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TITLE:  Europe's (and the World's) Big Soy Berger: Patently Wrong!
SOURCE: etc group, USA/Canada, News Release
DATE:   May 7, 2003

------------------ archive: http://www.gene.ch/genet.html ------------------


Europe's (and the World's) Big Soy Berger: Patently Wrong!

After delays, denial, and double standards, Monsanto maintains unjust
monopoly on major food crop. Time to talk to the cooks about a new recipe?

In a jaw-dropping affirmation of Monsanto's monopoly control over
commodity crops, one of the world's most notorious patents for
genetically engineered crops was yesterday upheld by the European Patent
Office (EPO) in Munich - this despite a nine year battle by civil society
(and industry) to have it revoked. European Patent No. 301,749, granted
in March 1994, is an exceptionally broad "species patent" which grants
gene giant Monsanto exclusive monopoly over all forms of genetically
engineered soybean varieties and seeds - irrespective of the genes used
or the transformation technique employed. The patent, attacked as immoral
and technically invalid by food security advocates worldwide, was
vigorously opposed by Monsanto itself until they purchased the original
patent holder (Agracetus) in 1996, and switched sides to make the soybean
species patent a major ingredient in its global recipe for crop monopoly.

Backburner: The case simmered on the EPO's backburner for an astonishing
nine years before reaching the patent tribunal in Munich yesterday. The
EPO took only ten hours (including coffee and cake breaks) to hear oral
arguments and uphold Monsanto's monopoly. Monsanto did surrender one
unsustainable claim in the patent (claim no. 25), which sought control
beyond soybeans to other plants as well.

ETC Group, who maintained its opposition to the patent since first
uncovering it nearly a decade ago, were present in Munich yesterday with
expert legal counsel, UK barrister Daniel Alexander and patent attorney
Tim Roberts. Other opponents included Greenpeace, activist Stefan Geene,
Syngenta and Pioneer Hi-Bred (a subsidiary of DuPont).

ETC Group and other opponents expressed bitter disappointment at the outcome.

Same old recipe: "Monsanto has made overtures in the media to reinvent
themselves as a gentler, humbler company," said Hope Shand, ETC Group
Research Director, "But their behavior in court showed that where it
matters, Monsanto is still aggressively pursuing monopolistic control by
any means available. Even more alarming is how readily the patent system
rewards such behavior, ignoring basic morality, and failing to encourage
socially beneficial innovation. When ETC Group first challenged this
patent we were primarily concerned about the threat to food security from
the Gene Giants - today, nine years later, we find ourselves equally
shocked and concerned about the threat to democracy from such an
unresponsive patent system. It portends much larger patent problems to
come with nanotechnology and other emerging technologies."

"This is a thoroughly bad decision," said patent attorney Tim Roberts.
"You would look far to find another patent in which such a small advance
has justified such an enormous claim. It seems to have been reached by
mechanically applying inappropriate precedent, while ignoring the
fundamental principle of the patent system - the balance of rights
between the innovator and society. If the Opposition Board's decision is
correct in law, then the law needs to be changed," said Roberts.

SARS bars and Geene engineering: Monsanto began the proceedings in Munich
with successful legal moves to deny some expert witnesses the right to
speak; including Dr. Suman Sahai of the Gene Campaign who had been
brought by Greenpeace from India to testify about the impact of the
patent on food security. Most amazingly, soybean experts from China, the
genetic homeland of soya, had already been barred from the EPO court
because of SARS fears. Monsanto then proposed to the tribunal that ETC
Group and long-time German campaigner Stefan Geene be disqualified from
the hearing, claiming that Geene, despite being present in the courtroom,
was a 'fictitious person'. Although Monsanto's request was denied, it set
the tone for its strategy throughout the day. Debate on ethical questions
was largely marginalised by Monsanto and an unresponsive Tribunal.

