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The number of property claims on plants by companies is rising. This can have dramatic consequences for farmers around the globe, as a case in India shows.
For years Haribhai Devjibhai Patel has been growing cotton, peanuts and potatoes in the western Indian state of Gujarat. For years he and his family have used seedlings from one harvest to plant the next year's crops on his four acre field.
Last year he planted a new potato variety known as FC5. It was a decision that ultimately landed him in court, because the US company PepsiCo had already claimed the rights to that very same potato variety.
Patel claims he wasn't aware of the potato's name, much less PepsiCo's claim.
"I had no idea whatsoever and how I had been dragged into this mess," he said in a statement to DW.
In April he and four other farmers from the region were sued by PepsiCo India for cultivating and allegedly infringing on its patent on FC5.
According to the plaintiffs' lawyer, Anand Yadnik, the lawsuit alleges that the FC5 potato is especially bred for PepsiCo's subsidiary company Lays and their internationally distributed product: potato chips.
PepsiCo was seeking 10 million Rupies or $140.000 (€ 126.000).
"I was completely devastated. I was afraid. Not in my lifetime would I ever have been able to pay the kind of damages that were being claimed by PepsiCo," Patel said.
The 46-year-old farmer has two children and earns around $3,500 per year.
The lawsuit was based on findings that PepsiCo gathered from Patel's field. According to his lawyer, the company hired a private detective agency to provide the data.
"They took secret video footage and collected samples from farmers fields' sans disclosing their real intent," he told DW .
The case is another example of an ongoing global trend of companies claiming property rights for plants or genetic material of plants across the globe.
"Resources that used to be available to mankind as a community have now been confined to privatization," Judith Düesberg from NGO gene ethical network told DW.
The United States first introduced the idea of patenting living materials in the 1980s and Western countries soon followed their lead. The number of patents on plants worldwide has increased a hundredfold from just under 120 in 1990 to 12,000 today – 3500 of them are registered in Europe,according to the European initiative No-Patents-On-Seeds.
Many farmers don't know that there could be a property claim on plants they have been using for years
What kind of invention?
By patenting a plant or a plant's traits, the patent owner has mostly exclusive rights to breed, grow and sell the product. This restricts farmers from sowing, planting, harvesting or breeding that variety without permission.
Patents are often applied to plants with special characteristics or to individual gene sequences in the plants, such as disease resistance or resistance to the effects of climate change. There have also been examples of companies such as Monsanto developing plants resistant to pesticides they themselves sell.
"The patentability of traits as an actual invention is a problem. Because plants develop and their genes mutate naturally," Judith Düesberg told DW. "So if a trait like an apple with pink dots is patented and a farmer accidentally finds an apple with pink dots on his trees he theoretically could be sued by the patent holder."
Patented pollen spread by the wind could, for example, cause an accidental intermixing of genetic material found in different fields.
In 2004, the multinational company Monsanto sued Canadian farmer Percy Schmeiser for replanting saved soybeans after one harvest without Monsato's permission. The farmer claimed that his field had been contaminated years ago by genetically modified pollen. Monsanto proved right in court. However, due to the small amount of patented genes in Schmeiser's crops the court ruled he didn't have any advantage and thus didn't have to pay damages.
Monsanto claims that upholding patent laws is necessary because it also guarantees the financing of new inventions. Not protecting them would hinder the development of newer and better technologies.
Commenting on a similar case, Monsanto stated that it "invests millions of dollars every day in the research and development of its agricultural products. […] For every $10 a farmer spends on seeds, Monsanto re-invests $1 in research and development."
However, critics argue that patents block access to genetic material for farmers and minimize biodiversity, the diversity of species and increase farmers' dependency on seed producers.
But Bayer, Monsanto's parent company, told DW in a written statement: "Farmers have the choice of whether and which products they buy from which supplier. [… ] Each farmer decides freely. […] Farmers will only use our products if they gain a clear advantage."
In Europe, a case involving Monsanto and a particular breed of melon drew media attention several years ago. Monsanto had discovered that an Indian melon variety was naturally resistant to a specific virus. At the European Patent Office it then successfully applied for a patent on that trait after breeding into other melons.
From this moment on, not only did this trait belong to Monsanto, but so did every melon variety containing it, including the Indian melon from which it originated. Patent opponents call this practice biopiracy.
The patent was later revoked by EU institutions on the grounds that the trait could not be considered "an invention."
A mega market and a threat to food security?
According to the Indian-based market research agency Mordor Intelligence, revenue in the seed sector will reach $90 billion by 2024 compared to about $60 billion in 2018. And over 50% of the worldwide market share is in the hands of Bayer-Monsanto, Du Pont and Syngenta.
Bram de Jonge from Oxfam Netherlands argues the growing number of plant patents and increasing consolidation in the seed industry threaten farmers' rights as outlined by the UN to store, use, exchange and sell seeds or crops from their own harvest.
"This is something that is not just happening in the US or Europe, it's happening around the globe," said de Jonge.
"Who will decide in the future what lands in the fields? It will be the big corporations," de Jonge told DW. "Patents were actually created to protect human inventions like a radio or a cellphone, but not for living material."
The UN report "The right to food" has also raised concerns about food security caused by "the oligopolistic structure of the input providers" warning that it could also cause food prices to increase and deprive the poorest of food.
A further concern is who owns the seeds and who produces the food. According to the NGO Germanwatch, most of the seed producing industry comes from the Global North, but 90% of biological resources (agricultural products, natural materials come) from the Global South.
While patenting laws remain more restrictive in the Global South, an Oxfam Study shows that big global players appear to be finding loopholes.
In India, for example, the law is not being applied properly, leaving farmers vulnerable, according to Varnika Chawla of the international law firm Bryan Cave LLP.
"In India, although the patentability of isolated genes would be excluded if the law were strictly interpreted […] patents on isolated genes have been granted," Varnika Chawla wrote in the Journal for Intellectual Property Law and Practice.
"The danger for the farmers is that courts misinterpret badly or simply wrongly or the laws are simply changed," Yagnin told DW.
PepsiCo's lawsuit against farmer Patel and the other plaintiffs led to massive protests by Indian farmers who are calling for a boycott of the multinational company. Politicians also criticized the company.
In May, PepsiCo India unexpectedly withdrew the complaint after closed door meetings with the state government. Despite several DW requests for comment, PepsiCo India had not responded by the time of publication. Although Patel is relieved the suit was withdrawn, he still has concerns.
"There are still chances of the company initiating such cases against me in the future and I'm not competent to stand against such giant multinational companies."
Nevertheless he will grow the potato FC5 again this year, "as a matter of right".