navigating the patent maze

According to a USDA press release (PDF), the first genetically modified crop has been approved for domestic planting in Egypt. The crop is a pest-resistant corn variety - Aljeeb-YG- that was produced by crossing a Monsanto Corp. Bt-expressing corn variety (MON 810) with an Egyptian variety, called Ajeeb. A local seed company, Fine Seeds International, will be producing and selling the seed.

As with many instances of commercialization of GM-crops, the announcement of Aljeeb-YG led to mixed reactions within Egypt. As reported by Intellectual Property Watch, the debate appears to pit biological advantages (e.g., negligible insect infestation, increased yield, decreased use of chemical insecticides) against political and intellectual property issues. Sadly, IP Watch didn’t investigate any of the claims put forth by opponents, point out fallacies of these opinions, or explain the plant protection system in Egypt.

Egyptian law (PDF) does not allow patents to issue on plants but does provide protection for plant varieties. Articles 189 et seq. set out the requirements: “a variety shall be new, distinct, uniform, stable and shall be subject of a denomination”. Protection lasts 20 years for crops other than trees and vines and gives the owner the exclusive right to commercial exploitation. Third parties (e.g., farmers) are allowed “non-commercial activities and use of the result of propagation material, by farmers on their own holdings for private propagating purposes.” In other words, farmers may save seed to replant for their own consumption. This exception is sometimes called “farmers privilege”. In addition, third parties may use the protected variety in breeding, cross-breeding and selection for the “purpose of breeding new varieties.” Curiously, protection lapses if the protected variety is offered by the owner outside Egypt. Other provisions require disclosure of the genetic source relied on to develop the variety, and moreover, assurance that the breeder acquired that source by legal means under Egyptian law.

Against this background, let’s examine some of the comments reported by IP Watch.

“This means, said Tarek Saif, biotechnologist at Egypt’s National Institute of Oceanography and Fisheries, Egypt’s collaboration with Monsanto started with the word “partnership” to pave the way for public acceptance of GM plant and ended with “ownership” for Monsanto. “How did an Egyptian variety become owned by Monsanto just as a result of crossing it with its line?” Saif asked.”

Egypt has a history of open access to its germplasm and is a signatory of the FAO International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA). The treaty fosters open exchange of genetic resources in the interest of food security. Generally, when there is open access the restrictions on protecting varieties are confined to the original variety and not to derived varieties. The new Aljeeb-YG variety was developed by Monsanto and would have been the result of more than a simple cross. Varieties with introgressed traits are the result of an initial cross followed by many backcrosses, always selecting for the introduced trait. Furthermore, it is unclear whether or not Monsanto has applied for protection for this variety. (No database of plant variety certificates could be found on the internet.)

Nagib Nassar, Egyptian professor of genetics and plant breeding at University of Brazil, believes that the new Bt corn variety will have a “heavy economic cost on the shoulder of [the] small farmer.” He cites as a reason: a possible Technology Use Agreement that will prohibit seed saving and “poor farmers … obligated to destroy any seed for future plantation.”

In the United States, Technology Use Agreements (TUA) have been used to prohibit replanting patented seed by farmers. So far, there is not any indication that Fine Seeds International will be selling seed under a TUA. Furthermore, according to a report posted at the FAO website, the vast majority of farmers in Egypt have very small farms (less than 2 acres), making enforcement of a TUA a more difficult issue than in the United States where farm land holdings are typically quite large and accessible. In addition, it is unclear whether a TUA would be upheld by an Egyptian court. Until more information is available, this criticism is unfounded. Certainly without a TUA, farmers are able to save and use seed for their own consumption.

In summary, Egyptian plant variety protection law does not put farmers at the mercy of private industry commercializers, be they multi-national companies or domestic companies. Besides, farmers have the ultimate decision whether or not to spend their money on this new variety.