MANNAN, Adam
Intellectual Property (LW 556)
Dissertation
Convenor: Mr Alan Story
23rd February 2003
Intellectual Property As A Tool Of
Social Repression
This paper, focussing on the effect of plant monopoly rights in agriculture, shows that the regime of
intellectual property protection in this sphere, despite its vaunted aspirations, is detrimental to society.
The regime is analysed using a rationalist approach complimented by empirical examples.
It is found that by permitting intellectual property protection for agricultural plants that the cost of
these plants is increased, and biodiversity diminished resulting in further social dislocation between
the lesser developed countries and the most developed countries. Moreover, it is found that in the most
industrialised nations that plant monopoly rights lead to control of the food chain by the rights holders.
The impact of monopoly rights in agriculture has grave consequences on not only those countries of
low Gross National Product, but also within the societies with high Gross National Product.
Furthermore, it is shown that the presence of plant monopoly rights over agricultural plants shifts the
focus of research and development from the legitimate demands of societies to methods by which
monopolists can force their products onto the market or gain unconscionable profit.
This paper concludes that permitting plant monopoly rights does not benefit society. It rather
transforms social and environmental resources into monopolist property thereby hindering societal
access to such resources. Avarice and greed are poor guides to humanity.
The author has asserted his moral rights in accordance with the Copyright Designs and Patents Act 1988.
INTELLECTUAL PROPERTY RIGHTS AS A TOOL OF SOCIAL REPRESSION
1. Introduction
In 2001 the Canadian Court of Appeal1 ruled that a canola farmer, Schmeiser, was liable for
substantial damages for patent infringement. It was found that his crop, cross pollinated
through natural processes,2 expressed a gene, the property of Monsanto, conveying resistance
to glycophosphate herbicides. Despite a lack of evidence on Monsanto’s part, that Schmeiser
had exploited the gene by using glycophosphate herbicides on his crop, patent infringement
was found by the mere incorporation of the gene into Schmeiser’s crop.
According to Rousseau civilization, most notably the introduction of property, is responsible
for introducing evil into the world. Hume shared3 Rousseau’s view by holding that the
human nature is a vessel of strife; a conflict of humanity on the one hand and ‘avarice and
greed’ on the other.4
However, avarice and greed are not the only detrimental results of property. As Cohen points
out,
“ …we must not overlook the actual fact that dominium over things is also imperium
over our fellow human beings.”5
Why then is property such a fundamental part of the western conception of society?
Justification for the existence of property is argued on the basis of four theories.
The first, known as the ‘possession theory,’ is merely a statement of empirical logic that a res
can only be possessed by an individual. For example a grain of rice6 may be consumed by
1
Monsanto Canada Inc v Schmeiser [2001] 12 C.P.R. (4th) 204 (Fed Ct (Can))
Insect and wind pollination from the gene rich crops of neighbouring farmers.
3
Both Russeau and Hume’s writings indicate a link between ethics and feelings. Kant rejects their
position by advocating objective ‘pure moral law,’ which is independent of all inclinations or feelings.
The difficulty with Kant’s proposition is the question of identifying the ‘pure moral law.’ Kant
contends that only by rationality devoid of all sentiment and feeling can the ‘pure moral law’ be found.
The difficulty I see with the Kantian perspective is proving rationality can be pure. After all, how were
the first principles of rationalism derived?
4
Hume, Enquiries concerning human understanding and concerning the principles of morals, (Reprinted) [Clarendon Press, 3rd Ed., 2002, Oxford]
5
Cohan, ‘Property and Sovereignty,’
2
only one person; whilst a pen7 can only be used by one person at a time. This theory, whilst
coherent when applied to tangible objects, becomes absurd when applied to intangible
objects.8 Consider for example a word,9 or a song.10 Either of these can be used by more than
one person concurrently. It is indeed questionable whether the ‘possession theory’ can even
be applied conceptually to res incorporalis. After all, how does one possess11 or occupy an
intangible object?
The second is the reward trope that “wealth is entirely and absolutely mine as a result of my
own unaided effort.”12 It stems from the rationale that labour has to be encouraged and one
way is to convey wealth. As it will be shown not all things produced are ultimately good, nor
is the labour proportionate to the wealth. Furthermore, the notion of granting wealth, as an
incentive to work, through a vehicle of rights is inherently flawed. The award of a right to
one party may forbid or restrict the labour of all others.
The third justification is the ‘economic theory’ whereby it is considered that the successful
economic agent is the one that benefits from the greatest increase in wealth. Effectively the
notional agent is considered as being able to foresee or create demand, thereby being an
efficient director of economic activities. Considering the important role played in the
generation of new forms of property by large multinational lobbyists, the relevance of the
economic theory cannot be disputed.13 However as will be shown the generation of profits by
an economic agent need not be in societies’ interests. Indeed, demand is most effectively
generated by establishing shortage or dependence14 and neither situation is of social benefit.
As will be shown there is a difference between socially desirable productivity and the desire
for individual profits.
The fourth justificatory theorem relates to personal autonomy. It is premised on the belief
that,
6
Tangible fongible object
Tangible infongible object
8
Derived from the Latin word objectum in the late 16th Century, with an attributed meaning of a thing
presented to the mind.
9
Capable of being res incorporalis under Trade Mark provisions.
10
Lyrics capable of being res incorporalis as a literary work under copyright provisions, whilst the
music is capable of protection as a musical work under copyright provisions.
11
Possession requires physical interaction. Intangible objects by definition are unable to be touched.
12
The Labour Theory, per Cohan, ‘Property and Sovereignty,’
13
Lukes, ‘Can the Base be Distinguished from the Superstructure?’ {Miller eds.) The Nature of
Political Theory [Oxford University Press, 1 st Ed., 1983, Oxford]
14
Monopoly.
