Saskatchewan, Canada, April 8, 2004:
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
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
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
© Paul Beingessner, email@example.com
. The author is a columnist, transportation consultant and
third-generation farmer in Truax, Saskatchewan.