Open Source Seeds

SUBHEAD: New Open Source License fights the patenting of seeds through "copyleft" license.

By David Bollier on 3 May 2017 for Billier.org -
(http://www.bollier.org/blog/new-open-source-license-fights-enclosure-seeds)


Image above: A packet of newly developed seeds once opened becomes an agreement of "copyleft" not to patent the seeds within. From original article.

As more and more plant varieties have become privatized through patents, and as large corporations have bought up smaller seed breeders, a dangerous consolidation has occurred.

The genetic diversity of agricultural crops has shrunk, making crops more vulnerable to disease and our food supply more insecure. Meanwhile, farmers and the public have become more dependent on a few large agrochemical companies.

In short, seed patents have become a tool for privatizing seed from the pool of open and commonly owned plant genetic resources: an insidious enclosure of seed commons.

This scenario is eerily similar to the consolidation of software for personal computers some twenty years ago.  Microsoft used its market dominance to incorporate all sorts of software programs into its Windows operating system, a strategy sometimes referred to as “embrace, extend and extinguish.”

As Microsoft exploited its de facto monopoly over common software systems, programs for word-processing, spreadsheets and other functions began to go out of business.

But just as open source software served as a powerful antidote to proprietary software, so a group of academics, activists and plant breeders in Germany has now pioneered a similar antidote to seed patents:  an open source license.

The Open Source Seed license, recently released by a group called OpenSourceSeeds, is trying to “make seeds a common good again.” The license amounts to a form of “copyleft” for new plant varieties, enabling anyone to use the licensed seeds for free. Like the General Public License for free software, the seed license has one serious requirement: any seeds that are used, modified or sold must be passed along to others without any legal restrictions.

This is the “share-alike” principle, which is also used by Creative Commons licenses.  Its purpose is to prevent the privatization of a common resource by requiring any user to share it freely and forever.
The Open Source Seed license directs any users:

You will in particular refrain from making any claim to plant variety rights, patent rights or any other statutorily possible exclusivity rights of the seeds or their propagation and enhancements.

Simultaneously, the licensing provisions oblige you, in turn, to subject any seeds or enhancements of the seeds obtained from the present seeds to these licensing provisions, and only to pass them on to third parties on these conditions (“copyleft”). Should you infringe the obligations arising from this licence agreement, you will forfeit your rights of use of the seeds or any seeds or enhancements obtained therefrom.

By acquiring or opening the packet of these plant seeds you accept, by way of an agreement, the provisions of a licence agreement where no costs shall be incurred to you. You especially undertake not to limit the use of these seeds and their enhancements, for instance by making a claim to plant variety rights or patent rights on the seeds’ components.

You shall pass on the seeds, and propagations obtained therefrom, to third parties only on the terms and conditions of this licence. You will find the exact licensing provisions at www.opensourceseeds.org/licence. If you do not wish to accept these provisions, you need to refrain from acquiring and using these seeds.

The open source seed license was released on April 25 in Berlin by the Association for AgriCulture and Ecology (AGRECOL e.V) and the German NGO Forum on Environment and Development. They also released the first two open-sourced seeds, the tomato “Sunviva” (Lycopersicon esculentum L.) and the spring/summer wheat known as “Convento C.”  (For more on this event, see this story by Intellectual Property Watch.)

OpenSourceSeeds hopes that plant breeders will use its license to protect access to new crop varieties, eventually producing a new sector of open source seed production.  The group’s website invites breeders and seed distributors to register on its database so that buyers can discover where they can purchase open source seeds.

OpenSourceSeeds explains that its agenda is to promote food security through seed diversity; restore crop seeds as a common good; and assure free access to seed (meaning, no legal restrictions on use; seeds can still be sold).

It envisions a more ecological approach to farming rather than the monoculture crops of industrial agriculture. It wants to develop and promote a diversity of crop types, and promote varieties with ecological potential for niche locations and landscapes. All of these goals require a non-private, commonly owned seed sector where private profit is not the primary goal.

If you’d like to explore this topic further, here is an informative background essay, “Liberating Seeds with an Open Source Seed License,” by Johannes Kotschi and Klaus Rapf, of AGRECOL, the Association for AgriCulture and Ecology, in Germany.

Bravo, OpenSourceSeeds, for this ingenious initiative!  May your new license and ethic of seed stewardship produce many bountiful harvests in the future.

