Summary: Seed Activism: Patent Politics and Litigation in the Global South (Food, Health, and the Environment) by Karine Peschard

Recommendation

The advent of genetic seed engineering in the 1980s triggered disputes between the corporations assuming proprietary control of seeds and those advocating for issues such as farmers’ rights and affordable food that would last decades. Given today’s existential threats, such as climate change, Karine Peschard argues that people must gain a better understanding of the global food supply and the corporations controlling food production. She reveals how the lawsuits against corporate giants such as Monsanto challenge the global agbiotech hegemony.

Take-Aways

• A few agricultural biotech corporations control the world’s proprietary seed market.
• The United States pressured states in the Global South to adopt its Intellectual Property standards.
• Deliberate legal ambiguities created confusion surrounding agbiotech patents.
• Monsanto threatened farmers’ livelihoods and drove up food costs.
• Brazil and India’s courts have debated the validity of Monsanto’s patents.
• Monsanto faced “biopiracy” lawsuits when genetically engineering Indian eggplant.
• Legal ambiguity and a lack of government accountability has harmed Brazilian and Indian citizens.
• Monsanto’s controversial legal battles shifted perceptions about agbiotech.

Summary

A few agricultural biotech corporations control the world’s proprietary seed market.

In 2018, four corporations – BASF, Bayer-Monsanto, Corteva and ChemChina-Syngenta – held oligopolistic control over 60% of the world’s proprietary seed market. Monsanto alone controls 20% of the market. Corporations such as Monsanto have patented genetically modified seeds, thus expanding corporate intellectual property (IP) to erode farmers’ rights in the Global South. Devising and implementing systems that surveil farmers and collect royalties on seeds, Monsanto takes aggressive actions against farmers. It sometimes sues its own customers for saving and replanting seeds without paying royalties.

“The increasingly viable threat of our global food chain collapsing under the combined pressure of climate change and the COVID-19 pandemic makes understanding the proprietary dimension of our food regime more urgent than ever.”

Farmers worldwide have fought back to protect their livelihoods. In Passo Fundo, Brazil, for example, a farmers’ union filed a lawsuit against Monsanto regarding its charging royalties for Roundup Ready seeds. The patent on Roundup Ready’s herbicide tolerance trait expired and entered the public domain in 2015. In the biodiverse regions of Brazil and India, farmers have recently found themselves embroiled in global negotiations and precedent-setting court cases regarding genetic and agricultural resources.

These and other actions raise illuminating questions: What tactics have agricultural biotechnology corporations used to claim Intellectual Property (IP) rights in countries that purport to have legislation protecting farmers’ rights? What role do states play in implementing biotech IP regimes in the Global South? What legal mechanisms exist to contest agbiotech patents?

The United States pressured states in the Global South to adopt its Intellectual Property standards.

The United States granted corporations the ability to patent genetically engineered products and processes in the 1990s. It sought to make its intellectual property (IP) standards a global norm to serve US agbiotech and pharmaceutical companies. Most nations in the Global South excluded the patenting of plant varieties. This exclusion proved crucial for countries, such as Brazil and India, whose farmers benefited from wider exchange and free access to plant material.

“What was at stake was not so much the adjustment of IP regimes as the extension of US and European standards of intellectual property – a distinctly Western tradition – to the rest of the world.”

In India and Brazil, the United States used extended intellectual property rights to bargain for enhanced market access in sectors ranging from agriculture to textiles. By 1994, the World Trade Organization had passed the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), after years of negotiations. This allowed the patenting of certain types of living material.

Deliberate legal ambiguities created confusion surrounding agbiotech patents.

The TRIPS agreement has some exclusions: Article 27.3(b) states that nations couldn’t patent animals or plants, “other than microorganisms.” Critics find this intentionally ambiguous. The agreement also confusingly states that member states had to extend patent protection for plant varieties that aligns with its legislation, while respecting TRIPS’ minimum standards.

“As global corporations such as Monsanto entered the Brazilian and Indian markets starting in the first decade of the 21st century, legislative differences among countries, coupled with the legal uncertainties…proved fertile ground for legal disputes to rage around intellectual property and biotech seeds.”

Countries in the Global South, such as Brazil, have passed legislation to limit the scope of TRIPS, such as Brazil’s 1997 Plant Variety Protection Act (PVP), fueling ongoing legal battles.

Monsanto threatened farmers’ livelihoods and drove up food costs.

