GENET archive


PATENTS: Monsanto's soybean monopoly challenged at the EuropeanPatent Office in Munich

                                 PART I
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TITLE:  Monsanto's soybean monopoly challenged in Munich
SOURCE: ETC Group, Canada
AUTHOR: Press Release
DATE:   30.04.2007

Monsanto's soybean monopoly challenged in Munich
European Patent Office will decide fate of species-wide soybean patent
on 3 May 2007

On 3 May 2007 ETC Group (a Canadian-based international civil society
organization - formerly known as RAFI) together with "No Patents on
Life!" and Greenpeace will continue a 13-year legal battle against one
of biotech's most notorious patents. At an appeal hearing at the
European Patent Office in Munich, civil society organizations will argue
that Monsanto's patent (European Patent No. 301-749) on all genetically
engineered soybeans - unprecedented in its broad scope - must be
revoked. "No patent symbolizes the brokenness of the patent system
better than Monsanto's species-wide patent on genetically engineered
soybeans," said Hope Shand of ETC Group. "Monsanto's patent is both
technically flawed and morally unacceptable," said Shand.

Critics refer to EP 301-749 as a "species-wide" patent because its
claims extend to all biotech soybean seeds -- irrespective of the genes
used or the genetic engineering technique employed. The patent,
initially awarded to US-based biotech company Agracetus in 1994, was
acquired by Monsanto when it purchased Agracetus in 1996.

According to industry sources, Monsanto's biotech seeds and traits
accounted for almost 90% of the worldwide area planted to genetically
modified soybean seeds in 2005. What's more, genetically engineered
soybeans reportedly account for almost 60% of the global soybean area -
an increasingly dominant share of one of the world's most important food
and commodity crops.

"The statistics speak for themselves," said Greenpeace's patent expert
Dr. Christoph Then. "A single company has been awarded sweeping monopoly
control over one of the world's most important food crops."

ETC Group's Shand asserts, "Monsanto's patent is undermining the
economic security of farming communities and jeopardizing access to
seeds - the first link in the food chain. Whoever controls the seeds
controls the food supply." According to a ranking of the world's largest
seed companies released today by ETC Group, Monsanto is the world's
largest seed company, with over 20% of the global proprietary seed
market. ETC Group's new ranking of the top 10 seed companies is
available here:

The livelihoods of Argentina's soybean farmers are directly affected by
Monsanto's species-wide patent because the company is using its
exclusive monopoly to deny Argentine soybeans from entering European
markets. Monsanto alleges that Argentine farmers aren't paying royalties
to Monsanto for using the company's patented soybean seeds.

Critics point out that Monsanto's defense of its patent is not
surprising, but it is hugely hypocritical. Before Monsanto acquired the
patent in 1996, the company vigorously opposed the patent - which was
then owned by Agracetus. In 1994 Monsanto submitted an exhaustive, 292-
page opposition statement to the EPO 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 after Monsanto acquired Agracetus in April 1996,
Monsanto withdrew its challenge, reversed its position and announced
that it would defend its newly acquired patent!

In 2003 - more than nine years after the patent was first awarded and
legally challenged - an EPO patent tribunal heard legal arguments
against the notorious patent. Opponents were shocked when EPO upheld
Monsanto's monopoly in 2003. Today, nearly two-thirds of the patent's 20-
year term has expired. On 3 May 2007 EPO's appeal tribunal will have one
last chance to revoke Monsanto's unjust monopoly on one of the world's
major food crops.

"If EPO fails to revoke the patent after 13 years of bureaucratic delays
it will simply confirm that corporations can use unjust patents to
monopolize markets, destroy competition and jeopardize worldwide
struggles for food sovereignty," said Hope Shand of ETC Group.

"Case-by-case legal battles against immoral and unjust patents is an
unworkable strategy - Europe needs new patent legislation that expressly
prohibits patents on life," said Ruth Tippe of "No patents on Life!"