Check out the Open Source Seed Initiative in the US, too. It is quite active in advancing the same goals as OpenSourceSeeds and its license.  

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SCOTUS denies human gene patent

SUBHEAD: United States Supreme Court says human genes cannot be patented -  they are natural.

By Staff of Associated Press on 13 June 2013 o CBS News -
(http://www.cbsnews.com/8301-250_162-57589140/supreme-court-says-human-genes-cannot-be-patented/)


Image above: A woman holds a banner demanding a ban over human genes patents during a protest outside the Supreme Court in Washington on 15 April 2013, From (http://www.nbcnews.com/health/patent-your-dna-what-supreme-court-ruling-means-you-6C10261058).

The Supreme Court ruled Thursday that companies cannot patent parts of naturally-occurring human genes, a decision with the potential to profoundly affect the emerging and lucrative medical and biotechnology industries.

The high court's unanimous judgment reverses three decades of patent awards by government officials. It throws out patents held by Salt Lake City-based Myriad Genetics Inc. on an increasingly popular breast cancer test brought into the public eye recently by actress Angelina Jolie's revelation that she had a double mastectomy because of one of the genes involved in this case.

Justice Clarence Thomas, who wrote the court's decision, said that Myriad's assertion - that the DNA it isolated from the body for its proprietary breast and ovarian cancer tests were patentable - had to be dismissed because it violates patent rules. The court has said that laws of nature, natural phenomena and abstract ideas are not patentable.

"We hold that a naturally occurring DNA segment is a product of nature and not patent eligible merely because it has been isolated," Thomas said.

Patents are the legal protection that gives inventors the right to prevent others from making, using or selling a novel device, process or application. The U.S. Patent and Trademark Office has been awarding patents on human genes for almost 30 years, but opponents of Myriad Genetics Inc.'s patents on the two genes linked to increased risk of breast and ovarian cancer say such protection should not be given to something that can be found inside the human body.

The company has used its patent to come up with its BRACAnalysis test, which looks for mutations on the breast cancer predisposition gene, or BRCA. Those mutations are associated with much greater risks of breast and ovarian cancer. Women with a faulty gene have a three to seven times greater risk of developing breast cancer and also have a higher risk of ovarian cancer.

Myriad sells the only BRCA gene test. Opponents of its patents say the company can use the patents to keep other researchers from working with the BRCA gene to develop other tests.

"Today, the court struck down a major barrier to patient care and medical innovation," said Sandra Park, a lawyer for the American Civil Liberties Union Women's Rights Project. "Myriad did not invent the BRCA genes and should not control them. Because of this ruling, patients will have greater access to genetic testing and scientists can engage in research on these genes without fear of being sued."

Jolie revealed last month that her mother died of ovarian cancer and that her maternal grandmother also had the disease. She said she carries a defective BRCA1 gene that puts her at high risk of developing breast and ovarian cancers, and her doctor said that the test that turned up the faulty gene link led Jolie to have both of her healthy breasts removed to try to avoid the same fate.

Companies have billions of dollars of investment and years of research on the line in this case. Their advocates argue that without the ability to recoup their investment through the profits that patents bring, breakthrough scientific discoveries to combat all kinds of medical maladies wouldn't happen.

But "genes and the information they encode area not patent eligible ... simply because they have been isolated from the surrounding genetic material," Thomas said.

In a concurring opinion, Justice Antonin Scalia said "the portion of the DNA isolated from its natural state sought to be patented is identical to that portion of the DNA in its natural state."

A Myriad spokesman did not immediately respond to a request for comment.

The court did rule that synthetically created DNA, known as cDNA, can be patented "because it is not naturally occurring," Thomas said.

And Thomas noted there are still ways for Myriad to make money off its discovery. "Had Myriad created an innovative method of manipulating genes while searching for the BRCA1 and BRCA2 genes, it could possibly have sought a method patent," he said. And he noted that the case before the court did not include patents on the application of knowledge about the two genes.

The case is 12-398, Association for Molecular Pathology v. Myriad Genetics, Inc.

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Novartis loses drug case

SUBHEAD: Indian court rejects Novartis' attempt to repatent new version of cancer drug.