7
“To be free one must have a sphere of self-assertion in the external world [and that]
one’s private property provides such an opportunity.”15
Despite committing a fallacy of reasoning by mixing two separate systems of logic16 the
theorem poses another difficulty. It will be recalled for a person to hold dominium over
things is for that person to hold imperium over other persons. How can self-assertion, if it
extends to property lead to greater freedom? The response given is egocentric, the greater the
wealth of an individual the greater their freedom. As Ahrens stated,
“It is undoubtedly contrary to the right of personality to have persons dependant on
others on account of material goods.”17
Further errors of reasoning occur when some expounders of increased property rights
unconsciously commingle personality theory and the labour theory;18 resulting in the
conclusion that those of greatest industry enjoy the greatest freedom.19
Thus, only the labour theory, the economic theory and the theory of personal autonomy can
be used to justify res incorporalis. The particular form of res incorporalis that will be
considered are those entities that are by convention collected together under the title
‘intellectual property.’20
A coherent definition of ‘intellectual property’ has and will continue to pose difficulties; a
consequence is that no adequate definition yet exists.21 Simply, intellectual property is a legal
construct whereby a ‘person’22 may ‘own’23 abstract entities and thus be entitled to exclude
Cohen, ‘Property and Sovereignty’
See Hume, Enquiries concerning human understanding and concerning the principles of morals
17
Ahrens, Cours de Droit Naturel, 6th Ed., 1886, p. 108. c.f. Cohen, ‘Property and Sovereignty’
18
Demsetz, “Toward a Theory of Property Rights,” (1967) 57 American Economic Review
Proceedings 347
19
Example of a fallacy of misplaced correctness. The conclusion is also wrong as it has been shown
that unearned increment is the greatest source of wealth. See Davenport, ‘Extent and significance of
Unearned Increment,” Bulletin of the American Economic Association, Series 4, No.2 (1911) c.f.
Cohen, ‘Property and Sovereignty’
20
The unsatisfactory convention usually adopted is that ‘Intellectual Property’ refers to that genus of
entities as provided for under WIPO and the TRIPS agreement.
21
For example, a definition that IP is a chose in action is particularly unhelpful since the category
‘chose in action’ is defined by its constituent members. In addition, what within such a definition
distinguishes intellectual property from a debt? Another favoured practice is to provide a list of
intellectual property’s suggested component parts.
22
Both natural persons and ens legis
23
It is suggested that ownership is in the sense of §903 of the Burgerliches Gesetzbuch: the owner of
an asset exercises an absolute right of property over that thing within the limits imposed by law or the
rights of others, otherwise they are entitled to exclude all other interference. I disagree with this
15
16
others from using real objects incorporating them.24 This is not ownership of the rights25 to
real property, but of the strangely pre-eminent rights to rights over abstract objects. Indeed
supremacy over the physical is the nature of all the rights to rights embound under the title of
‘intellectual property.’26 ‘Intellectual Property’ rights can then be considered as ‘monopolist
rights’27 and hereafter will be referred to as such.
Applying a Hohfeldian analysis28 it is clear that the grant of a right imposes a duty. Since the
right is usually granted to an individual29 the duty is imposed on society. A duty imposes
obligations, thereby reducing the liberty of the group subject to the duty.30
By natural construction of the English language social repression31 can be described as the
action of checking, restraining, keeping down the state of being active of that aggregate of
people living together in a more or less ordered community known as society.32 For example,
the grant of patent rights for the use of a yew extract in cancer therapy33 would impose a
correlative duty on society not to use the yew extract for that purpose without the right
holder’s permission. Some of the monopolist rights34 conveyed can impose severe and
pervasive duties on society.35
Why then does the number and scope of monopolist rights continue to grow?
statement as in German law one cannot, in principle, possess intangible property. A better analogy
would be found in relation to Article 544 of the French Code Civil, as in French law apparently you
can.
24
Emmert, ‘Intellectual property in the Uruguay Round – Negotiating strategies of the Western
industrialised countries,’ Michigan Journal of International Law (1990) at p. 1318
25
A right is always against one or more individuals.
26
Cannot serve as a definition since examples of pre-eminent rights outside the ‘intellectual property’
sphere are too numerous. See for example Attorney General for Hong Kong v Reid [1994] 1 AC 324.
On secondary rights in rem see Pretto, Birks and Pretto (eds), Themes in Comparative law [Oxford
University Press, 1st Ed., 2002, Oxford] p.65-80
27
Demsetz, “Toward a Theory of Property Rights,” (1967) 57 American Economic Review
Proceedings 347
28
Hohfeld, Fundamental Legal Conceptions as Applied to Judicial Reasoning [Yale University Press,
4th Ed., 1966, London] Chapter 1
29
It can be argued that in the case of a ‘negative copyright’ license that the right is potentially
conveyed to the whole world, whilst the duty is on the party accepting the license.
30
“There is an obligation on the neighbour, and in that sense there is a corrolative right on the part of
the owner of the first piece of land.” Per Viscount Haldane LC in Howley Park Coal Co v L. & N. W.
Ry [1913] A.C. 11 at p. 25
31
New Shorter Oxford English Dictionary, 19997, Version 1.0.3, data version 2.10.96s
32
Campbell, Seven Theories of Human Society, Oxford University Press, 1980
33
http://www.cptech.org/ip/health/taxol/
34
Maskus, 'Lessons from Studying the International Economics of Intellectual Property Rights,'
Vanderbilt Law Review [2000] 53, p. 2219
35
Rights over Anti-AIDS cocktails have purported to obligate infected persons to death by withholding
the right holders assent to the drugs use or production. See http://www.cptech.org/ip/health/aids/
Discourse by monopolist rights proponents continually furnishes reassurance that social
benefit is dependant on monopolist rights.36 An example of the argument that humanity can
only be stimulated37 through avarice is found in the sector of plant monopoly rights.38 These
rights will be the focus of the rest of this paper.
Following World War II increasing attention focused on world hunger and by the 1950’s
reports of famine, maladies resulting from malnutrition, and statistics on deaths from
starvation became increasingly available. Growing awareness of world food shortages
coupled together with the astounding developments in biotechnology provided an excellent
context for plant breeder and the infantile biotechnology companies to lobby for monopolist
rights over plants.
Their campaign was simple. It held that world hunger could be solved by creating High
Yielding Varieties of staple crops39 thereby raising agricultural production per acre.40 They
insisted the only way such crops could be created was through substantial investment.41
Investment that could only take place if a return on capital was guaranteed.42 A cure to world
hunger, recognised as a profound affront to human dignity and human rights, quickly won
over the sovereign powers and by 197043 the International Convention for the Protection of
New Varieties of Plants44 provided a fledgling sui generis system for plant monopolist
rights.45
High Yielding Varieties became available during the 1980’s. Requiring the extensive use of
fertilizers and pesticides they quickly reduced the farmers of industrialized nations to
dependence on the fertilizer and pesticide industry, conveniently under the control of the
“…ability to invest huge sums in R&D depends upon strong patent protection…no one would make
such investment without the prospect that their invention would enjoy a limited period of protection…”
Sykes CEO Glaxo Wellcome.
