Wednesday, May 27, 2009

Beware, saving seeds may soon be outlawed by Devinder Sharma

If you are a farmer, beware. Your right to save seed and replant it the next year will soon be taken away. It has happened in the United States, which officially does not bar farmers from saving seed, but unofficially does nothing to safegyuard Farmer's Right over his seed. In fact, in the days to come the US is going to witness a test case that will, if it goes the industry way, take away farmer's right to save seed by indirectly penalising him for not paying the 'technology fee' or royalty.

The lawsuit that is coming up for full trial at St. Louis, which also happens to be Monsanto's headquarters, on Aug 10, 2009, will have a bearing not only on the American farmers but farmers elsewhere, including India. So far, Indian seed laws have allowed farmers to save, sell and exchange seed unless it is branded, this right will sooner or later be taken away. The Seed Bill 2004, which is still pending before Parliament, in a way is a step forward. The seed industry is not taking it lying down. There is tremendous pressure to disband the Plant Varieties Protection and Farmers Rights Authority (PVPFRA) or make it useless.

At the same time, the recent amendments to the patents law allows for biotech patents, which makes the PVPFRA redundant. I have always been saying that policy makers and civil society activists in India must learn to look ahead while formulating laws. Let me illustrate. India is one of the places of origins of rice. We have thousands of rice strains, despite the erosion of genetic diversity witnessed especially over the past few decades. We can list these varieties under the PVPFRA and feel that our rice is 'protected'. But with Syngenta seeking patents over 30,000 genes of rice (from a total of 37,500 genes rice has), the control over rice plant goes into the hands of th Swiss seed company.

What is the use of 'protecting' rice varieties under PVPFRA? Shouldn't our lawmakers looked ahead, and prepared the law/Act in the light of the developments taking place in genomic research and the changing IPR regime?

Anyway, we will talk about this in subsequent blogs. Let us first try to understand what is at stake in the lawsuit that is coming up for full trial in America. This commentary (excerpts of which are being published here) has been provided by James M. Harrington, founder of Harrington Practice, a patent litigation law firm based in Charlotte, North Carolina, USA.

Mon May 25, 2009 at 09:14:33 PM PDT

Near the sleepy North Carolina town of Harmony, a mile or two off I-77 about an hour's drive north of Charlotte, Robert Trivette farms about 200 acres of soybeans. Small by modern standards, this farm has been his for some four decades, and it has provided him and his wife, Jennifer, with enough to live on, to raise a family and to survive but not to thrive.

Bob is at an age, 60, when most men are beginning to dream of retirement. Like most farmers, he worries about drought, about the pernicious pigweed that threatens the soy crop, about pests, and about whether his ancient tractor and combine will make it through another season. But these days, Bob is worried about an enemy of an altogether different character. After all, he's the defendant in a major lawsuit over his farming practices--a lawsuit that threatens his way of life.

In that suit, our law firm is defending Bob Trivette pro bono publico--"for the public good," meaning free of charge--and we need your financial help. This is the first in a series of diaries that will introduce the public to Bob Trivette, a man who is fighting for all of us.

Regular readers of this (HarringtonPractice's diary) and other liberal websites know Bob Trivette's enemy all too well. He's fighting against the Monsanto Company. And Monsanto is spending all that it can to destroy Bob, in order to make an example of him, and ultimately in the pursuit of ever-expanding hegemony over the world's food supply.

About ten years ago, Robert Trivette decided to upgrade a portion of his soybean crop, about 20 acres' worth, to the latest thing in farming: Monsanto's exciting new Roundup Ready® soybean technology. Monsanto promised a revolution in farming. Rather than fighting weeds with specific, often toxic and highly regulated herbicides, Monsanto's genetically engineered seeds grew into plants that would resist Monsanto's broad-spectrum herbicide, glyphosate, which it sold under the name Roundup.

Spraying his crops with Roundup would kill the weeds and leave the healthy soybean plants behind. Although Roundup Ready seed was more expensive than conventional seed, Monsanto promised greater yields, less chemical expense, and an easier time in the fields. But these advances, to the extent that they came about at all, came at a heavy price.

Monsanto's innovations weren't limited to the laboratory, of course. Along with Roundup Ready technology, Monsanto instituted a unique new scheme for selling crop seeds. Instead of saving a small portion of one year's crop for replanting next year, as they had done for thousands of years, farmers would be required to buy new original seed stock from Monsanto each year.

In order to enforce this requirement, Monsanto required each farmer to sign a "technology agreement," which prohibits the farmer from using the seeds he bought for more than a single crop, from saving any of that crop for replanting the next year, and from selling the original seeds or the crop to any other farmer. The farmer is required to submit to the jurisdiction of Monsanto's home courts in St. Louis for any disputes. Some later agreements have required the farmer to allow Monsanto's investigators to come on his property and test his crops at any time.

If the farmer violated the agreement, he would have to pay a huge penalty--in some cases up to 20 times the price of a bag of soybeans for each bag he saved. Although the courts have struck that penalty down, they regularly impose penalties of more than $100 per bag for a commodity that usually costs $30-$35 per bag. Monsanto's licensing regime requires the cooperation of farmers. Since not every farm can be inspected,

Monsanto coerces that cooperation by coming down hard on those farmers it believes skirt its rules. It maintains a hotline for anonymous reporting of violators. It sends out teams of investigators, who surreptitiously surveil farmers in their daily work, correlating sales records and farm sizes, showing up unannounced and threatening fines and criminal charges against their targets. They demand an extortive payment from every farmer they "catch," promising that consulting with a lawyer or challenging Monsanto's authority will result in much greater pain and suffering.

In that respect, Monsanto is little better than a criminal gang--better only because Monsanto, at least, has the authority under federal law to enforce its patent rights...but the Corleones and the Sopranos never had the assistance of the federal courts, either. In reality, Monsanto cares very little about the truth in pursuit of its aims.

In 2006, Monsanto's investigators approached Bob Trivette at his farm. For about an hour, they quizzed him about his farming practices and his use of Roundup Ready. They decided he was guilty of patent infringement, and they offered him a choice: pay them $100 for every bag of seed they thought he saved, or Monsanto will sue him and make it five times worse. Oh, and if he contacted a lawyer, the deal was off.

For Bob, based on the investigators' "calculations," that price would have been about two years' worth of his farming income. He couldn't pay it. So when Monsanto sued him in early 2007, he turned to our law firm for help.

For the last two years, our law firm has been fighting Monsanto on Bob Trivette's behalf, and we have done so, to date, without charging him one penny for our services. Our firm is small--only three attorneys and one support staff member--and taking on a patent infringement case, some of the most complicated litigation around, for no money at all, was a serious commitment of a major portion of our firm's resources.

We took on his case because of our sympathy for him as an individual, but we are fighting today not just for Bob, but for all farmers, and by extension, for all of us. As a patent attorney, I believe that the limited monopolies granted by patents foster innovation by rewarding it financially. But Monsanto's tactics have strayed far from the kinds of healthy, competitive practices our economy needs, into territory previously reserved for mobsters and racketeers.

We head to a full trial in St. Louis on August 10, 2009, and your help is urgently needed to make victory possible. Although we will take no professional fees for any part of our representation of Bob Trivette, we need to pay the out-of-pocket expenses of our trial team for the two weeks the trial is expected to take.

For more background on Monsanto's business practices, we recommend reading Don Barlett and James Steele's excellent article in Vanity Fair's May 2008 issue, "Monsanto's Harvest of Fear."

Posted By Devinder Sharma to Ground Reality at 5/28/2009 06:50:00 AM

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