By Nirmala George on 1 April 2013 for Huffington Post -
(http://www.huffingtonpost.com/2013/04/01/novartis-drug-case-india_n_2990434.html)


Image above: Head of the Beast. Syngenta formed by AstraZeneca and Novartis in 2000. Click on image to see history of Syngenta's parent companies to 18th century. From (http://islandbreath.org/2006Year/16-farming/0616-20WaimeaPoison.html).

India's Supreme Court on Monday rejected drug maker Novartis AG's attempt to patent an updated version of a cancer drug in a landmark decision that health activists say ensures poor patients around the world will get continued access to cheap versions of lifesaving medicines.

Novartis had argued that it needed a patent to protect its investment in the cancer drug Glivec, while activists said the drug did not merit intellectual property protection in India because it was not a new medicine. In response to the ruling, Novartis said it would not invest in drug research in India.

The court's decision has global significance since India's $26 billion generic drug industry, which supplies much of the cheap medicine used in the developing world, could be stunted if Indian law allowed global drug companies to extend the lifespan of patents by making minor changes to medicines.

Once a drug's patent expires, generic manufacturers can legally produce it. They are able to make drugs at a fraction of the original manufacturer's cost because they don't carry out the expensive research and development.

Pratibha Singh, a lawyer for the Indian generic drug manufacturer Cipla, which makes a version of Glivec for less than a tenth of the original drug's selling price, said the court ruled that a patent could only be given to a new drug, and not to those which are only slightly different from the original.

"Patents will be given only for genuine inventions, and repetitive patents will not be given for minor tweaks to an existing drug," Singh told reporters outside the court.

Novartis called the ruling a "setback for patients," and said patent protection is crucial to fostering investment in research to develop new and better drugs.


Ranjit Shahani, the vice chairman and managing director of Novartis India, said the ruling "will hinder medical progress for diseases without effective treatment options."

He said the court's decision made India an even less attractive country for major investments by international pharmaceutical companies.

"Novartis will not invest in drug research in India. Not only Novartis, I don't think any global company is planning to research in India," he said.

The Swiss pharmaceutical giant has fought a legal battle in India since 2006 to patent a new version of Glivec, which is mainly used to treat leukemia and is known as Gleevec outside India and Europe. The earlier version of Glivec did not have an Indian patent because its development far predated the country's 2005 patent law. Novartis said Glivec is patented in nearly 40 other countries.

India's patent office rejected the company's patent application, arguing the drug was not a new medicine but an amended version of its earlier product. The patent authority cited a provision in the 2005 patent law aimed at preventing companies from getting fresh patents for making only minor changes to existing medicines — a practice known as "evergreening."

Novartis appealed, arguing the drug was a more easily absorbed version of Glivec and that it qualified for a patent because it was "a revolutionary treatment," not an incremental improvement.

Anand Grover, a lawyer for the Cancer Patients Aid Association, which led the legal fight against Novartis, said the ruling Monday prevented the watering down of India's patent laws.

"This is a very good day for cancer patients. It's the news we have been waiting for for seven long years," he said.

Aid groups, including Medicins Sans Frontieres, have opposed Novartis' case, fearing that a victory for the Swiss drugmaker would limit access to important medicines for millions of poor people around the world.

Glivec, used in treating chronic myeloid leukemia and some other cancers, costs about $2,600 a month. Its generic version was available in India for around $175 per month.

"The difference in price was huge. The generic version makes it affordable to so many more poor people, not just in India, but across the world," said Y.K. Sapru, of the Mumbai-based cancer patients association.

"For cancer sufferers, this ruling will mean the difference between life and death. Because the price at which it was available, and considering it's the only lifesaving drug for chronic myeloid cancer patients, this decision will make a huge difference," Sapru said.

Leena Menghaney of Medicins Sans Frontieres said India would continue to grant patents on new medicines.

"This doesn't mean that no patents will be granted. Patents will continue to be granted by India, but definitely the abusive practice of getting many patents on one drug will be stopped," Menghaney said.

The judgment would ensure that the prices of lifesaving drugs would come down as many more companies would produce generic versions.

"We've seen this happening with HIV medicines, where the cost of HIV treatment has come down from $10,000 to $150 per year. Cancer treatment costs have come down by 97 percent in the case of many cancer drugs," she said.

"This decision is incredibly important. The Supreme Court decision will save a lot of lives in the coming decades," Menghaney said.
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