Monsanto loses claims for Roundup Ready genes

Author: Jane Roberts
Publication: commercialappeal.com, via AGBIOS
Date: Thursday, July 26, 2007

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?"