4-Patents: Intellectual property enhances corporate monopoly and bioserfdom
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TITLE: Intellectual Property Enhances Corporate Monopoly, Bioserfdom
SOURCE: Environmental News Network, distributed by Knight Ridder/Tribune
Business News, by Hope Shand
DATE: Dec 6, 2002
------------------ archive: http://www.gene.ch/genet.html ------------------
Intellectual Property Enhances Corporate Monopoly, Bioserfdom
Dec. 6--"Intellectual property is the oil of the 21st century. Look at the
richest men a hundred years ago; they all made their money extracting
natural resources or moving them around. All today's richest men have made
their money out of intellectual property." -- Mark Getty, grandson of the
oil magnate J. Paul Getty.
Twenty years ago, the concept of intellectual property was little known or
discussed outside of corporate boardrooms, government patent offices, or an
exclusive circle of trade negotiators.
Today, intellectual property has become a powerful tool to enhance
corporate monopoly and consolidate market power. Exclusive monopoly patents
are giving a steadily shrinking number of corporate "gene giants"
unprecedented control over the biological basis for commercial agriculture.
Intellectual property is being used to eliminate the right of farmers to
save and exchange seed and to breed their own crops. Instead of promoting
innovation in agriculture, patents are stifling research and hindering
Monopoly control over plants, animals, and other life forms jeopardizes
world food security, undermines conservation and use of biological
diversity, and threatens to increase the economic insecurity of farming
The term intellectual property (IP) refers to a group of laws -- such as
patents, plant breeders' rights, copyright, trademarks, and trade secrets --
that are intended to protect inventors and artists from losing control
over their intellectual creations: their ideas.
Intellectual property rights are granted by a state authority for a
specified time period. The inventor has the right to exclude others from
making, using, or selling his/her creation and to determine under what
circumstances others may use the protected idea or innovation. The types of
intellectual property most relevant to plants and other life forms are
patents and plant breeders' rights.
Proponents of intellectual property argue that these laws promote
innovation by rewarding inventors of new technologies and that IP laws are
essential because a temporary monopoly enables companies to recoup their
Historically, farmers have been the primary innovators in agriculture. They
have played, and continue to play, a major role in contributing to the
introduction and development of crops and livestock. One hundred years ago,
virtually all of the crops grown in the United States were farmer-bred
In his book Unnatural Selection, Cary Fowler describes a free seed
distribution program established by the U.S. government to encourage farm-
based plant breeding. In 1897. When this program was at its peak, the U.S.
government freely distributed 22 million packets of seeds to U.S. farmers.
The goal was to utilize the ingenuity and skills of the nation's farmers in
geographically diverse regions to select, breed, and multiply thousands of
novel plant varieties. It was the innovation of farmers that helped to
build the agricultural base of the United States.
In the 20th century the rights of farmers to freely exchange and control
their genetic materials were severely eroded as plant and animal genetic
resources became subject to monopoly control under evolving intellectual
property laws. As outlined below, the history of intellectual property laws
in the United States demonstrates the seed industry's quest to sever the
age-old relationship between the farmer and the seed.
The Plant Patent Act of 1930, the first plant intellectual property law in
the United States, was designed to reward the developers of asexually
propagated plants (mostly flowers, fruits, and ornamentals). Food crops
were intentionally excluded from coverage under the 1930 law on moral
grounds, because food was considered too important to human well-being to
But times have changed. The past 35 years have witnessed the privatization
of plant breeding and seed sales. The seed industry, increasingly dominated
by agrochemical and drug companies, began lobbying vigorously for stronger
intellectual property protection for plants as a way to stimulate
innovation and to create incentives for corporate breeders. In reality,
plant patenting was exactly what the industry needed to privatize, through
legal means, what it could not control by physical means.
In 1970, after years of seed industry lobbying, the U.S. Congress passed
the Plant Variety Protection Act (PVPA), a type of intellectual property
designed to reward developers of new sexually reproduced plant varieties
such as soybeans, wheat, cotton, and many vegetables. This breeder's rights
law contained two important traditional features. It allowed plant breeders
to freely use each other's protected varieties for further breeding
experiments. It also permitted farmers to reuse seed from their harvests
and to sell small quantities to their farm neighbors without having to pay
royalties or ask permission. This was known as the Farmer's Right, or
The fundamental right of the farmer to save his or her seed for replanting
was considered so important that the seed industry made assurances to
Congress that no further attempts would be made to expand proprietary
rights over seeds or endanger the farmer's exemption.
But those promises were quickly forgotten. In 1994 the U.S. Congress
delivered a crushing blow to farmers' rights when it amended the PVPA and
eliminated the farmers' right to resell proprietary seed from their harvest
to farm neighbors.
The pattern is a familiar one. Every time plant intellectual property laws
have been amended, it expands the scope of protection and the rights of
corporate breeders at the expense of farmers, diversity, and society. It is
clearly in the interest of those with money and power to amend any
intellectual property system to strengthen their legal monopoly.
