MADE" OR "MANUFACTURED."
In this case, although the original GM variety was in fact created asexually via using a virus or "gene gun" on a seed cell or plant tissue (plants themselves have not responded well to gene insertion), once the gene has been incorporated into the now transgenic plant's genome (albeit in a hit-and-miss, poorly controlled, variable and unstable manner), SUCCEEDING GENERATIONS ARE NO LONGER ASEXUALLY PROPAGATED.
This may explain the need for the famous CONTRACT that's used: Seed can't be saved for future propagation. However, this can not legitimately apply to someone not signing said contract.
LK> * Sports, mutants, hybrids, and transformed plants are LK> comprehended; sports or mutants may be spontaneous or induced. LK> Hybrids may be natural, from a planned breeding program, or LK> somatic in source. While natural plant mutants might have LK> naturally occurred, they must have been discovered in a LK> cultivated area....
LK> Monsanto, a criminal corporation, has deceived the public, LK> deceived regulators, deceived courts, and deceived the USPTO LK> about the patent validity of its seed products.
LK> --- The public has been deceived that Monsanto held, by right, a LK> valid patent on Plants, but Monsanto markets no plants asexually LK> reproduced under plant patents.
Their original plant was asexually reproduced in the sense that the process used to insert the gene in the seed or tissue cell was certainly not a sexual reproductive process.
LK> -- Monsanto has UTILITY patents issued based on Novelty, Newness, LK> and Non-Obviousness, NOT PLANT VARIETY PATENTS.
For the process used to make them.
LK> -- Regulators were deceived that PATENTABLE, ipso facto NOVEL LK> ORGANISMS were incremental developments of insufficient newness LK> as to be virtually the same as UNPATENTABLE organisms.
LK> --- The courts have been deceived that possession of documents LK> issued on the basis of UTILITY patents were protected as LK> asexually reproduced plant patents; that because nobody had LK> interest to dispute the USPTO validity meant upholding USPTO LK> patent grants as a matter of default public policy.
LK> --- The USPTO was deceived that incremental development, LK> non-novelty, non-newness was being declared to regulators by LK> patentholder in defiance of documents filed under penalty of LK> perjury with USPTO.
LK> [This situation] requires men and women of conscience and lovers LK> of justice to respond to ongoing injustices of pending cases in LK> various court systems to document these facts, assemble the LK> documentation into a coherent whole, publish the location of the LK> documentation, disburse copies of concise summaries to LK> appropriate parties with links to the documentation. Because of LK> evidences of corporate corruption of persons and agencies in the LK> United States of America, mirror sites offshore should be LK> expeditiously established.
LK> when Monsanto acquired Agracatus it also acquired a patent which LK> covers all soybean plants genetically engineered using biolistics.
What's biolistics? It sounds like it's referring to the use of a "gene gun".
LK> As with other companies Monsanto is pushing the boundaries LK> between discovery and invention as well as seeking to gain the LK> broadest possible patents, despite this prior to Monsanto's LK> acquisition of Agracatus it challenged the validity of the broad LK> scope of the soybean patent.
Give them a fraction of an inchs' entrance and they'll take all they can get. The only principle involved is personal / corporate gain.
I see my interpretation of biolistics was right on target:
LK> United States Patent 5,015,580 LK> Christou , et al. May 14, 1991 LK> Particle-mediated transformation of soybean plants and lines
LK> A method and apparatus is disclosed for the genetic LK> transformation of soybean plants and plant lines by particle LK> mediated transformation. FOREIGN GENES ARE INTRODUCED into LK> regenerable soybean tissues BY coating on CARRIER PARTICLES LK> WHICH ARE PHYSICALLY ACCELERATED INTO PLANT TISSUES. The treated LK> plant tissues are then recovered and regenerated into whole LK> sexually mature plants. The progeny are recovered from seed set LK> by these plants and a portion of these progeny will contain in LK> their genome the foreign gene. THE PROCEDURE MAY BE USED TO LK> CREATE NOVEL GENETICALLY ENGINEERED SOYBEAN PLANTS AND LINES.
LK> Assignee: Agracetus (Middleton, WI) LK> Appl. No.: 193357 LK> Filed: May 12, 1988
LK> -- Regulators were deceived that PATENTABLE, ipso facto NOVEL, LK> ORGANISMS were incremental developments of insufficient newness LK> as to be virtually the same as UNPATENTABLE organisms.
They have patented a process used for gene insertion.
The contradiction here is that GM crops are "new and novel" for the purpose of the patent and "substantially equivalent" for the purpose of avoiding comprehensive, long term tests.
In any case, the significant factor is not the contradiction - which can be put to one side with a bit of legalese by an equally unscrupulous lawyer and judge. The significant factor is power, and of course who wields it.
