Bayer going after Pfizer for patent infringement is a forerunner for widespread abuse of intellectual property claims in food and farming if the planned GMO deregulation goes ahead. Report: Claire Robinson
Bayer’s Monsanto has sued COVID-19 vaccine makers Pfizer, BioNTech, and Moderna in Delaware federal court for patent infringement for using its messenger RNA technology to manufacture their vaccines. The lawsuits allege that the companies copied technology developed by Monsanto back in the 1980s for stabilising mRNA and enhancing protein production in (among other GMOs) GM insecticidal crops, in order to stabilise the genetic material used in their vaccines.
Bayer emphasised that it doesn’t want to block the pharmaceutical companies from manufacturing their vaccines. At a time when it faces billions of dollars in potential liabilities due to ongoing US Roundup-cancer litigation, it just wants a cut of the profits from products it played no part in developing.
For many observers of this field, the initial reaction may have been cynical amusement at the sight of a corporation that has been furiously lobbying for legal immunity from those it harms, pursuing others through the courts. There is also the irony of Big Biotech (Ag) going after Big Biotech (Pharma) for allegedly stealing their patented technology. But for those familiar with Bayer’s subsidiary Monsanto’s long history of aggressively going after US farmers for supposed patent infringements, there also looms a sense of dread.
What’s coming for our seed, farms, and food if the EU deregulates new gene-edited GMOs? It seems certain that the Bayer vs Pfizer et al. lawsuits are a foretaste of the legal barrage that will face Europe’s plant breeders and farmers. Deregulation means many more GM crops will be marketed. And both GM technologies and products, as they are developed with an “inventive step”, are patented. Most are covered by multiple patents.
The UK government, which has already deregulated new GMOs, thus far has no plans to label even the seeds in a way that would distinguish them from non-GM, non-patented ones. So if you are a breeder, a farmer, a food processor, or a retailer, you won’t know if you are infringing agbiotech patents when you develop new plant varieties, plant your crops, or market your products – and you can’t take steps to avoid falling foul of patent claims.
Currently it looks as if the EU might also avoid labelling new GMOs except for the seeds, if the proposed deregulation passes in the Parliament this March. It also looks as if there will be no requirement to make public the detection methods (which the developer will certainly possess in-house) for these GMOs. So no one who is accused of infringing a patent can defend themselves by verifying that they are not using patented gene sequences.
Legal harassment of breeders has begun
Anyone who thinks that agbiotech companies are not going to go after smaller breeders or retailers for infringing their patents needs to wake up to the fact it’s already happening – even in relation to conventionally bred plant traits that have nothing to do with genetic engineering. This is due to the ongoing practice of the European Patent Office – in clear contravention of EU decisions that, unlike GMOs, conventionally bred plants are not patentable – of allowing patents on a growing number of conventionally bred plants and even on plant genes found to occur naturally.
As Mute Schimpf of Friends of the Earth EU said: “Big biotech’s strategy is to apply for wide patents that would also cover plants which naturally present the same genetic characteristics as the GMOs they engineered. They will be lining their pockets from farmers and plant breeders, who in turn will have a restricted access to what they grow and work with.”
This has reached the point where in 2020, the Guardian newspaper reported that Adaptive Seeds, an organic seed company that does not use GM seeds or any form of intellectual property rights, received a letter from BASF, a German multinational chemical company and the owner of Nunhems, the fourth-largest vegetable breeding company in the world. The letter did not directly accuse Adaptive Seeds of using patented material, but did list varieties of seeds and traits Nunhems had patented. Reporter Marin Scotten commented: “It was an ominous reminder of just how many traits and varieties BASF has control over.”
Adaptive Seeds founder Andrew Still said, “There’s always a general concern that one day they’re going to decide we’re selling something that they think is theirs and they’re going to sue us over that.”
There’s also the notorious case of the GM Purple Tomato developer, Norfolk Plant Sciences, threatening heirloom seed company Baker Creek for selling seeds of a purple tomato that Baker Creek believed was conventionally bred but which Norfolk insisted contained its patented GM genes. Whether or not that was the case, the incident will have a chilling effect on plant breeding, as no breeder in their right mind is likely to ever now develop a non-GM fully purple tomato[1] for fear of the legal entanglements that could follow.
In similar vein, another breeder has decided that he will not pursue trialling his frilly-leaved lettuce because it resembles a patented (but non-GMO) lettuce type owned by the large seed company Rijk Zwaan.
At a time when just four pesticide and GMO seed firms – Bayer, Syngenta Group, Corteva, and BASF – control 50-60% of the global seed market (GMO and non-GMO alike), we should worry about the implications of this consolidation of patent-governed ownership for our seed and food supply.
Who controls agri-tech?