For more information contact:
Hope Shand or Kathy Jo Wetter, ETC Group
Tel: +1 919 960-5223
Jim Thomas, ETC Group
Tel: +1 514 516-5759
Dr. Ruth Tippe, "No patents on Life", Germany
Tel: 0049 1728963858
Dr. Christoph Then, Greenpeace, Germany
Tel: 0049 1718780832

ETC Group's 2006 ranking of the world's top 10 seed companies:
For more information about international campaign against patents on seeds:

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                                 PART II
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TITLE:  The world's top 10 seed companies - 2006
SOURCE: ETC Group, Canada
AUTHOR: Press Release
DATE:   30.04.2007

The world's top 10 seed companies - 2006
Based on 2006 seed revenues

Company	2006 seed sales
US $ millions
1. Monsanto (US)	$4,028
2. Dupont (US)	$2,781
3. Syngenta (Switzerland)	$1,743
4. Groupe Limagrain (France)	$1,035
5. Land O' Lakes (US)	$756
6. KWS AG (Germany)	$615
7. Bayer Crop Science (Germany)	$430
8. Delta & Pine Land (US) (acquisition by Monsanto pending)	$418
9. Sakata (Japan)	$401
10. DLF-Trifolium (Denmark)	$352
Source: ETC Group

Based on 2006 revenues, the top 10 seed corporations account for 55% of
the commercial seed market worldwide.

Concentration Trend Continues: According to estimates provided by
industry analysts, Context Network, the value of the overall commercial
seed market was $22,900 million in 2006 (includes seeds purchased from
public breeding programs).1 By contrast, just two years ago, ETC Group
reported that the top 10 accounted for 49% of the worldwide market. In
1996 - one decade ago - the top 10 seed companies accounted for 37% of
the worldwide market - and Monsanto did not even appear on the list.

The market share of the top 10 seed companies is even greater when
looking at the proprietary (patented?) seed market. According to Context
Network, the global proprietary seed market was worth $19,600 million in 2006.

- In 2006, the top 10 companies account for $12,559 million - or 64% of
the total proprietary seed market.
- Monsanto - the world's largest seed company - accounts for more than
one-fifth of the global proprietary seed market.
- The top 3 companies - Monsanto, Dupont and Syngenta - account for
$8,552 million - or 44% of the total proprietary seed market.
- The top 4 companies account for $9,587 million - or almost half (49%)
- of the total proprietary seed market.

1 Personal communication with the Context Network.

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                                 PART III
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TITLE:  Rulings weaken patents' power
SOURCE: The Washington Post, USA
AUTHOR: Robert Barnes & Alan Sipress

DATE:   01.05.2007

Rulings weaken patents' power
High Court decides on two key cases

The Supreme Court concluded a series of cases yesterday that weaken the
protection given to patent holders, making it more difficult to get a
patent and easier to challenge existing ones.

Patent experts said one of two cases decided yesterday -- KSR
International v. Teleflex-- is the court's furthest-reaching ruling in
the field for decades. The decision sends a clear message that the U.S.
Patent and Trademark Office and lower courts must be more open in
considering whether inventions are "obvious," a common ground for
denying an application.

"Granting patent protection to advances that would occur in the ordinary
course without real innovation retards progress and may, in the case of
patents combining previously known elements, deprive prior inventions of
their value or utility," Justice Anthony M. Kennedy wrote for a
unanimous court.

In a separate case, the court ruled yesterday that Microsoft did not
violate an AT&T patent when its Windows software was installed on
computers manufactured overseas.

"The presumption that United State law governs domestically but does not
rule the world applies with particular force in patent law," Justice
Ruth Bader Ginsburg wrote in the 7 to 1 decision. Justice John Paul
Stevens dissented, and Chief Justice John G. Roberts Jr. recused himself
from the case.

Although the cases -- along with the earlier-decided MedImmune v.
Genentech-- concerned different aspects of the law, experts said the
cases collectively show a Supreme Court united in its belief that patent
holders have received too much protection in the past.

