Dear all,

Last week, we had a meeting together with Dagmar with the European Coordination Via Campesina (ECVC) to discuss the problem areas for farmers and peasants with regards to patents, in order to better understand their position and potentially build more synergies with the work that is currently being done on seed marketing and the NGT files, where the patents issue has gathered quite the interest of policymakers.

Talk with ECVC on patents (with linkages to NGT & PRM marketing files)

ECVC stressed 3 problem areas with regards to patents & their impacts on peasants and farmers.

1. Native traits

The main problem from the perspective of ECVC is the patentability of “GENETIC INFORMATION” contained in plants and seeds that are used or marketed, and the extension of the scope of patent protection to native traits.

Their argument is not centered around the difference between conventional breeding and GE, but rather on ‘genetic information’ being patented, whichever the breeding process. This focus and narrative also comes from the work that they are doing at the international level on “digital sequence information” (in CBD and ITPGRFA circles).

2. Burden of proof, litigation & detection

• Detrimental consequences of burden of proof in patent disputes
• Impact on breeders : breeders may fear judicial proceedings and avoid use of variety or its products (even if there is no outright violation, and even if material is deposited through Budapest Treaty). ECVC cite the conflict between Rijk Zwaan (patent on pathogen resistance in lettuce) and Graines Baumaux (plant variety protection on lettuce variety), where Baumaux could not sell its variety’s seeds because the dispute was known and farmers did not want to take the risk.
• Impact on farmers : since peasant/farmers varieties are not sequenced & they evolve through on-farm dynamic management, it is difficult to prove that farmers/peasants have not used the patented process/product (Schmeiser case)
• Even when you can prove the fact that you do not need consent to use patented plant/information in principle, litigation and its implementation become an additional problem, since huge powers come with the start of an infringement procedure (full confiscation of lots etc, like the Argentina soymeal case). This can create huge losses and it is too important a risk to not be able to use or sell harvest/products during the time of proceedings : rules lead to avoidance of material !
• Lack of approved detection method for NGTs (especially certain categories under the Commission proposal) could make it even more difficult to ensure legal certainty and protect oneself from the scope of patent protection. If there is a detection method, it can at least be applied to show that the patented “invention” has not been used by the farmer.

3. Farm saved seeds

• Biotech Directive (Article 11) just references PVP Rules and leaves the extent of the privilege and implementation to national laws. UPC (Art.27) has a more direct impact on patent protection and FSS, but today very few patents with unitary protection and reference to PVP system is maintained.
• Different interpretations are still possible on farm saved seeds provision in the Biotech directive (lack of jurisprudence means lack of certainty)
• Option A= Farmers privilege applies to varieties affected by patent, regardless of whether PVP on variety or not
• Option B= If UPOV style title also exists on variety where there is patent : royalties to the breeder for FSS under the conditions of plant variety protection. If variety is not protected through UPOV but its use falls under/ is restricted by a patent, then there is no farmers privilege?

ECVC also thinks that the provisions of the seed marketing proposal on heterogeneous material, when analysed together with the NGT proposal, compromise seed and food sovereignty. They fear that in their current form, the heterogenous material openings might be used as an entry point for NGT plants, which are more difficult to stabilize and turn into DUS varieties. They cite the example of Bt maize in France and a GEVES study done on the trait.

If you have any questions or remarks, do let me know so that we can address them in potential future work!

 Best,

Fulya

Fulya BATUR, PhD 

Consultancy, Training, Research & Legal Advice 

www.kybele-consult.com

0032.484.77.86.18