Fighting Biopiracy

OTTAWA: In April 1999 Larry Proctor, a United States citizen and owner of a seed company, won a patent at the US Patent and Trademark Office (USPTO), claiming a Mexican yellow bean. The patent conferred Proctor exclusive rights over a bean variety he called “Enola.” That decision is one of the most outrageous examples of biopiracy in the history of intellectual property systems. The bean for which Proctor was granted a patent is a farmers’ variety, originally from Mexico and in the public domain for centuries. The bean is consumed throughout Mexico and by Mexicans and Mexican-Americans in the US who know it by the names Mayocoba, Canario, or Peruano. Although the bean variety existed in publicly available seed collections, it took ten years, hundreds of thousands of dollars, massive protest by farmers and civil society, the intervention of international agencies, and five consecutive legal decisions before the USPTO finally annulled the patent in July 2009. By then, Proctor had exercised a complete monopoly over the production, distribution, and marketing of the bean for more than half of the patent’s lifespan. The story began in 1994, when Proctor purchased a bag of beans in Mexico. He planted the beans, selected seeds from the same plants, and planted them again, repeating the procedure two more times. In late 1996, after barely two years, he stated that he had invented a “unique” variety, and applied for a patent. As soon as Proctor was awarded the patent, he sued two importers of the yellow beans, demanding that they pay royalties. Although the importers knew that Proctor’s invention was ludicrous (because they had been importing the bean from Mexico for years), they had no choice but to accept the patent’s legality, causing 22,000 Mexican farmers and their families to lose 90% of their export incomes in just the first year.

In January 2000, the Action Group on Erosion, Technology and Concentration (ETC Group, then known as RAFI) published the first denunciation of the Enola patent as technically invalid and morally unacceptable. To obtain a patent, an applicant must demonstrate that an invention meets three criteria: newness, non-obviousness (that there is an inventive step), and utility (the invention does what it claims to do). In the case of the Enola bean, there was nothing at all new: the yellow bean is the result of centuries of collective work and ingenuity on the part of Mexican farmers and indigenous peoples. Moreover, the bean was incorporated into public collections held by INIFAP, the Mexican national agricultural research institute. ETC Group took the case to the Centre for Tropical Agriculture (CIAT) in Cali, Colombia. CIAT is one of the international centres of the Consultative Group on International Agricultural Research (CGIAR). The CGIAR system maintains more than 600,000 samples of crop varieties in gene banks, mostly collected from peasant fields. Acknowledging this, CGIAR signed a Trust Agreement with the United Nations Food and Agriculture Organisation (FAO) in 1994, pledging to keep the seeds in their collections free of any intellectual property claims. Joachim Voss, then CIAT’s director, confirmed that the yellow beans were present in CIAT’s gene bank, and that they had originated in Mexico. At the end of 2000, CIAT, supported by the FAO, requested that the USPTO re-examine the patent. Geneticists then performed genetic fingerprinting on the yellow beans, and concluded that Proctor’s Enola bean was identical to the Mexican beans covered by the Trust Agreement. Meanwhile, in 2001, taking advantage of the USPTO’s slow response, Proctor sued 16 small seed companies in Colorado for patent-infringement.

Only in December 2003 did the USPTO announce its first “non-final” rejection of the patent. Proctor appealed, and the USPTO issues its final rejection of the patent in April 2005.

But that was not the end of the Enola bean issue. Proctor requested that the patent examination be continued, submitting additional patent claims and even changing his lawyers several times (allowing more bureaucratic delay). In total, the patent was rejected and appealed four times within a decade, until the US Court of Appeals rejected it for the fifth time this summer.

For more than a decade, a single patent owner disrupted the bean market in the US and Mexico. Importers stopped importing not only the yellow bean, but also other Mexican beans, fearing lawsuits. Although the patent was eventually rescinded, the Enola case shows how the intellectual property system facilitates the monopolisation of public and collective resources, favouring those who can pay expensive lawyers’ fees. The Enola patent was wrong from the outset, yet it remained enforceable for half its life, despite

the active efforts of international

institutions, governments, and civil-society organisations. It may be tempting to dismiss the Enola patent as an

aberration, but there are hundreds of examples of such biopiracy.

Mexican beans, South Asian basmati rice, Bolivian quinoa, Amazonian ayahuasca, Indian chickpeas, Peruvian nuña beans, Andean maca - all have been subject to predatory intellectual property claims.

The Enola controversy is a stark illustration of the danger of patenting life, and the power of patents to block agricultural imports, disrupt or destroy developing countries’ export markets, hijack staple food crops that are the cultural heritage of millennia, plunder collective knowledge, and threaten food security.

The Enola case demonstrates that being right is not enough: small farmers, indigenous people, and the poor can’t out-last a decade of lawsuits and monopoly. Undoubtedly, international institutions and countries in the global South have far more urgent goals than to spend resources suing greedy companies. It is high time to question the very existence of an intellectual property system that privileges monopoly ownership over the common good.

— Silvia Ribeiro and Kathy Jo Wetter are researchers with Action Group on Erosion, Technology and Concentration (ETC Group).

Copyright: Project Syndicate, 2009.