"We now have a string of decisions that say the Supreme Court thinks we
have too many patents and it's too hard to invalidate them," said Thomas
C. Goldstein, a lawyer for Teleflex. "It's hard to miss that message."

The KSR and MedImmune cases together mean much less certainty for
holders of thousands of existing patents, said John R. Thomas, a
Georgetown University law professor who specializes in intellectual
property. "The bottom-line effect is that interested parties have a
greater ability to challenge patents and a greater possibility of prevailing."

The disputed patent in the KSR case was held by Teleflex and involved an
adjustable gas pedal that combined two established elements, the pedal
and an electronic sensor. KSR, a Canadian company, challenged the
patent, and a lower court agreed.

But the U.S. Court of Appeals for the Federal Circuit, which was
established to specialize in patent cases, said the combination was not
obvious under its test that looked at whether some "teaching, suggestion
or motivation" had anticipated it.

Kennedy said the appeals court's test was helpful but too rigidly applied.

Thomas said the court's ruling makes many existing patents vulnerable to
court challenge because they were issued according to a standard the
justices have now rejected. The KSR and MedImmune cases, which allowed
companies that license technology to challenge the validity of the
underlying patent, mean far more uncertainty for patent holders.

In particular, he predicted that generic drug makers would increasingly
sue pharmaceutical companies.

Though the court has heard a series of patent disputes during the past
two years, the KSR case is unique because it addresses the nature of
patents themselves rather than questions about how patent disputes are
litigated and resolved.

"KSR had to do with the fundamental issue that affects all patents:
whether a patent should be issued in the first place. That touches all
patents," said George Best, a patent expert and partner at the Foley &
Lardner law firm who did not represent the parties involved in the three

The case could "change the rules of the game from the way they've been
for the last 20 years or so," he said, adding that the Supreme Court was
not trying to set new law but rather saw its task as reining in the
lower appeals court. Other patent lawyers and specialists also called
the rulings yesterday the latest rebuke to the federal circuit.

Though the Supreme Court's decision in KSR was focused on the specific
case -- "the most detailed technical discussion that's come out of the
Supreme Court since the 19th century," according to Thomas -- the
justices were intent on sending a broader message.

Microsoft v. AT&T centered on whether Microsoft's liability for
infringing AT&T's patent on a speech processor extended to computers
manufactured overseas and loaded with Windows software copied abroad.
"Our answer is no," Ginsburg wrote.

She said that because the master disk Microsoft sends from the United
States is never installed on any of the foreign-made computers, the law
prohibiting the exportation of patented "components" has not been violated.

The court's decisions come as an effort to retool the patent system is
gaining momentum on Capitol Hill. Members of Congress are grappling with
some of the same basic issues about patent rights that the justices
faced in these two cases, in particular the question of whether the
protection for patents has grown too strong and the penalty for
violating them too costly.

As part of the overhaul drive, many high-tech companies have been urging
Congress to make clear that U.S. patent law cannot be applied to
activities outside the country. But the court's decision seems to settle that.

"Today's Supreme Court decision is important for the entire information
technology industry, adding clarity and balance to our patent system,"
said Brad Smith, Microsoft's general counsel.

Though the Microsoft case turned on a relatively narrow legal issue,
Smith said the ruling was crucial for the future because it could affect
the country's most innovative industries, in particular the computer and
biotechnology sectors.

Stifel Nicolaus, a research firm specializing in technology and
telecommunications, said in a report yesterday that a ruling in favor of
AT&T could have caused far-reaching harm to other companies.

"The Federal Circuit decision would create massive liability for high-
tech firms operating in the United States, including biotech,
semiconductor, software and Internet companies that rely on information
created in the United States that is transferred abroad by computer
code," the research firm wrote.

Patent experts agreed that the ruling also could be relevant to biotech
firms, such as those producing genetically engineered cell lines that
are sent overseas to be converted into proteins for commercial use.

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European NGO Network on Genetic Engineering

Hartmut MEYER (Mr)

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