Seeds are just part of the picture of consolidation of the food and farming sectors by the Big Four pesticide and GMO seed companies. They also dominate the field of agri-tech – the digitalised use of so-called “innovations”, from artificial intelligence (AI) to data collection and analysis, drones, sensors, and biotech. AI and digitalisation are being hyped as having the ability to make farming more efficient, sustainable, and profitable by improving crop yields, water and soil management, and livestock welfare. It is key to data- and robot-driven “farming without farmers” and bioreactor-grown food. These concepts excite ecomodernists and some policymakers, but send a chill down the spine of those who value seed and food sovereignty and farmers as holders of knowledge who work in harmony with nature.
The question of “Who controls agri-tech?” was the subject of a session at the recent Oxford Real Farming Conference (ORFC). The speakers emphasised that “innovation” was a “bullshit” concept that was being used to promote the narrative that the digital transformation of farming was inevitable and necessary. Real innovation comes from small-scale and peasant farmers, who have evolved systems that work in their own local conditions. But small farmers – and the knowledge they embody – were being pushed out by the digitalisation model, which is characterised by data harvesting of farmers’ knowledge and experience, centralised control of that data, and lack of access and control for the farmers who generate it.
The ORFC speakers addressed the question of which technologies might suit agroecological farmers. Pat Thomas of A Bigger Conversion reported on their survey of UK agroecological farmers. She said that while these farmers are enthusiastic about smartphones and social media as a way to connect to other farmers, customers, and markets, they are wary about loss of farmer autonomy and being tied into “subscription models” that require high and repeated payments for access to data and information. They want technology that enhances their autonomy and shows benefit for agroecological systems.
However, all the speakers clarified that control of, and access to, data for organic and agroecological farmers are not, in reality, part of the ag digitalisation model. Even when a German startup said it wanted to work with these farmers, it failed to consult them and their needs were not considered in designing the technology. The digital revolution doesn’t start by identifying a farming problem that needs to be solved, but comes up with a “solution” in search of a problem: “We have the tech to do xyz. Let’s find a way to put it to use.”
The speakers pointed out that this is the same model of centralised control that governs genetic engineering developments in agriculture. It’s the opposite to farmer control. Patented seeds and digitalised agriculture are two sides of the same coin of Big Ag consolidated ownership of seeds and farming, which treats farmers as, at best, renters of Big Ag’s intellectual property. In a digitalised system, the ag corporations will take part of farmers’ profits in a subscription model in payment for use of their patented technology.
In this regard, GMWatch recalls the 1998 prophetic statement by Friedrich Vogel, head of BASF's crop protection business: “Farmers will be given just enough to keep them interested in growing the crops, but no more. And GM companies and food processors will say very clearly how they want the growers to grow the crops.”[2]
When Big Ag spells out its intentions in rare moments of honesty, we should believe them.
“Enshittification” of the seed and farming sectors
Enshittification is a term coined by the author and digital rights activist Cory Doctorow in his book of that name. The book isn’t specifically about patents on plants, GMO or not, but it is highly relevant. Doctorow describes the three-stage decline of digitalised platforms: first attracting users with quality, then serving business customers at users’ expense, and finally (helped by the platform’s achievement of near-monopoly status) extracting value from both for shareholder profit, making services worse over time. The “enshittification” experience will be familiar to most. For example, a few years ago people could buy Microsoft Office software as a one-off purchase and own it, whereas now they have to “rent” it by paying a yearly subscription, for ever. Similar processes have affected Facebook, where users now have to pay to “boost” their posts in order that many of the people who have chosen to see them can do so.
This business model marks a major societal shift in power from those who make and sell products (capitalists) to those who own products and charge other people to use them (rentiers). Doctorow calls the system not capitalism but techno-feudalism, as it resembles the medieval feudal system whereby wealthy and powerful landlords owned the land and all the crops produced on them, and the farmers who worked that land owned nothing, being mere tenants who paid rents to the landlords in the form of money or the crops they have grown.
It’s crucial to bear in mind that patent-based harassment doesn’t require a verifiable breach of a validly earned patent on an actual novel product. According to Doctorow, the US Patent and Trademark Office (USPTO) has a “shameful record of rubber-stamping ridiculous, overbroad, incredibly obvious patent applications for ‘inventions’ that often boil down to ‘doing something obvious that has been around forever, but with a computer’.”
This is reminiscent of the EU Patent Office’s enablement of the biopiracy of conventionally bred plant genes (which have been around “forever”) being covered by patents, in violation of EU decisions.
As a result of the USPTO’s bad practices, “These junk patents get filed by the thousand during every tech bubble, as startup hustlers seek to prove to venture capitalists that they have some ‘defensible IP [intellectual property]’ that will allow them to grow without worrying about competition. The USPTO’s attitude to junk patents has historically been ‘Grant ‘em all and let the courts sort ‘em out.’”
And the law in the US, Doctorow says, comes down on the side of the rentier.
The new litigation threat: patent trolls
Any plant breeder or farmer who reassures themselves that Bayer or Corteva won’t waste their time coming after small fry like them should think again. Even ignoring the fact that such huge corporations have done exactly that, it’s not even necessarily Bayer or Corteva that will do the grunt work.