In the early 1970s, Monsanto created Roundup, a broad-spectrum glyphosate herbicide that killed a wide range of weeds. Ten years later, the company developed a genetically engineered soybean – a plant that could withstand the application of Roundup, which Monsanto dubbed Roundup Ready (RR). Monsanto began the novel practice of charging farmers royalties on the patented Roundup Ready soybeans. It charged farmers when they bought the seeds and demanded royalties from those who saved, replanted or shared seeds for subsequent crops. Monsanto’s private IP regime contradicted Brazil’s PVP Act – which protected farmers’ rights – and bypassed national public regulations and policy.

“Many soybean farmers were left with a bitter feeling after their own leadership chose to side with Monsanto rather than defend their interests.”

Protracted legal battles ensued, with judges issuing contradictory rulings and overturning one another’s decisions: For example, a judge granted an injunction to a rural cooperative representing 8,000 farmers, Cotricampo. The judge ruled Monsanto did not have the right to charge royalties on soybean harvests – only the seeds it sold in 2005. A different judge, siding with Monsanto, revoked this injunction a month later.

In 2009, the Passo Fundo union filed a groundbreaking class-action lawsuit, arguing that Monsanto’s royalty collection approach was “arbitrary, illegal and abusive.” Other unions, associations and public institutions joined them, including the Brazilian Patent Office (INPI). A judge ruled against Monsanto in 2012. But, following an objection from Monsanto, Brazil’s Court of Justice extended the case indefinitely. This meant farmers had to continue paying royalties – the disputed amount was roughly $7.7 billion.

Brazil and India’s courts have debated the validity of Monsanto’s patents.

The Association of Soybean and Corn Producers of Mato Grosso (Aprosoja-MT) challenged the validity of Monsanto’s patents in 2017. The Association argued against Monsanto’s 2012 patenting of its latest version of Roundup Ready, Intacta. The Association argued that Intacta wasn’t sufficiently different from previous versions, so the patent failed to meet the legal criteria for “innovation.” It also argued that Monsanto hadn’t described the invention with sufficient clarity – a legal requirement. The Brazilian Patent Office requested that the court revoke its own 2012 patent.

“Given the rapid pace at which biotechnology and IP regimes are coevolving, the challenge for farmers and agrarian activists alike will be to stay ahead of the game.”

Similar legal battles occurred in India, where Monsanto collected royalties on cotton harvests. Its Bt cotton seeds contain a gene that triggers the plants to produce the Cry1Ac protein, which is toxic to certain pests. By 2010, Indian states, such as Andhra Pradesh, had passed Cotton Seeds Acts to regulate the prices of the expensive seeds and to fix royalties. Monsanto fought back, filing a lawsuit against India’s biggest seed company, Nuziveedu Seeds, for using Bt seed technology without an active sublicensing agreement. A High Court judge later declared that Monsanto had illegally terminated its agreement with Nuziveedu.

In 2018, two High Court Justices ruled that Monsanto couldn’t legally patent Bt cotton seeds in India. However, these gains were short-lived: Following appeals from Monsanto, Monsanto’s new parent company, Bayer AG, reached an out-of-court settlement with Nuziveedu. The settlement prevented the landmark High Court ruling in question from potentially becoming law.

Monsanto faced “biopiracy” lawsuits when genetically engineering Indian eggplant.

Monsanto developed Bt brinjal – a genetically engineered eggplant it designed to be pest-resistant – with the Indian seed company Mahyco in the early 2000s. Bt brinjal would be India’s first genetically engineered food crop and eggplant is a popular vegetable in India.

Mahyco’s 2006 attempts to secure a patent and permission from India’s Genetic Engineering Appraisal Committee (GEAC) to begin large-scale trials of cultivating Bt Brinjal triggered considerable controversy. India’s Environment Minister launched a public consultation into Bt Brinjal, which resulted in a moratorium nationwide. A South Indian NGO, the Environment Support Group (ESG), submitted a petition asserting that Monsanto and Mahyco had used local varieties of eggplants without first obtaining permission from the National Biodiversity Authority (NBA). This, the ESG asserted, constituted biopiracy.

“The legislative changes enacted in Brazil and India to implement the World Trade Organization’s Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) raised complex legal questions that were left unresolved.”

India’s Biological Diversity Act holds that those using biological resources and the accumulated knowledge associated with them for commercial or research use must first attain permission from relevant authorities. Critics argued that local communities in Karnataka and Tamil Nadu – which protected and cultivated these eggplant varieties – wouldn’t gain any commercial benefit if Monsanto-Mahyco patented its new eggplant strain. Monsanto-Mahyco argued that it had worked with public institutions in the research stage. The company collaborated with a state agricultural university and claimed the research project’s public status should exempt it from needing permission from the NBA. Monsanto has not secured a patent on Bt Brinjal in India. The complex case reveals the problematic nature of public-private partnerships, which often prioritize commercial over public interests.

