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Patent laws sometimes patently absurd

by Paul Beingessner
Canadian farmer, writer

(Tuesday, March 23, 2004 -- CropChoice guest commentary) -- Farmers didn't know or care a lot about patents before the Percy Schmeiser case came along. That the Saskatchewan farmer ran afoul of Monsanto's patent on Roundup Ready canola is not unusual. Monsanto has accused farmers all over the world of violating its patents. What makes the Schmeiser case different is that he didn't capitulate like most others. He has fought the case all the way to Canada'a Supreme Court, where a decision is now pending.

A lot of attention has been brought to the area of patents by this case and a lot of light and heat has emanated from the discussion. Patents are part of a larger topic known as Intellectual Property Rights (IPR). IPRs include patents, trademarks, copyrights and regimes like Plant Breeders Rights.

Patents were a rather simple issue at one time, when they involved mostly mechanical inventions. Things got complicated in the latter part of the twentieth century when patents were broadened to include some living organisms and discoveries, rather than just inventions. A further complication came when patent offices began to make patents so broad they have become a barrier to further progress and research.

Patents came into being for a purpose that now has been circumvented. Patents were originally a tradeoff. Inventors were allowed to own knowledge about how to do something (an invention) and had to give up something in return. To get a patent, they had to reveal how they made the invention. This meant that after the patent expired, other people could take their work and build on it to make better inventions.

This model of patents did two things. It rewarded the inventor by allowing him to profit from his ownership of the invention. This had the effect of stimulating him to invent more things, and that was deemed to be good for society as a whole. It also made sure he could not keep the secret to himself. By having to describe his process, he made the knowledge public for others to build on. The patent model recognized that no inventor lives or works in a vacuum. All inventions are built on the accumulated knowledge of humans who have gone before.

Understanding all this is pretty important to sorting our way through the problems with the way we hand out patents now. Patents did not protect the work of the inventor in order to allow him to profit as an individual. They did so for the good of society - so he would invent more and so others would be able to build on his inventions.

Patents got messy when living things got to be patented. This is because living things have the habit, unlike machines, of reproducing spontaneously and acting independently. Patent law has yet to come to terms with this. In the Schmeiser case, the lower courts decided that Monsanto owns any Roundup Ready canola plant that is growing on your property, no matter how it got there. That you may not want it there doesn't matter. So patent law has yet to be updated to determine responsibility if an "invention" escapes. A lawsuit by organic farmers in Saskatchewan is pursuing that issue right now.

Patent offices also have broadened patents to an absurd extent. The European patent office gave Monsanto a patent over all genetically modified soybeans, no matter how the genetic modification is performed.

Patent offices also give great leeway to patent holders. The U.S. patent office gave Larry Proctor a patent on all yellow beans. The yellow bean he claims to have invented has been grown in Mexico for generations. Now, if anyone wants to grow, sell or import yellow beans into the U.S., they have to pay Larry or go to court to prove he is a bio-pirate, not an inventor.

The above two cases illustrate how broad patents can limit research. An even larger problem is the granting of patents on discoveries. When the human genome was decoded, researchers were patenting genes like crazy, even when they knew nothing about them. They didn't invent the genes, merely discovered them, but were allowed to patent them and hence control much about the gene's future use.

Corporations that hold patents also have found ways to get around the end of the life of a patent. In medicines, for example, they will patent a "new formulation" of the drug when the old patent runs out. Patent offices often don't check to see if it really is a new invention. Monsanto did a version of this when the patent on glyphosate (Roundup) ran out. It then applied for patents on all sorts of tank mixes of Roundup. If you want to tank mix Roundup, you can't use a generic (and cheaper) glyphosate. How does Monsanto get away with claiming to have invented a mixture?

Patent law in Canada will be reviewed in the near future and changes will be made. Farm groups and farmers must be part of that discussion. The implications are as huge as the issues themselves.

(c) Paul Beingessner (306) 868-4734 phone 868-2009 fax