What we observe is part of developmental model designed to foster personal gain for a few while castrating and exploiting the rest. In the context of that model, the law and politics are tools like anything else. In philosophical terms, the failure of this model rests on it's failure to lead to anything intrinsically good except trade, consumption and more trade, since "good" is defined as whatever gives the model's designers and adherents more power over others, including a set of "rules" that provide them with a clear path ("the right") to exploit everyone else.
This is no more than playing with your mind, and is intended to instill a general sense of acceptance by virtue of it's inevitability, for their doing what would otherwise be unacceptable.
Don't swallow that pill.
They may own the ballpark, but there are better games to be played and better folks to play them with.
And that friends, is what we're here to construct. SERA is about looking for a better way. While we're doing that, we can continue to analyze these issues, which have to be dealt with in any case.
The questionable legal issue here is that having been granted a patent for a new and novel process used to insert a gene in what becomes sexually reproducible seed in succeeding generations, Monsanto and others have shifted their emphasis toward assuming rights, not in relation to the patented process itself but over the RESULTS of that process, in spite of the obvious fact that the letter of the law -as things now stand- does NOT grant them that right.
Additionally, they are assuming rights for varieties they hold no patent for, by virtue of an inevitable and natural contamination that occurred via processes that are neither new nor novel and in fact, form a traditional part of the current art of farming.
(See E. Ann Clark's excellent and emphatic statement on Schmeisser's behalf in this regard on the www.percyschmeisser.com website): http://www.percyschmeiser.com/crime.htm
IOW, while a hybrid is a hybrid in great part by virtue of it's inability to reproduce consistently under Open Pollenization and therefore, must be reproduced by continually re-crossing the sources (which by no means constitutes asexual reproduction but IS mentioned specifically -although not fully defined- in the classification) , the significant (patent and "value added" bearing) genetic characteristics of GM crops do not degenerate in the same way.
While they may be (and are in fact) unstable, any crossing that occurs is nevertheless likely to contain the GM gene, which is no longer contained in a plant developed under a patented process and in fact, is no longer contained in a plant that has the same characteristics as the one derived from the seed that was sold.
Additionally, it was created via sexual reproduction of a plant containing what became a stray and potentially unwanted gene.
In any case, it was not the variety that was patented but rather, the process used to insert a single or multiple traits.
The problem here is that there is nothing to prevent government from extending the patent's coverage in order to protect the patent holder's "intellectual property rights" and therefore, his, her or it's right to impose those rights to the detriment of the rest of the world, if that's their intention. (Let's see if that happens).
LK> "that the corporation be dissolved in all jurisdictions where it LK> conducts business."
That's easily enough done by not purchasing their products. Meanwhile, they'll still continue to contaminate fields as well as menace and litigate farmers.
Frankly, I don't think there's an army big and well equipped enough to make this stick over the major part of the planet. There is not doubt about it (and I have said this before): The USA is painting itself into a corner by banking on these kinds of tactics, which are unsustainable biologically, ethically, morally, socially, politically and economically.
If US & Canadian courts and the corporate goons in government are fronting for these kinds of abuses -abuses that will not be tolerated by the rest of the world- coupled with the failure of GM crops to perform as promised and in fact, consistently under-perform standard varieties, the only questions are how much damage is going to occur before this becomes apparent and what can we do to accelerate and implant public awareness.
One consideration is containing the damage, educating and litigating in the USA while preventing or impeding a repetition of the process elsewhere, For instance: During the WTO's Cancun event, GM lollipops was given out to kids and GM food was distributed within a nearby poor community.
Under Mexico's present Federal Penal Code this is a criminal offense. If those who perpetrated this crime can be identified, charges can be filed and extradition proceedings initiated. The patent holders aren't the only ones that can fire warning shots across the bow and make an example of the "offenders" they themselves create.
What's happening is happening for two simple reasons:
Those responsible for protecting the public interest are incompetent, have no foresight or could care less about what we and the rest of world want and deserve. They are riding the corporate biotechnology horse and will ride roughshod over anyone and anything that gets it their way if they're able.
GW Bush was at a total loss in the presidency before 9/11, intent only on accessing Alaskan oil, and cutting both corporate taxes and social programs.
Now I am getting faxes via my email linked Chicago number offering stocks emitted by a company that wants to feed biotech interferon to America's cows to keep them free of bioterrorism and another that sterilizes produce trucks for the same reason.
Meanwhile, the budget goes to GWB cronies Halliburton and Bechtol for "rebuilding" Iraq, as Iraqis pick off foreign troops one by one and Arnold decides to keep people he doesn't want there from driving legally, while eating the food they harvest.
Did anyone know that the USA would slide downhill or that things would get as bad as they are as fast as they have ? Did anyone know that Letting George Do It would lead to where it has?
I seriously doubt that the USA can survive four more years of this insanity. Let's hope it won't have to.