37
For an economic perspective of ‘stimulation’ see Plant, “Economic Theory Concerning Patents for
Inventions,” (1934) 1 Economica 30 at 42-44.
38
May be defined as that species of rights identifiable by reference to patents capable of expression in
plants (plant patents) and the sui generis systems of right creation; ‘new plant varieties’ (PVR) and
‘plant breeders’ rights’ (PBR).
39
Blakeney, ‘Protection of Plant Varieties and Farmer’s Rights,’ European Intellectual Property
Review [2002] 24(1), pp. 9-19
40
Hamilton, 'Who Owns Dinner: Evolving Legal Mechanisms for Ownership of Plant and Genetic
Resources,' Tulsa Law Journal [1993] 28, p. 587
41
Labour theory
42
Economic theory
43
UPOV Convention came into force on the 10th of August 1968 after ratification by the United
Kingdom, the Netherlands and Germany.
44
Adopted on the 2nd of December 1961 in Paris. Hereafter UPOV
45
Plant Breeders’ Rights (PBR)
36
biotechnology industry.46 Whilst these crops performed poorly in the lesser industrialised
nations where there was insufficient wealth to obtain the necessary chemicals, food imports
from the more industrialised nations increased in price and although a little diminished world
hunger continued.
By 1991 through constant lobbying and evidence of increased cereal productivity plant
monopolist rights became established within national legislative frameworks. It was a short
step to strengthen PBRs preventing farmers from replanting protected plant varieties.47 Seed
costs increased dramatically and the disparity between the wealth of the most industrialised
nations and the least industrialised nations grew.
In the following decade plant variety rights were firmly entrenched in international legal
constructs.48 The TRIPS Agreement49 through the auspices of the newly formed World Trade
Organisation50 became the substantial tool for the introduction of plant monopoly rights.51 Its
infamous article 27(3)(b) providing,
“…However, Member States shall provide for the protection of plant varieties either
by patents or by an effective sui generis system or by any combination thereof…”52
The European institutions have finally relented to the demands of the biotechnology industry
for greater incentive, namely legislation that would make patents on life possible. In 1998 the
European Parliament approved the life patents directive,53 the rhetoric of which states that,
"the development of biotechnologies is important to developing countries, both in the
field of health and … combating hunger…”
46
There is a large correspondence between the monopolist right holders of plant varieties and the
respective pesticides and fertilizers optimal for that variety.
47
Greengrass, ‘The 1991 Act of the UPOV Convention,’ European Intellectual Property Review [1991]
13(12), pp. 466-472
48
Cullet, ‘Plant variety protection in Africa: towards compliance with the TRIPS Agreement,’ Journal
of African Law [2001] 45(1), pp. 97-122
49
Agreement on Trade-Related Aspects of Intellectual Property Rights, hereafter TRIPs. Signed 15th
April 1994, Marrakesh, Agreement Establishing the World Trade Organization, Annex 1C, Legal
Instruments, see Results of the Uruguay Round vol. 31, 33 I.L.M. 81 (1994).
50
By 2006 all countries, including the least industrialised nations, seeking membership of the WTO
must have implemented TRIPS. Failure will result in extensive trade sanctions and severe reduction in
financial assistance from the most industrialised nations, all of which are already WTO members.
51
Rives, ‘Mother Nature and the courts: Are sexually reproducing plants and their progeny
patentable under the Utility Patent Act of 1952?’ Cumberland Law Review [2001-2002] p. 187
52
Aricle 27(3)(b) TRIPs
53
Directive 98/44/EC of the European Parliament and of the Council of 6 July 1998 on the legal
protection of biotechnological inventions. http://www.copyrighter.ru/lite/index.html?eu98_44_eng.htm
The EU directive is more extensive than the TRIPs Agreement54 compelling EU member
states to offer patent protection for applications claiming essentially biological processes
capable of expression within animals and plants. At present there are an estimated 815
million hungry people55 and the World’s population is continuing to expand. Estimates
indicate that food output must increase by sixty percent within the next twenty-five years to
maintain the current status of food distribution.56
Sampling indicates that each day approximately 400,000 people die from malnutrition.57
Assessment of the situation in 2000 and again in 2001 placed the decline rate of death at less
than 8 million people per year.58 It is estimated that the global demand for staple foods, e.g.
cereals, will increase by 20 per cent over the next fifteen years and that net staple food
imports by developing countries59 will have to more than double if the gap between
production and demand is to be closed.60 These findings appear irreconcilable with the
International Food Policy Research Institute’s (IFPRI) 1999 study that concluded world food
supply would continue to outpace population growth until 2020.61
Evidently there is a problem. It will be shown that a source of that problem is plant
monopolist rights. That these rights hinder the productivity of societies beset by food
shortages and raise the price of imports from the most industrialised nations. Section II will
therefore focus on International Social Repression.
Furthermore, the absurdity of introducing monopoly rights on self-replicating systems will be
analysed. Section III will therefore consider National Social Repression.
WTO, Council for TRIPs, ‘Review of Article 27.3 (b) Communication from Brazil,’ Doc.IP/C/W/228,
24th November 2000.
55
2002 United Nations Food and Agriculture Organisation (FAO) Data, see http://www.fao.org/ag/
56
Sadly that leaves about 36 million people still dying from hunger, directly or indirectly, every year.
Siegler
57
2002 United Nations Food and Agriculture Organisation (FAO) Data, see http://www.fao.org/ag/
58
FAO, "Global meeting to assess progress on World Food Summit goals", < www.fao.org/news>.
59
I. Serageldin and G. J. Pursley, Promethean Science. Agricultural Biotechnology, the Environment
and the Poor (Washington: CGIAR, 2000), p. 3.
60
P. Pinstrup-Andersen, R. Pandya-Lorch and M. W. Rosegrant, World Food Prospects: Critical Issues
for the Early Twenty First Century (Washington, D.C.: International Food Policy Research Institute,
1999), Chap. 1.