Legal ambiguity and a lack of government accountability has harmed Brazilian and Indian citizens.

Monsanto introduced transgenic crops – those with genetically engineered DNA sequences – in the 2000s. In Brazil, Monsanto attempted to renew its patent of Roundup Ready, which expired in 2010. The Attorney General of the Union filed a Direct Action of Unconstitutionality (ADI) – a Brazilian legal tool. The Attorney General argued that the “pipeline patent” process Monsanto was attempting to leverage – which would allow it to patent something in the public domain – was unconstitutional. The Superior Court of Justice delayed the case to investigate the unconstitutional nature of the pipeline process for nine years. When the case finally appeared on the agenda in 2021, the Superior Court removed it. Brazil’s Supreme Court let the case “die.”

“The hype around transgenic crops in the early years meant that governments, scientists and farmers in agricultural powerhouses like Brazil and India were anxious to gain access to the technology, and Monsanto ably exploited these sentiments.”

During the court delay from 2009 until 2017, Brazilians paid more for patented seeds and medicines not in the public domain. Monsanto filed lawsuits against Brazil’s Patent Office when it denied the company’s patents. Brazilian and Indian political leaders were reticent to support the IP regime. But they accepted neoliberal policies to gain access to transgenic crops, which forced citizens to pay more for food. The governments could have explicitly protected farmers’ seed saving rights when signing the TRIPS agreement.

Monsanto’s controversial legal battles shifted perceptions about agbiotech.

People challenge the norms the agbiotech industry established by:

• Rethinking public-private partnerships – When the boundaries between private and public interests blur, states struggle to support the public good.
• Applying an international human rights framework – The United Nations adopted the Declaration on the Rights of Peasants and Other People Working in Rural Areas in 2018, which includes the right to biological resources and seeds.
• Revealing contradictions between PVP and patent laws – In India and Brazil, legislation protecting plant varieties and farmers’ rights conflicts with patent law.
• Questioning the patentability of plants and genes – The Delhi High Court questioned whether companies such as Monsanto could legally patent biotech traits. This drew attention to the ambiguity in the TRIPS agreement, challenging the legitimacy of the dominant neoliberal food regime.

About the Author

Geneva Academy of International Humanitarian Law and Human Rights research fellow Karine Peschard is an associate researcher at the Albert Hirschman Centre on Democracy.

Review

Seed Activism: Patent Politics and Litigation in the Global South, written by Karine E. Peschard, is a thought-provoking and meticulously researched book that delves into the complex world of seed activism, patent politics, and litigation in the Global South. Peschard’s work sheds light on the critical issues surrounding intellectual property rights, agricultural biodiversity, and the power dynamics between multinational corporations and local communities.

The book begins by providing a comprehensive overview of the historical context and evolution of seed activism in the Global South. Peschard skillfully navigates through the intricate web of legal frameworks, international agreements, and trade policies that have shaped the current landscape of seed control and ownership. By examining case studies from various countries, including India, Brazil, and Mexico, the author presents a nuanced understanding of the challenges faced by farmers, indigenous communities, and grassroots organizations in protecting their traditional knowledge and seed sovereignty.

Chapter 1 discusses the politics of seed patenting. It analyzes conflicts between open-pollinated and F1 hybrid seed systems. It explores how activists challenge seed patents as a threat to biodiversity conservation and small farmers’ livelihoods.

Chapter 2 focuses on seed patent law and litigation related to this issue globally. It looks at legal doctrine on patent eligibility for plants as well as cases around the world where farmers and NGOs have contested these patents in court.

Chapter 3 profiles grassroots seed activism and resistance networks that have emerged in India, Latin America, and Africa. The book documents the strategies these groups use like seed swapping, open-source breeding, and mobilizing against seed laws.

Chapter 4 delves into specific legal battles waged by activists, such as the challenge to Monsanto’s cotton patents in India. It shows how litigation and publicity around cases can shape public opinion on this issue.

The conclusion reflects on what seed activists have achieved so far as well as ongoing challenges. It argues their efforts have raised important debates but securing comprehensive reforms will require sustained transnational cooperation.

