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4-Patents: Agracetus/W.R. Grace GE soybean patent challenge at EPO

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TITLE:  Monsanto's Species-Wide Patent on Trial:
SOURCE: ETC Group, USA/Canada, News Release
DATE:   Apr 28, 2003

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Monsanto's Species-Wide Patent on Trial:

May 6-7, European Patent Office Hears Patent Challenge in Munich - Eight
and One-Half Years Later!

Remember 1994? Nine years ago: Yasser Arafat, Yitzhak Rabin, and Shimon
Peres won the Nobel Peace Prize, Nelson Mandela was elected President of
South Africa, US President Bill Clinton sent ground troops to the Persian
Gulf to counter a move by Iraq's Saddam Hussein, and Brazil won the World
Cup. The United Nations' Biodiversity Convention entered into force in
1994 and the Uruguay Round of GATT was drawing to a close. In the "life
sciences" cosmos, Monsanto and Dupont were chemical companies with minor
interests in seeds and Syngenta did not yet exist. ETC Group was known as
RAFI. Also in 1994, a small biotech subsidiary of W.R. Grace, Agracetus,
won a breathtakingly broad patent on all genetically modified soybean
varieties, European Patent No. 301,749.

On May 6-7, 2003, almost nine years after ETC Group (formerly known as
RAFI) officially challenged Agracetus/W.R. Grace's patent monopoly on all
genetically modified soybeans, the European Patent Office will hold an
oral hearing to decide the fate of one of agbiotech's most notorious
patents. It was the emergence of species-wide patents on soybeans and
cotton in the early 1990s that first galvanized governments, scientists
and CSOs to seriously question the morality and ethics of intellectual
property in the early 1990s. (1)

Specious Species Patent: On March 2, 1994 a US-based biotech company,
Agracetus (then-subsidiary of W.R. Grace & Co.), won a European patent on
all genetically engineered soybean varieties and seeds (regardless of the
genes used) and all methods of transformation (one of the patent's claims
actually extends beyond soya to other plant species!).(2) Even biotech
industry insiders were stunned by W.R. Grace's sweeping patent monopoly
on one of the world's major food crops. ETC Group, with the support of 18
civil society organizations worldwide, filed formal opposition to the
patent in December 1994.

ETC Group's 1994 "Notice of Opposition Against European Patent No.
301,749" is available here:

"ETC Group believes that EPO must throw out Monsanto's patent because it
is technically flawed and morally unacceptable," said Jim Thomas, the UK-
based Programme Officer of ETC Group. "We don't want the patent pruned -
we want it revoked," said Thomas. "After waiting nine years to get an
oral hearing, we are firm in our conviction that intellectual property
jeopardizes world food security, undermines conservation and use of
biodiversity, and increases the economic insecurity of farming
communities. Instead of promoting innovation, intellectual property is
stifling research, limiting competition and thwarting new discoveries,"
said Thomas.

At the European Patent Office in Munich, ETC Group will be represented by
Mr. Daniel Alexander, a London-based barrister specializing in
intellectual property law. Mr. Alexander served as a commissioner on the
United Kingdom's Commission on Intellectual Property Rights. In Munich,
ETC Group will join Greenpeace and other civil society organizations that
are actively involved in opposing the patent. Stephan Geene, an activist
who cooperates with Greenpeace, was also among the original patent
challengers in 1994. The EPO has taken the unusual step of scheduling two
days for the hearing and has indicated that it will move to a bigger room
to accommodate the interested parties.

Musical monopoly chairs: ETC Group and Stephan Geene were not the only
parties to challenge the soybean patent back in 1994. We were joined by
agrochemical and seed industry giants who feared the patent would arrest
soybean research worldwide, including: Sandoz, Ciba Geigy, Monsanto,
Dekalb, Pioneer Hi-Bred. Where are they now? Sandoz and Ciba Geigy merged
to become Novartis in 1996, Monsanto took over Dekalb in 1998, and DuPont
acquired Pioneer Hi-Bred in 1999. RAFI changed its name to ETC Group in 2001.

