Last modified: 2018-12-14
Abstract
The development of genetically engineered crops in the 1980s drastically changed the legal landscape. Extending patent rights to plant varieties was uncharted territory; there were many grey areas, and biotech companies exploited them fully. When Roundup Ready soybean and Bt cotton were introduced in Brazil and India in the early 2000s, Monsanto implemented unprecedented systems for the collection of royalties. In Brazil, Monsanto charged royalties on farmers’ crops, as opposed to seeds, thus expanding its IP rights to a farmer’s harvest and curtailing farmers’ rights to save seeds. In India, Monsanto entered into comprehensive licensing agreements with seed producers that extended Monsanto’s IP rights (and royalties) to virtually every Bt cotton seed sold on the market.
In the past decade, legal activists have challenged these patent rights, licensing agreements and royalty collection systems in a number of high-profile class actions and public interest lawsuits. In patent infringement lawsuits in Canada and the United States, courts have consistently upheld a strict interpretation of patent law favouringthe interests of technology developers over those of farmers. In contrast, we argue that legal activists in Brazil and India had some success in establishing the validity of alternative legal interpretations grounded in social and collective interests, such as farmers’ rights and the right to food. We also briefly examine how legal activism around IP and biotech seeds spurred the creation of unexpected alliances, and the broader significance of these legal challenges for proprietary regimes in agriculture. This paper is based on interviews with Brazilian and Indian farmers, rural union leaders, plant breeders, activists, expert witnesses and corporate lawyers who are involved in these lawsuits.