61
Ibid.
54
2. International Social Repression.
As has been indicated there are two vehicles for generating plant monopolist rights. These
are by patents or the sui generis systems.62 The requirements and scope of rights generated
under each will be addressed briefly and the problems identified.
Until the development of modern biotechnological methods plant patents were not available.
It was considered that the breeding of a new variety did not involve an inventive step. Since
in all patent systems an inventive step is fundamental to the notion of an invention, new plant
varieties were considered to be obvious rather than inventive and failed to qualify for
monopolist rights.63
Nevertheless, biotechnological knowledge rapidly advanced to recombinant methods for
producing transgenic plants and the right awarding authorities, taking a more favourable view
of expanding the monopoly right domain, began to consider the results ‘non-obvious.’
A moral quandary ensued resulting in article 53(b) of the European Patent Convention64 that
excludes the award of a patent on,65
“plant and animal varieties and essentially biological processes for the production of
plants and animals.”
Although plant patents were considered ‘contrary to the public order or morality’ and
incapable of being patented, lobbying continued in Brussels.66 The European Commission
under great pressure from biotechnology lobbyists drafted a directive that was rejected by the
62
In countries implementing UPOV 1961 attempts are often made to avoid the double award of plant
monopoly rights under both patent and the sui generis system. The usual technique is to exclude plant
varieties from the award of a patent. Howver note the observance by the Enlarged Board of Appeal in
T1054/96 NOVARTIS/Transgenic plant [1999] E.P.O.R. 123 (EPO).
63
Hamilton, 'Who Owns Dinner: Evolving Legal Mechanisms for Ownership of Plant and Genetic
Resources,' Tulsa Law Journal [1993] 28, p. 587
64
Current EPC members are: Austria, Belgium, Cyprus, Denmark, Finland, France, Germany, Greece,
Ireland, Italy, Liechtenstein, Luxembourg, Monaco, Netherlands, Portugal, Spain, Sweden,
Switzerland, Turkey, and the United Kingdom
65
Chambers, ‘Patent eligibility of biotechnological inventions in the United States, Europe, and Japan:
How much patent policy is public policy,’ George Washington International Law Review [2002] p. 223
66
Seat of European Parliament and Commission, Rue de la Loi 200, 1049 Brussels, Belgium
European Parliament. Undaunted lobbying increased adopting the slogan ‘No patent no
cure,’ and finally the European Parliament approved Directive 98/44/EC.67
Article 4.1 of Directive 98/44/EC provides, 68
“The following shall not be patentable:
(a) plant and animal varieties;
(b) essentially biological processes for the production of plants or animals.”
However Article 4.2 of Directive states,
“Inventions which concern plants or animals shall be patentable if the technical
feasibility of the invention is not confined to a particular plant or animal variety.”
The practical effect of the Article taken as a whole is to permit patents on plants that qualify
as inventions, whilst refusing the award of plant patents for a variety itself. Thus, the patent
application must relate to a characteristic expressed in a plant. It will be noted that plant
patents do not have to involve a new outcome but merely a novel manipulation of plant
genomic material producing a claimed effect in more than one plant variety. For example,
consider the natural process,

A 
B
A modification of the process of arriving from A to B within the plant providing that the
modification itself was novel, involved an inventive step and was capable of industrial
application would result in a patent grant. This can be conceptualised in a number of ways
including,



A 
B or A 
AB 

B
Under this regime it is possible for a person69 to own a plant, or more precisely every plant
with certain characteristics. As would be expected from the application of the static security
theorem70 the characteristics that are the subject of the plant patent are invariably dominant.
67
Directive 98/44/EC of the European Parliament and of the Council of 6 July 1998 on the legal
protection of biotechnological inventions.
68
http://www.copyrighter.ru/lite/index.html?eu98_44_eng.htm
69
Natural person or ens legis.
Dominance in the context of a genetic trait means that during the coding phase dominant traits
will be coded in preference to recessive traits, thus the dominant trait is more likely to
propetuate through successive progeny. This can be illustrated by considering four plants
with three different characteristics.71 Of these characteristics A is a dominant modified gene
whilst B and C are both recessive genes.
As depicted the dominant A gene expresses itself in each subsequent generation. The wealth
of genes present in the initial plants are rapidly supplanted until only the dominant A gene,
the subject of the monopolist right, remains. In practice the result of introducing strongly
dominant genes into plants reduces biodiversity leading to the eradication of many genes.
Since the manipulation of genetic material must have an effect, the application claim, the
number of loci manipulated have to be sufficient to lead to an expression of the claimed trait.
Recessive traits displaced are lost from the environment. Thus, the situation can arise where
fields, the principle source of sustenance for a community, consists only of AA plants. If one
year AA suffers bacterial blight then as a result the community produces no food. Had the
AA not been introduced into the environment the community would have been able to subsist
on one of the eighty other types of the plant that would not have been effected by the blight.
This is one example of the dangers of diminishing biodiversity72 in lesser industrialized
nations.73
70
That property is valueless unless it can be retained
AB and AC have the same characteristic
72
Another problem of agricultural chemical use is that in the least industrialised regions of the world
those plants that plants that the most industrialised nations regard as weed provide food, fodder and
medicine. Hope Shand, "Harvesting Diversity", RAFI, 1997
In Indian 150 different species of plants are used for vegetables, fodder and health care. 124 of these
are classed by agricultural biotechnology companies as ‘weeds.’ “In the Expana region of Veracruz,
Mexico, peasants utilise about 435 wild plant and animal species of which 229 are eaten.” UNDP,
Agroecology: Creating the Synerginism for a Sustainable Agriculture, 1995
73
Blakeney, ‘Protection of Plant Varieties and Farmer’s Rights,’ European Intellectual Property
Review [2002] 24(1), pp. 9-19
71
Consider the situation where there is no blight and the AA plant has become predominant in
the community’s crops. Assume the AA modification leads to greater photosynthesis, but
requires a much greater uptake of magnesium by the plant. The soil unless treated with
chemicals will eventually become too poor to grow the AA modified plants.74 Fertilizers are
too expensive75 and the AA modification has become predominant in all the community’s
crop types for sufficient rotation. The community is likely to suffer a food shortage. This is
an example of how a prima facie beneficial modification can have devastating effect amongst
the communities of lesser industrialised nations.76
Since over 1.3 billion of the world's population have daily incomes lower than $1.00 US,
communities in the poorest regions77 of the world have no security for bad harvests.78 If crops
fail, whether through blight, soil erosion, or other causes these populations die.