Intellectual property has been a major factor in the growth and
consolidation of the U.S. biotechnology industry. In the 1980s U.S. patent
laws were redefined to allow for exclusive monopoly control of all
biological products and processes. Over the course of a single decade, the
U.S. government took giant steps to accommodate the corporate desire to
--In 1980 the U.S. Supreme Court ruled in the landmark case of Diamond v.
Chakrabarty that genetically engineered microorganisms are patentable.
--In 1985, the U.S. Patent and Trademark Office ruled that plants
(previously protected by Plant Variety Protection laws and the Plant Patent
Act) could qualify under the stronger utility patent laws.
--In 1987, the U.S. Patent and Trademark Office ruled that animals are also
patentable. As a result of these decisions, virtually all living organisms
in the United States, including human genetic material, became patentable
subject matter, just like any other industrial invention.
As one industry analyst explains, "Since 1980 it can no longer be said that
something is not patentable just because it is living. ... Biotechnology
has advanced so rapidly in recent years that there is now virtually no life
form which does not have the potential as the subject of patent
The patenting of life forms represents a radical departure from the scope
of traditional intellectual property law. In addition to the basic criteria
for patenting (novelty, usefulness, and nonobviousness) there is a well-
established doctrine in patent law that "products of nature" are not
patentable. But with the advent of genetic engineering, it did not take
long to redefine what is considered human "invention" and legally
Recent years have seen a breathtaking consolidation of power over plant
genetic resources worldwide. Seed is the first link in the food chain.
Whoever controls the seed controls the food supply. For companies that have
combined interests in seeds and agrochemicals, the patented seed is the
ideal delivery system for a package of proprietary technologies: genes and
As a result, many of the world's largest agrochemical and pharmaceutical
corporations have spent billions of dollars acquiring seed and biotech
companies. For example, Monsanto has spent more than $8 billion acquiring
seed and biotech companies; DuPont acquired Pioneer Hi-Bred, the world's
largest seed company, for $9.4 billion; Dow bought Cargill Seeds North
America last year.
Today, the top 10 seed companies control almost one-third of the $24.7
billion commercial seed market. But corporate market share is much higher
in specific seed sectors and for certain crops. For example:
--Forty percent of U.S. vegetable seeds come from a single source. The top
five vegetable seed companies control 75 percent of the global vegetable
--DuPont and Monsanto together control 73 percent of the U.S. seed corn
--Just four companies (Monsanto, DuPont, Syngenta, Dow) control at least 47
percent of the commercial soybean seed market. An estimated 10 percent of
the market is in public varieties. An estimated 25 percent of North
American soybean seed is farmer-saved, not newly purchased.
--At the end of 1998, a single company, Mississippi-based Delta & Pine
Land, controlled more than 70 percent of the U.S. cottonseed market. Delta
& Pine Land is perhaps best known for its notorious patent on genetic seed
sterilization (aka terminator).
With the advent of genetic engineering, the Gene Giants are staking far-
reaching claims of ownership over a vast array of living organisms and
biological processes. As a result, fewer and fewer companies are making
critical decisions about the agricultural research agenda and the future of
agriculture worldwide. The power of exclusive monopoly patents is giving
these companies the legal right to determine who gets access to proprietary
science and at what price.
With the evolution of intellectual property laws, farmers are losing the
right to use and develop plant diversity. Today, under U.S. patent law, it
is illegal for farmers to save patented seed and reuse it. Why does this
matter? Farmers have been selecting seeds and adapting their plants for
local use for more than 200 generations.
Up to 1.4 billion people in the developing world depend on farm-saved seeds
as their primary seed source. Crop genetic diversity enables farmers to
adapt crops suited to their own ecological needs and cultural traditions.
Communities that lose traditional varieties, adapted over centuries to
their needs, risk losing control of their farming systems and becoming
dependent on outside sources of seeds and the inputs needed to grow and
protect them. Without an agricultural system adapted to a community and its
environment, self-reliance in agriculture is impossible.
When genetic engineers at Monsanto or DuPont develop a new variety of
soybean, corn, or cotton, they are building on the accumulated success of
generations of farmers who have selected and improved seeds for thousands
of years. The companies insist that they "invented" their genetically
engineered plants and that they should be rewarded with exclusive monopoly
patents. In reality, corporate plant breeders are fine-tuning and modifying
plants that were developed by anonymous farmers and the more recent
contributions of institutional breeders.
Monsanto, the world's second largest seed company (now itself owned by
Pharmacia), requires farmers -- its customers -- to sign a gene-licensing
agreement before they buy the company's patented, genetically engineered
seeds. The licensing agreement prohibits the farmer from reusing the seed
for any reproductive purpose, even on his/her own land.