Monsanto's About-Face: In 1994 Monsanto submitted an exhaustive, 292-page
opposition statement that shredded the technical merits of Agracetus's
soybean patent. Monsanto's lawyers wrote that the soybean patent should
be "revoked in its entirety," is "not... novel", "lacks an inventive
step," and "sufficient disclosure [of scientific method] is woefully
lacking." But when Monsanto acquired Agracetus in April 1996, it withdrew
its challenge, reversed its position and announced that it would defend
its newly-acquired patent!(3)

Soybean Superpower: Back in 1994, genetically modified soybeans were not
yet commercially available. In 1996, Monsanto acquired the Agracetus
company and its soybean patent - just one of many biotech companies and
patents Monsanto would devour in its binge buying to gain supremacy in ag

Last year, Monsanto accounted for all of the GM soya seed planted
worldwide -- occupying 36.5 million hectares in 2002 - that's over half
of the 72 million hectares devoted to all soybeans worldwide. In other
words, Monsanto's exclusive monopoly claims extend to more than one-half
of the soya crop - one of the world's most important food feed and
oilseed crops.(4) Worldwide, the commercial soybean market was valued at
over $22 billion in 2001. (5)

"The statistics speak for themselves," said Hope Shand, Research Director
of ETC Group. "Monsanto is the world's only GM soybean superpower, a
single company has been awarded monopoly control over one of the world's
most important food crops." "The existence of EP No. 301,749 has been and
remains a strong deterrent to any competition trying to challenge
Monsanto's dominance in GM soybean research and markets," said Shand.

"We realize that Monsanto's species-wide soybean patent is just one of
the factors behind Monsanto's present-day monopoly on GM soybeans, but
this is a dangerous precedent that cannot be allowed to stand," explained

While soya is a relatively minor crop in Europe, it is a major commodity
in other regions, including China, India, Argentina, Brazil and North
America. If Monsanto's patent is allowed to stand, it could set a
dangerous precedent. Even the United States government struck-down the
species-wide cotton patent, and refused to allow broad claims on all GM
soybeans.(6) Now, nine years later, it's time for the EPO to act!

ETC Group will join Greenpeace Germany at a press conference in Munich on
Monday, 5 May, 11:00 hrs, the day before the EPO hearing on Monsanto's
patent. Hope Shand and Jim Thomas of ETC Group will attend the EPO
hearing and will be available to respond to media inquiries.

For more information:

Hope Shand, ETC Group (USA) -- 919 960-5223
Jim Thomas, ETC Group (UK) -- cell: 44 (0)7752 106806
Silvia Ribeiro, ETC Group (Mexico) -- from outside
Mexico City: +52 55 2653 3330 Calling within Mexico City: 44 55 2653 3330
Hope Shand and Jim Thomas can be reached in Munich, May 5-7, cell:
44 7752 106806

For additional information about the press conference in Munich, please

Uli Brendel, Greenpeace Germany Phone: + 49-171-87 80 844 (cell)

The Action Group on Erosion, Technology and Concentration, formerly RAFI,
is an international civil society organization headquartered in Canada.
The ETC group is dedicated to the advancement of cultural and ecological
diversity and human rights. The ETC group is also a
member of the Community Biodiversity Development and Conservation
Programme (CBDC). The CBDC is a collaborative experimental initiative
involving civil society organizations and public research institutions in
14 countries. The CBDC is dedicated to the exploration of community-
directed programmes to strengthen the conservation and enhancement of
agricultural biodiversity. The CBDC website is .


1 For example, ETC Group (then RAFI) participated in the Crucible Group,
a non-consensus process involving governments, industry, scientists, CSOs
and indigenous peoples from North and South, to examine policy issues
related to biodiversity and intellectual property.
2 The claims of the patent are 1-25. Claims 1-16 are to methods of making
'genetically transformed' soybean plants using a particle accelerator
(gene gun). Claims 17-20 are to 'genetically transformed' soybean seeds,
however produced. Claim 21 is to seed claimed in claim 17 obtainable by a
method claimed in any of claims 1-16. Claim 24 is to a method of making
'a genetically transformed line of plants' (any plants, not just soybean
plants) by the processes defined in claims 1-17, followed by growing the
transformed plant to produce seed, self-pollinating the seed, growing it
and assaying its progeny. Claim 25 is to applying this process to soybeans.
3 ETC Group (then as RAFI) reported on the reversal in the July/August
1996 Communique, available on the Internet:
4 Based on statistics available on Monsanto's website (
and statistics on global GM area provided by ISAAA (
5 According to FAO Statistical Databases, 2001. 6 The US
equivalent of the Monsanto EPO patent, is US patent no. 5,015,580. It is
much narrower than the European patent. Claims are only to processes of
transforming soybeans and soybean lines. There are no independent product
claims, and no claims to transforming plants other than soybeans. US
patent no. 5,159,135, the Agracetus' species-wide claim on all GM cotton,
was revoked by the US Patent & Trademark Office after being re-examined
in 1994.