by: Jane Roberts
For the second time in five months, the U.S. Patent and Trademark Office has rejected patents key to Monsanto’s dominance in bioengineered seed, casting suspicion on its science and weakening the argument that helped the company prevail in dozens of lawsuits against farmers.
Tuesday, the Public Patent Foundation said that the U.S. patent office sided with it in its case against Monsanto, saying at least four patents should not have been granted because the gene technology was either not new or so obvious it wouldn’t require patenting.
“This is a significant decision,” said Daniel Ravicher, executive director of the Washington nonprofit that is focused on rooting out undeserved patents and unsound patent policy. “Monsanto would be much more pleased if the patent office had found the patents were valid.
“Instead, it found that every single claim is undeserved and invalid,” he said. “It couldn’t be going better for our challenge.”
Monsanto dismissed the findings, saying rejection is a standard part of any patent re-examination process and that it plans to ask for a reconsideration.
“Our commercial products are covered by multiple patents that are not the subject of this re-examination,” said Lee Quarles, spokesman. “This poses no threat to our business or our ability to deliver innovative technologies to farmers.”
Opponents disagree, saying Monsanto has profited handsomely because the patents allow it to charge inflated prices for seed. They also say Monsanto has used its dominance to bully farmers into submission through a series of high-profile lawsuits that made examples of people who saved the patented seed for replanting.
“Monsanto is the only company I know of that is suing individual farmers and putting them out of business,” Ravicher said.
Monsanto has 60 days to ask for a reconsideration or reduce the breadth of the patents.
The patents in question are part of its Roundup Ready arsenal, a series of genes it patented to make crops immune to the herbicide.
With the modified seed, farmers can spray Roundup over their crops and kill the weeds but not the crop.
The American Seed Trade Association says companies have every right to defend intellectual property. In this case, it’s the brainpower that helps farmers produce better yields or provides solutions to reduce the impact of factors they cannot control, including drought.
Monsanto says hundreds of thousands of farmers across the globe rely on the company for breakthroughs that help reduce the cost of raising a crop and the deleterious affects of chemicals on the environment.
“Intellectual property is important because it encourages continuous innovation in an industry, regardless if you’re on the farm or reading the newspaper or sitting at your computer,” Quarles said.
Monsanto introduced the trait first in cotton in 1997. By 2000, a majority of cotton farmers in the Mid-South were using its genetically altered seed because it vastly reduced fuel and the use of other chemicals. It also saved them time and reduced soil compaction, making the choice hardly a choice at all.
The lawsuits followed shortly later, including cases against Mitchell Scruggs, a farmer in Saltillo, Miss., and Homan McFarling, who farms near Pontotoc, Miss.
Both were charged with saving the patented seed for resale or use on their own farms.
With the patents now in question, attorney Jim Waide of Waide & Associates in Tupelo, Miss., expects the outcomes could be very different.
“Logically, I would think the judgment is void if the patent is void,” he said after talking with his clients.
In the midst of the Scruggs case, Monsanto withdrew patent No. 435 because it was generating public scrutiny, he said, and began relying more on No. 605. That patent is now among the four rejected patents, although Monsanto did alter No. 435 enough to get reapproved.
The Public Patent Foundation mounted its campaign against the company last fall, it said, after watching farmers across the country lose suits.
In early March, it celebrated its first victory when the U.S. patent office rejected the first patent. Other rejections followed May 31, June 4 and July 17.
“This poses a real serious challenge to Monsanto’s intellectual property position on Roundup Ready crops,” said Bill Freese, science policy analyst at the Center for Food Safety in Washington.
He says the standards for issuing patents need stricter scrutiny, especially in molecular biology where the rush to capitalize on genetic breakthroughs leaves companies rushing to patent whole gene sequences before they know how useful they are.
The problem, he said, is that it takes a lot of resources to mount a credible challenge because the patents are extremely technical.
“We need folks to become aware that patents are being granted that are illegitimate,” Freese said. “And how many more does Monsanto hold?”