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By Fernando Cabaleiro, Naturaleza de Derechos – Extract from Navdanya International Report The Future of Food – Farming with Nature, Cultivating the Future – November 2019
In Argentina, patent law does not allow plant patents. However, shortly after obtaining the marketing authorization of the first genetically modified soybeans in 1996, the Monsanto company claimed rights of Intellectual property before the state agency responsible for granting patents (INPI – National Institute of Industrial Property) for a double-stranded recombinant DNA molecule and plant cells with the insert of that molecule.
The state agency rejected Monsanto´s request because the law is very clear: plants cannot be patented. Consequently, Monsanto went to court arguing that the patent law violated their property rights.
In November 2015, the Federal Chamber of Civil and Commerce of the City of Buenos Aires rejected Monsanto´s claim to patent the plants. In its decision the court was blunt, it stated that the recombinant DNA molecule, the plant cells transformed by it and the plants generated from them included in Monsanto´s request, were not included in the protection provided by the patent systems because they did not comply with the provisions established by law.
The court considered that any technical contribution made in the field of biotechnology which has an industrial application is not necessarily patentable as mere innovation is not comparable to inventiveness. It said that what was present in this case was a modification of a matter already existing in nature which does not constitute any human creation, an essential requirement for proceeding with the patenting as stated in the legislation. The ruling of the Chamber was confirmed by the Supreme Court of Justice of the Nation, in April 2019.
Even with that judicial decision, both Monsanto and Bayer went back to the justice system. Now that the claims consist of the recognition of patenting rights of genetic sequences, both companies maintain that the genetic sequences are constructions that are made artificially in the laboratories. Therefore, according to these corporations, they would not be part of the plant. This would make them patentable. They also argue that genetic sequences are inventions with surprising results that are not derived from a regular technique.
Both legal actions are ongoing. From Naturaleza de Derechos we question this claim for two specific reasons. First, it is not an invention. Second, it is reductionist to segment, separate, the genetic sequence of the plant. Once the molecule inserted with the genetic sequence is introduced into the plant, it forms part of it in an inseparable way. Therefore, the non-patenting of plants includes all its components: organelles, genes, leaves, bulbs, stems, etc.
On the political level, Monsanto and Bayer are pressuring the legislature to modify the Seed Law. In Argentina, use of seeds, falls within the scope of the UPVO Act 1978. Under this law farmers are allowed to save seeds, build their own varieties from them and exchange them without any restrictions or conditions. Along with the patent claim, Monsanto and Bayer are demanding that the use of seeds by the farmers be absolutely banned for three years, through modifications in the Seed Law. With this change in the law, farmers would not be able save seeds and will be forced to buy them in each sowing season.
While the bill proposes an exemption for farmers from family, peasant and indigenous agriculture, the requirements for the validity of the exemptions are impractical and cumbersome. In reality, what is sought after with the change in the Seed Law is control by the agribusiness corporations and large seed companies over all varieties of seeds, not only over GMOs. Hence, this amended law would promote a seed oligopoly, which by proscribing farmers’ use of seeds, would put the genetic diversity and food sovereignty at serious risk.
We reject intellectual property over plants as well as the Seed Bill as they only aim to strengthen the incentives for the commercial development of plant varieties that have the maximum trade potential and that require agrotoxics associated with the industrial production model of GMOs. Continuing this way, plant varieties created ancestrally by peasants and indigenous communities which possess a high genetic diversity and resilience to climate change would be gradually replaced by those produced by the private sector oligopoly of transnational companies with a high degree of uniformity and vulnerability, eroding the very basis of agricultural diversity.
Closely connected to the defence of freedom of seeds for their non-patenting and their own use as a human right is the commons and the community rights such as free access to seeds, adequate availability of food, biodiversity preservation, public health, food security and sovereignty. If these community rights are affected, the rights of mother earth, small farmers, indigenous communities and peasants, and indirectly, all consumers (especially the needy, the old, children, pregnant women and people with certain pathologies) are also affected.
It must be assumed that what is at stake is not something minor, it is our own freedom as stewards of nature’s given fruits. We have to think not only of the current society we are a part, but also of future generations. This way of thinking is something too alien for agribusiness merchants but too important and crucial for our steadiness and conviction, because the freedom of the future generations depends on the fact that we keep ours intact.