One of the book’s strengths lies in its exploration of the power dynamics between multinational corporations and local communities. Peschard highlights the ways in which corporations exploit legal loopholes and employ aggressive patenting strategies to gain control over agricultural resources. Through in-depth interviews and extensive fieldwork, the author captures the voices of those directly affected by these practices, providing a humanistic perspective that adds depth and authenticity to the narrative.

Peschard’s analysis of the legal battles and litigation surrounding seed patents is particularly insightful. She examines landmark cases and their implications for both the Global South and the global seed industry as a whole. The author critically evaluates the role of international organizations, such as the World Trade Organization (WTO) and the International Union for the Protection of New Varieties of Plants (UPOV), in shaping the legal frameworks that govern seed patents. This analysis offers valuable insights into the power dynamics at play and the potential for change within the existing system.

Furthermore, Seed Activism goes beyond merely documenting the challenges faced by seed activists and offers a vision for a more equitable and sustainable future. Peschard explores alternative models of seed governance, such as community seed banks and open-source seed initiatives, that empower local communities and promote agricultural biodiversity. By highlighting successful examples of resistance and collaboration, the author inspires hope and encourages readers to engage in seed activism themselves.

In terms of writing style, Peschard’s prose is clear, concise, and accessible, making the book suitable for both academic and general readership. The author’s meticulous research is evident throughout, with extensive footnotes and a comprehensive bibliography that provide additional resources for those interested in further exploration.

Key Arguments:

Peschard’s central argument is that seed patenting has become a powerful tool for corporate control over agriculture in the Global South, undermining traditional farming practices and local seed systems. She argues that the patenting of seeds has led to the concentration of power in the hands of a few large corporations, which use litigation to enforce their intellectual property rights and suppress farmer innovation. Peschard also highlights the impact of seed patenting on food sovereignty, arguing that it undermines the ability of farmers to produce and sell seeds that are suitable for their local conditions, leading to a loss of agro-biodiversity and food self-sufficiency.

Strengths:

• Thorough research: The book is based on extensive research, including interviews with farmers, activists, and policymakers, as well as a thorough analysis of legal and policy documents.
• Clear and concise writing: Peschard’s writing is clear and concise, making the book accessible to a wide range of readers.
• Timely topic: The book addresses a timely and important topic, highlighting the urgent need for policy change and social movements to address the issues of seed patenting and the loss of biodiversity.
• Comprehensive analysis: Peschard provides a comprehensive analysis of the legal and political dynamics surrounding seed patenting in the Global South, drawing on a wide range of case studies and legal precedents.
• Insightful critiques: Peschard’s critique of seed patenting is insightful and well-supported, highlighting the ways in which it compromises the rights and autonomy of smallholder farmers.
• Policy recommendations: Peschard provides a range of policy recommendations for addressing the issues raised in the book, including the need for stronger farmer rights and the development of alternative seed systems.

Weaknesses:

• Focus on legal and policy issues: While the book provides a comprehensive analysis of the legal and policy issues surrounding seed patenting, it could have benefited from a more in-depth exploration of the social and economic impacts of these issues.
• Limited geographic scope: While the book focuses on the Global South, it would have been useful to include more case studies and perspectives from other regions, particularly those in Africa and Asia.
• Limited engagement with alternative perspectives: While Peschard provides a critical analysis of seed patenting, she does not engage fully with alternative perspectives on intellectual property rights and their potential benefits for agricultural development.

Key Takeaways:

• The patenting of traditional seed varieties has had a devastating impact on small farmers and indigenous communities in the global South.
• The current patent system has led to the concentration of seed markets in the hands of a few large corporations and the loss of biodiversity.
• Civil society organizations and social movements have played a crucial role in challenging the patenting of traditional seed varieties and advocating for the rights of small farmers and indigenous communities.

Recommendations:

• The book could have benefited from a more in-depth exploration of the social and economic impacts of seed patenting.
• The author could have explored more alternatives to the current patent system, such as open-source seed sharing and community-based seed breeding programs.
• The book could have included more case studies from different regions of the world to provide a more comprehensive understanding of the issue.

In conclusion, “Seed Activism” is a highly informative and thought-provoking book that provides a comprehensive analysis of the legal and political dynamics surrounding seed patenting in the Global South. Peschard’s arguments are well-supported and insightful, highlighting the ways in which seed patenting compromises the rights and autonomy of smallholder farmers. While the book has some limitations, it is an important contribution to the field of environmental and intellectual property law, and its findings have significant implications for policies aimed at promoting sustainable agriculture and food security in the Global South.