Secret Recipe: Perhaps most astonishing was Monsanto's legal maneuvering
to sidestep its own evidence. In 1994 Monsanto gave unambiguous evidence
in an opposition statement requesting that the patent be revoked. One of
Monsanto's top scientists testified in 1994 that the genetic engineering
process described in the patent was insufficient to allow someone skilled
in the science to replicate the procedure - a necessary criterion for
patentability. Nevertheless Monsanto's lawyers successfully argued that
the company should be allowed monopoly over any genetically engineered
soybean seed and variety obtained through any and all modification processes.

Let them eat cake? "It's a bit like publishing a badly written cake
recipe and then claiming ownership of any cakes baked by anybody using
any recipe any time in the future," explained Jim Thomas, of ETC Group's
Oxford office. "In fact, since acquiring Agracetus, Monsanto has already
leveraged this patent as part of their strategy to grab as much of the
cake as they can - seeking to control one of the world's most important
food crops. Monsanto now controls 100% of the world's genetically
engineered soybeans covering 36.5 million hectares in 2002 - that's over
half of the world's total soybean area. It's hard to imagine a more
blatant and dangerous monopoly."

Soy Berger King: According to Dr. Christoph Then, patent expert for
Greenpeace, "This case is a clear signal that the European Patent
Directive should be revoked. Europe needs new patent legislation that
expressly prohibits patents on life." Dr. Then and Stefan Geene
represented Greenpeace at the EPO tribunal yesterday.

Matter Monopolies: ETC Group also regards the maintenance of this patent
as a dangerous precedent for other broad claims on new emerging
technologies, in particular nanotechnology - the atomic manipulation of
matter to create new molecular forms. "This broad patent on Soybeans was
allowed precisely because aggressive corporations and lax governments
were pushing the boundaries in the early days of biotech, allowing
exclusive monopoly patents on all biological products and processes,"
explained Shand. "Today, corporations are grabbing nano-patents on
molecular products and processes, even the chemical elements that make up
all of nature. With nanotech patents, 'Matter Moguls' threaten to control
the fundamental building blocks of nature. "

Recipe change: "We fear that the EPO decision on Monsanto's soybean
patent gives comfort to those who want to establish ever wider legal
claims - including matter monopolies," emphasized Jim Thomas. "Monsanto
may have won an entire species but others are seeking to monopolise
entire elements of nature. Atomic-level manufacturing provides new
opportunities for sweeping monopoly control over both living and non-
living matter." With technologies converging at the nanoscale, ETC Group
warns that efforts to oppose intellectual monopolies must not be limited
to campaigns against the patenting of life. This issue will be discussed
at an upcoming seminar for policy makers, civil society and the media in
the European Parliament in Brussels on June 11th. "If the recipe is this
bad we'll take it back to the cooks," Thomas concludes.

Seminar in European Parliament: Together with the European Greens, The
Ecologist, Greenpeace, The Dag Hammarskj^ld Foundation, Genewatch UK,
Clean Production Action and a cross-party group of MEP's, ETC Group will
hold a seminar on nanotechnology in the European Parliament in Brussels
on June 11, 2003. Led by international experts, the seminar will look at
both the issues related to nanotech and intellectual property as well as
societal and safety questions with a view to consider appropriate steps
for government regulation. Speakers include physicist Dr. Vandana Shiva
and toxicologist Dr. Vyvyan Howard. The seminar will be followed on June
12 by a discussion among civil society organisations in Europe on
strategies to address the issues involved in nanotechnology. For further
information please see ETC Group's website: www.etcgroup.org or contact
jim@etcgroup.org.

Note to editors: Although the EPO tribunal decisively ruled in favour of
Monsanto, the panel will not release its written judgment for several
more weeks.

For further information:
Pat Mooney, ETC Group (Canada) +1 204 4535259
Jim Thomas, ETC Group (UK) jim@etcgroup.org +44 (0) 1865 207818
or Mobile +44 (0) 7752 106806
Hope Shand, ETC Group (USA) hope@etcgroup.org +1 919 9605223
Silvia Ribeiro, ETC Group (Mexico) silvia@etcgroup.org +52 55 55 632 664

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. www.etcgroup.org. 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 www.cbdcprogram.org.