Further difficulties derive from Article 102 of the United States Patent Act 1952.79 This
article, defining ‘prior art,’ states,
“...A person shall be entitled to a patent unless:
The invention was known or used by others in this country or patented or described in
a publication in this or a foreign country before the invention thereof by the applicant
for patent...
The invention was patented or described in a trade publication in this or a foreign
country or in public use or on sale in this country more than one year prior to the date
of the application for patent in the United States.”
74
It has been found that Round Up Ready crops, as they require the use of the potent herbicide Round
Up, considerably reduce biodiversity. The consequence is that farmers cannot use cover crops and crop
mixtures for soil conservation leading to accelerated soil erosion. Of course the soil can be adequately
replenished through the purchase of the appropriate fertilizers.
75
In lesser industrialised nations farmers harvest small plots of land and grow little more than they
need to subsist.
76
Blakeney, ‘Intellectual property rights and global food security,’ BIO-Science Law Review
[2000/2001] 4(4), pp. 127-140
77
Gonzalez, ‘Institutionalising inequality: The WTO agreement on agriculture, food security, and
developing countries,’ Columbia Journal of Environmental Law [2002] p. 433
78
Ngugi, ‘Making new wine for old wineskins: Can reform of the international law emancipate the
third world in the age of globalisation?’ U.C. Davis Journal of International Law and Policy [2002]
p.73
79
35 USC 1952
Knowledge or use of the subject of application in a country other than the United States does
not constitute ‘prior art’ for the purposes of United States patent law. 80 This refusal permits
the grant of patents on existing knowledge.81 Hence, the United States can take knowledge82
from other countries, patent it, and then protect this knowledge through the award of
monopolist rights.83
A well-known example is the United States patent for the yellow bean alleged to be the
Mexican Enola bean.84 The International Centre for Tropical Agriculture challenged the
patent producing evidence that the subject of the application was substantially identical to six
bean samples with yellow seeds held within its records and originating from Mexico. In the
light of such evidence it seems irrefutable that the yellow bean, the subject of the application,
was taken from Mexico. Had the United States ratified the Convention on Biodiversity the
genetic material should have been the property of Mexico, the patent however still remains.
The consequence of the scenario is that import to the United States of material bearing the
monopolised characteristics of the yellow bean will infringe the US patent. Thus the patent
holder is able to restrict the import of certain crops or charge a royalty. The question of
whether the patent holder exerts any rights over a product derived from a plant that
incorporated a monopolised gene has not yet been adequately resolved.85
Another event that has caused controversy concerns a blight resistant strain of wild rice. In
1996 the Regents of the University of California filed a patent application for "Nucleic acids,
from Oryza sativa, which encode leucine-rich repeat polypeptides and enhance Xanthomonas
resistance in plants". The patent was granted in 1999 by the United States Patent Office.
Identification of the single locus Xa21 gene, responsible for blight resistance, had been
achieved by the International Rice Research Institute86 from gemoplasm they held in their
archives.
80
For example U.S. Patent No. 5,900,240 granted to Cromak Research Inc.
Often referred to as biopiracy.
82
Which is not patented or described in a publication in a foreign jurisdiction
83
Machlup, An Economic Review of the Patent System, 85th Congress, 2nd Session, United States
Senate Subcommittee on Patent, Trademarks and Copyrights, 1958
84
RAFI, "Enola Bean Patent Challenged", News Release, January 5, 2001 www.rafi.org.
85
Bai, ‘Commentary, Protecting Plant Varieties under TRIPS and NAFTA: Should Utility Patents Be
Available for Plants?’ Texas International Law Journal [1997] 32, pp. 139-147
86
IRRI
81
The source of this germoplasm was the wild rice Oryza longistaminata grown in Mali by poor
subsistence farmers.87 The result of the US patent is again that rice incorporating the gene
cannot be imported to the United States without the patent holder’s permission.88
The sui generis systems, by which plant monopoly rights can be obtained, are Plant Breeders
Rights,89 National Breeders Rights90 and Community Plant Variety Rights.91 The monopolist
rights generated are of a similar nature and raise the same issues. Plant Breeders’ Rights as
administered under UPOV92 are by far the most important93 sui generis system of protection
and as a result will be addressed briefly.
Plant variety under UPOV is defined by Article 1(vi) of the International Convention for the
Protection of New Varieties of Plants which states,
"...a plant grouping within a single botanical taxon of the lowest known rank, which
grouping, ... can be defined by the expression of the characteristics resulting from a
given genotype or combination of genotypes, distinguished from any other plant
grouping by the expression of at least one of the said characteristics and considered as
a unit with regard to its suitability for being propagated unchanged."
To be eligible for protection a plant variety must be new,94 distinct,95 uniform96 and stable.97
At present in the US genetic material can be used and made ‘property’ without acknowledgement of
its source. WTO "Review of the Provisions of Article 27.3b) Further Views of the United States of
America", Doc. IP/C/W/209, 20th September 2000. pp. 2-3, 5
88
Blakeney, ‘Protection of Plant Varieties and Farmer’s Rights,’ European Intellectual Property
Review [2002] 24(1), pp. 9-19
89
Plant Breeders' Rights relate to a series of laws under which a person who develops a unique plant
variety can maintain a degree of control over that variety, while allowing other plant breeders to use the
protected material to develop still more advanced varieties.
http://www.swiftt.cornell.edu/ipcourse/modules/pbr/summary.html
90
Article 92(1) of European Council Regulation 2100/94 proscribes protection for the same variety
under both Community Plant Variety Rights and national breeders' rights, however Article 3 of the
Regulation provides that member states can continue to provide national breeders' rights. Thus whilst
protection for a specific variety cannot be duplicated the two systems can run concurrently. This places
the financial burden on the private party should the party elect for protection under the Community
Plant Variety Rights rather than national breeders' rights.
