Hope Not Hype - Third World Network

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Appendix Four: Legal Remedies: Case Studies 159 of other lawsuits were filed over ownership of cry-based transgenes. In parallel, there is similar legal wrangling over herbicide tolerance transgenes (ISB News, 2005). These and other (e.g., Jones, 2006) cases illustrate the seriousness of intellectual property issues among developers. The issues are so central, there is speculation that they are the primary reason for mergers in an industry that is decreasing its number of primary players (Thomas, 2005). Companies with complementary intellectual property reduce the complexity of the patent thicket by collapsing the number of competing companies. The cases also illustrate the vast legal resources of the industry. Monsanto vs. US farmers A report published by the Center for Food Safety (CFS) in 2005 chronicled the impact of material transfer agreements (MTAs) between Monsanto and US farmers. According to CFS, “[f]armers who discontinue their use of Monsanto’s genetically engineered seed face patent infringement allegations in the event that some of that seed from the previous year sprouts ‘volunteers’ in fields converted to conventional varieties” (Center for Food Safety, 2005, p. 20). This liability may extend also to farmers who purposefully save seed (for update, see Barlett and Steele, 2008). The MTA between Monsanto and the grower states that the grower accepts the terms of the licensing agreement “by signing this Agreement and/or opening a bag of seed containing Monsanto Technology”. 1 If Monsanto considers that a grower has infringed on its patents, the grower may be liable for restitution including Monsanto’s court and legal fees. Growers are required to answer claims exclusively in the US District Court of Missouri or the Circuit Court of the County of St. Louis, near Monsanto headquarters. CFS reports that Monsanto has 75 employees and devotes US$10 million annually for the purpose of investigating farmers, including its former customers. CFS provided evidence of between 475-600 investigations by Monsanto annually, with settlements estimated in the millions of dollars. CFS found that Monsanto has filed 90 lawsuits across 25 US states. The largest judgment in favour of Monsanto is reportedly just over US$3 million, with a cumulative total of US$15 million (Center for Food Safety, 2005). Monsanto reportedly estimates that without MTAs, as much as a quarter of their royalties on Roundup Ready crops would be lost to unregistered use and with the MTAs, they estimate losses of 10% (Smyth et al., 2002). 1 2006 Monsanto Technology/Stewardship Agreement
160 Hope Not Hype References Barlett, D. L. and Steele, J. B. (2008). Monsanto’s Harvest of Fear. Vanity Fair, May. Center for Food Safety (2005). Monsanto vs. U.S. Farmers. Furst, I. (1999). Swiss Soiled Seed Prompts Tolerance Question. Nat. Biotechnol. 17, 629. ISB News (2005). http://www.isb.vt.edu/news/2005/news05.feb.html#feb0504. Date of access: 1 June 2008. Jones, P. (2006). Syngenta scores in patent skirmish. Nat. Biotechnol. 24, 733. Kershen, D. L. (2004). Legal liability issues in agricultural biotechnology. Crop Sci. 44. Lin, W., Price, G. K. and Allen, E. (2001). StarLink: Impacts on the US corn market and world trade. In Feed Situation and Outlook Yearbook/FDS-2001, M. R. Evans, ed. (Economic Research Service/USDA), pp. 46-56. Smyth, S., Khachatourians, G. G. and Phillips, P. W. B. (2002). Liabilities and economics of transgenic crops. Nat. Biotechnol. 20, 537-541. Thomas, Z. (2005). Agricultural biotechnology and proprietary rights. Challenges and policy options. J. World Intel. Prop. 8, 711-734.
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62 Hope Not Hype Tabashnik, B. E.,
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