If farmers are caught infringing the patent, Monsanto is "vigorously
prosecuting" them in court. In some areas, Monsanto is literally policing
rural communities with Pinkerton investigators -- hired detectives -- to
root out seed-saving farmers. The company has filed more than 475 lawsuits
against farmers for patent infringement and violation of technology user
In other words, farmers are being turned into criminals, and rural
communities are becoming corporate police states. The fundamental issue is
control. With the advent of genetic engineering, the farmer is becoming a
renter of proprietary seeds and livestock -- and he or she is losing the
right to make farm-level decisions. Companies like Monsanto are attempting
to dictate how farmers will farm and under what conditions. This is
popularly known as "bioserfdom." The result is that food production is
being taken out of the hands of independent farmers.
The economist Michael Boehlje calls it the "Wal-Marting" of American
agriculture. Farmers will raise animals or grow crops according to a
formula dictated by the end processors. Farmers will sign contracts that
stipulate precise levels of inputs, dictating what seed, fertilizer,
chemicals, row spacing, irrigation, harvesting technique, and other details
will be used.
As the Gene Giants gain control over every phase of production, processing,
and marketing -- from "farm to fork" -- the role of the farmer is reduced
to that of a contract worker. The American farmer becomes a "renter of
germplasm," rather than an independent owner-operator.
There is no doubt that patents are a powerful tool to protect corporate
monopoly, but they do not necessarily promote innovation. The monopolistic
nature of the patent process can restrict innovation, limit competition,
and thwart new discoveries.
Over time, intellectual property regimes have grown into mechanisms that
allow corporations (not individual inventors) to protect markets rather
than ideas. In today's knowledge-based economy, intellectual property
assets have surpassed physical assets such as land, machinery, or labor as
the basis of corporate value.
At the end of 1995, for example, the Hoechst group held 86,000 patents and
patent applications. According to Dr. Richard Helmut Rupp, head of Hoechst
R & D, "The most important publications for our researchers are not
chemistry journals, but patent office journals around the world." The cover
of Novartis's 1997 annual report boasts that the company holds more than
40,000 patents. IBM is now getting 10 new patents every working day.
Increasingly, access to new agricultural technologies is legally restricted
by a complex pedigree of patented gene traits. For example, one of Pioneer
Hi-Bred's genetically engineered insect-resistant corn hybrids requires
access to 38 different patents controlled by 16 separate patent holders.
The control of patented genes and traits has created legal barriers that
make it difficult or impossible for small companies or public sector
researchers to compete or gain access to new agricultural technologies.
The uncertainty and confusion over the application of patent law to living
materials has resulted in immense legal battles among corporations
competing for ownership of strategic genes, traits, and biological
processes. Not surprisingly, the number of intellectual property lawyers in
the United States is growing faster than the amount of research.
In order for patents to have economic value, corporations must defend their
patent claims and enforce licensing requirements. The transaction costs are
enormous. The legal costs alone of obtaining a patent approach $10,000, and
it typically costs $1.5 million per party to litigate a patent. Billions of
dollars are being spent on legal fees, diverting resources away from
agricultural research and societal needs.
Today, the battleground over intellectual property has moved to the
international arena. The World Trade Organization's (WTO) rules on
intellectual property obligate all member countries to implement minimum
standards of IP for plant varieties and microorganisms. In the developing
world, where the majority of farmers depend on farm-saved seed as their
primary seed source, the notion of legal restrictions on seed saving is
perceived by many as both alien and life-threatening.
IP laws require urgent societal review. Patents and plant breeders' rights
are stifling the free flow of information and genetic resources that are so
vital to human survival and sustainable agriculture worldwide.
Civil society organizations and some governments are campaigning actively
against the patenting of life. Farmers and indigenous peoples'
organizations are vocally denouncing patents which they believe threaten
food security and human dignity and are predatory on their resources and
In August 2000, the United Nations Sub-Commission for the Protection of
Human Rights warned that the WTO's intellectual property rules could
infringe on the rights of poor people and their access to both seeds and
pharmaceuticals. The 1999 United Nations' "Human Development Report"
concludes that "the relentless march of intellectual property rights needs
to be stopped and questioned."
The future of agriculture depends on the promotion and protection of the
farmer's inalienable right to save and exchange seed. If we are to reclaim
agriculture, we must resist monopoly control of life. If we are to make
agriculture truly sustainable, it must be built on biological and cultural
diversity, not uniformity, and on democratic institutions that are people-
centered, not profit-centered.
Hope J. Shand is the research director of the ETC Group, formerly the Rural
Advancement Foundation International (RAFI), a group dedicated to the
conservation and sustainable advancement of cultural and ecological
diversity and human rights.
Ms. Shand has written extensively on the topic of agricultural biodiversity
and on the social and economic impacts of new biotechnologies. She is
editor of RAFI Communique, author of Human Nature: Agricultural
Biodiversity and Farm-Based Food Security (1998), and coauthor of The
Ownership of Life: When Patents and Values Clash (1997). In 1993, Ms. Shand
authored Harvesting Nature's Diversity, the official document on
agricultural biodiversity published by the United Nations Food and
This essay is reprinted from Fatal Harvest: The Tragedy of Industrial
Agriculture, distributed by Island Press.
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