91
Articles 1-35 Council Regulation 2100/94, 1994 Official Journal of the European Communities at
page L227/1. For a commentary see Millett, ‘The Community System of Plant Variety Rights,’
European Law Review (1999) 24, p. 231; van der Kooij, Introduction to the EC Regulation on Plant
Variety Protection [Kluwer Law International, 2nd Ed., 1997, Boston]
92
International Union for the Protection of New Varieties of Plants
93
On the 15th January 2003 52 States were party to the International Convention For the Protection of
New Varieties of Plants. See http://www.upov.int/en/about/members/index.htm (last accessed 5th
February 2003)
94
Article 5(1)(i) UPOV 1991; The variety shall be deemed to be new if, at the date of filing of the
application for a breeder's right, propagating or harvested material of the variety has not been sold or
87
Unlike patents plant variety rights act on the physical propagating material and as such are
specific only to a particular registered variety. This results in a preference by agricultural
biotechnology companies for the broader ambit of patents. Furthermore the patent carries
with it greater repressive power as it imposes greater obligations on society than plant variety
rights.
3. National Social Repression.
Under Article 14 of the UPOV Convention 1991 production or reproduction, conditioning for
the purpose of propagation, offering for sale, selling or marketing, exporting, importing or
stocking for any of these purposes are all forbidden without authorization from the
‘breeder.’98 There are however a number of exceptions provided for under the following
article.
Article 15, Exceptions to the Breeder's Right, provides,
“(1)
[Compulsory exceptions] The breeder's right shall not extend to
(i) acts done privately and for non-commercial purposes,
(ii) acts done for experimental purposes and
(iii) acts done for the purpose of breeding other varieties, and, except where
the provisions of Article 14(5) apply, acts referred to in Article 14(1) to
Article 14(4) in respect of such other varieties.”
otherwise disposed of to others, by or with the consent of the breeder, for purposes of exploitation of
the variety Article 6(1) UPOV 1991
95
Article 5(1)(ii) UPOV 1991; The variety shall be deemed to be distinct if it is clearly distinguishable
from any other variety whose existence is a matter of common knowledge at the time of the filing of
the application. In particular, the filing of an application for the granting of a breeder's right or for the
entering of another variety in an official register of varieties, in any country, shall be deemed to render
that other variety a matter of common knowledge from the date of the application, provided that the
application leads to the granting of a breeder's right or to the entering of the said other variety in the
official register of varieties, as the case may be. Article 7 UPOV 1991
96
Article 5(1)(iii) UPOV 1991; The variety shall be deemed to be uniform if, subject to the variation
that may be expected from the particular features of its propagation, it is sufficiently uniform in its
relevant characteristics. Article 8 UPOV 1991
97
Article 5(1)(iv) UPOV 1991; The variety shall be deemed to be stable if its relevant characteristics
remain unchanged after repeated propagation or, in the case of a particular cycle of propagation, at the
end of each such cycle. Article 9 UPOV 1991
98
Article 1(iv) UPOV 1991, “…the person who bred, or discovered and developed, a variety; the
person who is the employer of the aforementioned person or who has commissioned the latter's work,
where the laws of the relevant Contracting Party so provide, or the successor in title of the first or
second aforementioned person, as the case may be.”
Although exemptions (i) and (ii) are analogous to the limitations on an infringement action
under patent legislation acts that would fall under exemption (iii) of the convention would fall
foul of patent provisions. For example in the United Kingdom, a jurisdiction regarded as
preferential to the status of its farmers, the patent act contains a restriction on infringement
actions. It provides,
“An act which…would constitute an infringement…shall not do so if…it consists of
the use by a farmer of the product of his harvest for propagation or multiplication by
him on his own holding, where there has been a sale of plant propagating material to
the farmer by the proprietor of the patent or with his consent for agricultural use…”99
Not all jurisdictions possess a patent infringement limitation clause and in those that do the
clause is never obligatory.100 Surveys will show that the clause only permits farmers to grow
the first crop for sale and that subsequent crops are not authorised and will thus constitute
infringement of the seed companies monopoly right.
Indeed it is the standard practice of agricultural seed giants101 to impose a contractual term102
requiring the farmer to purchase new seeds each year. Since ten largest seed companies
control 30% of the $24.4 billion commercial seed market farmers have little choice in the
terms of contractual terms.103
For over ten-millennium farmers have saved the seeds of the previous harvest for the sowing
of the next. Many farmers, particularly those with smaller holdings and crops of less value
per unit, continue to depend upon the ability to retain a percentage of their seed from which
they can grow the next crop.104
However, farmers can be held to infringe monopoly holders’ rights without a positive act.
Unlike with all other forms of monopoly rights self-replicating inventions can replicate
99
§60(5)(g) United Kingdom Patent Act 1977 (as amended)
Patent provisions survey conducted by the author on Westlaw in December 2002
101
Contractual terms of GM crop seed can be obtained by request to Monsanto UK Limited, The Maris
Centre, 45 Hauxton Road, Trumpington, Cambridge, CB2 2LQ
102
“Farmers buying Monsanto's seed must sign a contract promising to buy fresh seed every year. And
they must let Monsanto inspect their fields." Dave Margoshes, Vancouver Sun, 14th August 1999.
103
ETC (formerly RAFI): ‘Globalization, Inc. - Concentration in Corporate Power: the Unmentioned
Agenda,’ www.rafi.org
(accessed 24th September 2001)
104
The Rural Advancement Foundation International (NGO) http://www.rafi.ca.
100
without an ‘illegal act’ being perpetrated by a legal person or by an agent under a legal
persons control. A fundamental characteristic of monopolist rights systems is that they are
premised on a presumption of mala fides. Thus, with plant monopoly rights the production
without authorization of a patented object will constitute infringement.
Consider field A, which contains GM canola. It is several miles from field B, but wind
carried pollen from field A fertilizes field B’s non GM canola. Seed is gathered from field B
and eventually some of it is resown to provide the next years crop. The seed germinates and
field B now contains a proportion of GM crop. This crop does not fall under any exemptions
from infringement. Nor does it matter whether the owner of field B knew of the crops
contamination. The owner of field B has infringed the monopoly right holder’s right.
In 1999 Monsanto brought an infringement action against Schmeiser seeking damages105 for
the 320 hectares of his land contaminated by Monsanto's herbicide-resistant Roundup Ready
canola. Schmeiser insisted that company seed could easily have blown on to his soil from
passing canola-laden trucks. He claimed,
“I never put those plants on my land.”
However, monopolist rights premised on the basis of mala fides make no distinction between
the innocent infringer and the guilty.106 Some practitioners hold, that this would not be the
case in the United Kingdom, as with a plant patent the farmer would have to take advantage
of the patents function in order to infringe the monopolist right holder’s right.
If the practitioners’ holding is correct then in the case of Monsanto's herbicide-resistant
Roundup Ready canola a farmer would only infringe Monsanto’s patent if they sprayed a
glycophosphate herbicide. However, what if the monopolistic right was for an application
involving improved drought resistance,107 greater water absorption,108 or greater temperature
105
Monsanto sought patent infringement damages totaling $400,000. This was comprised of; $250,000
in legal fees, $105,000 account of profits, $13,500 ($15 an acre) for technology fees and $25,000 in
punitive damages. http://www.percyschmeiser.com/
106
In terms of damages some jurisdictions do contain the clause limiting exemplary damages without
prejudice to other remedies. For a farmer who makes a substantial investment on each year’s crop and
who suddenly finds that their crop is another’s property is perhaps little concerned with fine
distinctions between mere damages and combined damages.
107
Zhu, ‘Salt and drought stress signal transducing in plants,’ Annual Review of Plant Physiology and
Plant Molecular Biology [2002] 52, pp. 247-273
108
Steudle, ‘The cohesion-tension mechanism and the acquisition of water by plant roots,’ Annual
Review of Plant Physiology and Plant Molecular Biology [2001] 52, pp. 847-875
resistance109 the farmer unless destroying the crop immediately would have no choice but to
infringe the plant patent.
Removal of crops is not always a possibility and not merely due to economical
considerations. Many GM varieties do not differ to the naked eye from unmodified crops. To
the untrained eye the same might be said of a new plant variety. The current monopolist right
systems impose on farmers the duty of countermanding nature or should that fail to identify
the monopolistic right contaminated crop from their own uninfected crop.
In fact, even for the holders of monopoly rights identifying the subjects of their plant
monopoly rights can be a difficult task. Unsatisfied with the already imposing legal
machinery at their behest they have resorted to other methods of ensuring their sovereign
position in the food chain.
Genetic Use Restriction Technologies (GURTs), known more appropriately as death seed, do
not produce fertile seed. As a result farmers may not save seeds, nor can they benefit from
the genetic material of the plant through further breeding. Each time the farmer wishes to
plant a crop incorporating the death seed gene they must purchase it directly from the
biotechnology company or its agents. Not only does the conception of GURTs seem
abhorrent, but when placed in the context of a vendor consumer relationship it will be seen
that the biotechnology company poses a monopoly unaffected by perpetuity rules. The
GURT is not a monopoly right in a legal sense it is a perverse modification of nature. It does
however show that avarice and greed are perhaps not the best stimulus for today’s research
institutions.
It would have been expected that manipulations designed to inhibit plant fertility would be
outlawed. However in the United States Delta and Pine Land110 and the United States
Department of Agriculture market seed111 which has been genetically engineered to ensure
that it does not germinate on harvest thus forcing farmers to buy seed at each planting season.
The presence of this technology serves as an arm of economic repression. The sole purpose
of the technology is to expand monopolist rights. An argument ad baculum has become
frequently employed it states that,
Iba, ‘Acclimative response to temperature stress in higher plants: Approaches of gene engineering
for temperature tolerance,’ Annual Review of Plant Physiology and Plant Molecular Biology [2002]
53, pp. 225-245
110
Now controlled by Monsanto
111
See US patent No.5723785
109
“Should a State fail to establish an effective and well balanced system for the
protection of plant varieties as foreseen by the UPOV Convention, breeders might
wish to resort to other mechanisms, such as GURTs, to assure their economic
interests.”112
If legitimacy is possible in monopolistic rights and if it is to be obtained then the ‘moral and
ethical consequences of innovations’ should be dealt with by forbidding the grant of
monopoly rights where necessary and prohibiting the use of technologies contrary to societies
benefit.
4. Conclusion
The difficulties inflicted on the developing countries by monopolist rights are the result of a
complex web of interacting factors.113 Nevertheless the principal components might be
identified as the lack of economic security114 and the forced dependence of the lesser
industrialised nations on the most industrialised nations.115 It is interesting to note that trade
with lesser industrialised nations produced record profits for multinational biotechnology
corporations while increasing rural poverty116 and fuelling further social dislocation in the
lesser developed countries.117
Monsanto and the Biotechnology industry still hold that,118
“without genetic engineering the world cannot be fed.”119
112
Memorandum Prepared by the Office of UPOV on the Genetic Use Restriction Technologies, 10 th
January 2003 http://www.upov.int/en/about/key_issues.htm (last accessed 5th February 2003)
113
U.N. Food & Agric. Org. (FAO), FAO Symposium on Agriculture, Trade and Food Security, Paper
No. 3: Experience with the Implementation of the Uruguay Round Agreement on Agriculture:
Developing Country Experiences available at http://www.fao.org/DOCREP/meeting/x3065E.htm
114
World Bank, Poverty And Hunger: Issues And Options For Food Security In Developing Countries
(1986).
115
Gonzalez, ‘Institutionalising inequality: The WTO agreement on agriculture, food security, and
developing countries,’ Columbia Journal of Environmental Law [2002] p. 433
116
Deen, A Richer World Keeps Failing to End Hunger, Says U.N.
http://www.proutworld.org/news/en/2002/oct/20021028ari.htm
(accessed 13th February 2003)
117
Maskus, 'Lessons from Studying the International Economics of Intellectual Property Rights,'
Vanderbilt Law Review [2000] 53, p. 2219
118
Transcript from speech delivered by Hendrik Verfaillie, President, Monsanto at the Forum on
Nature and Human Society, National Academy of Sciences, Washington D.C. 30 th of October 1997.
Available from http://www.monsanto.co.uk/
119
Spinney, ‘Biotechnology in Crops: Issues for the developing world,’ Research paper for Oxfam GB,
May 98
They hold that to meet the food security needs of the coming decade there is a need to
increase agricultural productivity on presently available land.120 They draw on statistics from
1960 to 1990121 showing the increasing productivity of cereals and expansion of arable land
through enormous increases in fertiliser and insecticide use. The statistics concern
agricultural output from the more industrialised nations they take little account of food
production in the least industrialised nations.
The IFPRI’s 1999 study showed that there was sufficient food produced to eradicate world
hunger. The difficulty lies in distributing food to those regions in need. The wealth of these
regions has to be increased and public122 distribution systems implemented. Granting
monopolist rights has the result of shrinking state distribution systems or inhibiting their
development. Food security involves ensuring the access of people to nutritious foods at
affordable prices. The increased productivity of a cereal plant is not of great relevance to
someone who cannot afford its fruit. Food ought to be a human right and its systematic
destruction whether to maintain market prices or as a remedy to monopolist right
infringement ought to be outlawed.
A suggestion is that rather than granting plant monopoly rights research could be undertaken
by public institutions in a none proprietary regime. Funding could be drawn from the
proportion of society and societies with the greatest wealth.123 Cataloguing and creation of
gene libraries would be facilitated since institutions would have no inhibitions to sharing and
joint research. Beneficial technologies could be applied almost immediately and without the
imposition of royalties. A non-proprietary system would lead to greater transparency
whereby the issues of morality, societal need and biodiversity might be discussed on an equal
footing.
Another suggestion that has generated considerable support in the least industrialised nations
is to remove food and agriculture from the ambit of the WTO. This would permit government
120
In 2000 Monsanto's genetically engineered seed accounted for 94% of the total area sown to GM
crops. ETC (formerly RAFI): ‘Globalization, Inc. - Concentration in Corporate Power: the
Unmentioned Agenda,’ www.rafi.org
(accessed 24th September 2001) c.f.
http://www.monsanto.co.uk/
121
Described as the ‘Green Revolution.’
122
Montesqu’s distinction between civil and public. The United Nations FAO, or the WHO would
qualify.
123
The more industrialised nations are empirically observed to cope with property rights on agricultural
products better than less industrialised nations. They have the greatest security in terms of purchasing
power and therefore food. Redistribution of this wealth would permit the industrialisation of less
industrialised nations, whilst by application of the labour theorem stimulate more activity in the most
developed countries as unearned increment would be reduced.
of food and agriculture by principles of food sovereignty and not by principles misleadingly
presented as ‘free-trade.’ For societies with little wealth or industrialisation the benefits of
added costs to food is highly questionable.
Even for industrialised nations the issues of monopolistic rights on food are laden with
difficulties. For example, the imposition of monopolistic rights developed in the context of
mechanical inventions on self-replicating objects is wholly bizarre. Not only is it perverse
with regard to the natural order of the plant kingdom, it is contrary to the justifications for
property. Granting plant monopolistic rights effects the autonomy of everyone.124 Dominium
over things is imperium over other human beings.125 If a farmer must destroy their crop, or
pay royalties on its sale due to an irresistible process of nature why should they labour to
produce? Surely, it would be safer for them to simply build on their land and rent it.126
According to the labour theory, incentive to innovate and research is dependant on the award
of wealth. It is evident that plant breeding and selection have been conducted since the days
of Catal Hüyük in 6,000 B.C.;127 by comparison, plant monopoly rights are a very recent
institution. However, if the labour theorem is correct surely it would seem sensible only to
grant monopoly rights that are related to a product that is wholly within the public interest.
Thus, a person would be encouraged to develop only those things that society required. This
would not prevent the advancement of technology, as objects identified or discovered along
the way would not be laden with notions of proprietorship and wealth. They would instead be
free for use or incorporation by everyone.
A notion of focusing the boundaries on what can qualify for monopolistic rights is not a
notion alien to the Western conception of monopoly rights. A mathematical formula or the
discovery of natural phenomena, it will be recalled, are not capable of being owned.128
Except, that is by society or rather all societies, as a whole. For intangible objects, this must
be the purest form of personal autonomy.
124
By direct construction of rights it will be observed that the imposition by an individual on a product
produced by another that also bears some rights of the other results in a direct transmutation of the
primary obligation through the other. E.g. if a plant costs a farmer Ŧ per unit then the farmer will
charge Ŧ + ε per unit.
125
Cohan, ‘Property and Sovereignty,’ p. 13
126
After all it has been shown that unearned increment is the greatest source of wealth. See Davenport,
‘Extent and significance of Unearned Increment,” Bulletin of the American Economic Association,
Series 4, No.2 (1911) c.f. Cohen, ‘Property and Sovereignty’
127
Helbaek, ‘First impressions of the Çatal Hüyük plant husbandry,’ Anatolian Studies [1964] 14, pp.
121-3.
128
The attribution of gratitude and honour is distinct from notions of ownership as the former lack the
right to exclude others.
In regard to the labour theory, it ought to be noted that whilst proponents of monopoly rights
argue for financial remuneration many of humankind's greatest successes were performed for
the good of humanity. As Hume indicated it is property that detracts humankind from their
humanity.129
129
In the absence of plant monopoly rights would GURTs have ever been imposed on society?
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Case list
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Case C-116/89, BayWa AG v. Hauptzollamt Weiden, 1991, ECJ (1st Chamber)
Diamond v. Chakrabarty 447 U.S. 303
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Monsanto Canada Inc v Schmeiser [2001] 12 C.P.R. (4th) 204 (Fed Ct (Can))
T1054/96 NOVARTIS/Transgenic plant [1999] E.P.O.R. 123 (EPO); O.J. EPO [1998] p. 511
T19/90 HARVARD/Oncomouse, O.J. EPO [1990] p. 476
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Legislation
Commission Regulation (EC) No. 1238/95 (‘Fees Regulation’)
Commission Regulation (EC) No. 1239/95 (‘Proceedings Regulation’)
Commission Regulation (EC) No. 1768/95 (‘Agricultural Exemption Regulation’)
Convention on Biological Diversity 1992 (United Nations)
Council Regulation (EC) No. 2100/94 of 27 June 1994 on Community Plant Variety Rights
Council Regulation 2100/94 on Community plant variety rights [1994] O.J. L227/1
International Convention for the Protection of New Varieties of Plants
International Undertaking on Plant Genetic Resources 1983 (United Nations)
Plant Varieties and Seeds Act 1964
Seed and Phytogenetical Creations Law 1973 (Argentina)