Doctorow explains that as startups fail, the failed company’s junk patents don’t end up forgotten. They acquire a second zombie life, with the emergence early this century of “a new kind of predator… the patent troll”. Patent trolls buy up junk patents – or even manufacture their own – “and then use them to extract huge amounts of money from productive businesses”. They have no products: “The only thing they manufacture is litigation threats. They use low-level, barely trained staff to seek out companies whose activities intersect in some way with the patents they’ve acquired. Then they send those companies ‘speculative invoices’ – bills for licensing fees for their patents, accompanied by bloodcurdling threats about the damages and fees the victims will be on the hook for if the case goes to trial.”
US patent law provides for triple damages for “wilful infringement”, so a patent troll can argue that you will have to pay three times over if you lose in court.
A key aspect of the strategy is that for small and medium-sized businesses, the license fee is set relatively low, certainly lower than the fee you’d have to pay a lawyer just to review the threat and advise you whether you should pay or ignore it. Doctorow comments: “That’s a pretty clever gambit, making it cheaper to pay than it is to find out whether you should pay.”
Weaponising patents against small companies
While Doctorow is talking about failed companies and abandoned junk patents, IP-based harassment can equally weaponise active patents that are still owned by a viable business.
We at GMWatch are aware of publishing businesses that have fallen foul of “copyright trolls” – companies that hunt the Internet for publishers that have committed potential copyright breaches and, on behalf of the copyright owner, issue legal threats to the allegedly infringing company with an invoice for a few hundred dollars or pounds. If the invoice is paid, the copyright troll will retrospectively issue a licence for use of the material and make the legal threat go away.
It’s doubtful if the copyright owner, which is often a huge multinational company – puts much, if any, effort into commissioning copyright trolls to do this work. But they don’t have to. As both copyright owner and copyright troll make money out of it with no real work involved or extra products having to be made, the copyright owner won’t object and will likely be happy to enable the lucrative harassment to continue.
There is every reason why a successful extortion model like this will be applied to the field of agbiotech, where all GMO products are covered by multiple patents and even some conventionally bred plant traits have been pirated and patented. Where today copyright trolls stalk the Internet, tomorrow patent trolls will stalk breeders, farmers, and other supply chain actors. It’s a win-win for the patent owners and patent trolls alike, with the losers being all the rest of us.
“Disenshittification” tactics
As a potential remedy, Doctorow identifies some “disenshittification” tactics, including strong pro-competition law that would break up monopolies, as well as rigorous regulation of companies operating in the patents and other IP space. But unfortunately, the worldwide rush to deregulate new GMOs is going in the opposite direction. It favours the ongoing “enshittification” of food and agriculture by encouraging monopolistic consolidation of patent ownership. Corteva and Bayer dominate the patent landscape on new and older-style GMOs alike, and no amount of harping on the “gene editing/CRISPR will democratise GM” narrative will change that. And even if you are a breeder or farmer who doesn’t want to buy into this business model, you are at risk of being sued for stealing Big Ag’s patented genes.
Sleepwalking into patent thicket
Most individuals and organisations are unaware of the patent thicket they are sleepwalking into, in allowing the deregulation of new GMOs to go ahead without demanding strong protections for the numerous potential victims of IP-based harassment.
One organisation that is aware is the small-scale farmer association, European Coordination Via Campesina (ECVC). ECVC has denounced the EU provisional agreement to deregulate GMOs derived from “new genomic techniques” (new GM techniques) as “a strategic error for Europe’s food and seed sovereignty and the future of EU agriculture, which will only benefit to a handful of patent-holding seed corporations, reduce agrobiodiversity, increase the prices of seeds for farmers, and deceive consumers by removing the labelling of final products.”
ECVC points out that “Without traceability requirement for crops and products and requirement to publish detection and identification methods, farmers and traditional seed producers will be completely unprotected in case of accidental contaminations or of pursuits for patent infringement, including for patents abusively extending to native traits present in traditional seeds.”
ECVC adds that the provisional agreement “completely ignores the strong position taken by the European Parliament, which recognised in February 2024 that patents are harmful for European farmers and small and medium seed companies, and called for a restriction of the scope of patents on GMOs-NGTs to protect them from their abusive extension to seeds and traits obtained by non-patentable conventional breeding processes.”
The EU Commission has commissioned a study on the impacts of “new GMO” patents, but it won’t be published until after the deregulation proposal is planned to pass into law. In any case, it is unlikely to take a critical view on a deregulation that was initiated by the Commission itself.
Plant breeders, farmers, and other supply chain actors vulnerable
Patent- and IP-related abuses are already rife in the digital sector and indeed are part of its business model. It would be naïve in the extreme to believe that plant breeders, farmers, and other supply chain actors will somehow be immune to these abuses. The European Parliament has a chance to save the situation by rejecting the GMO deregulation draft law in the March vote. For all our sakes, it should do so.
Notes
1. While non-GM heirloom purple tomato varieties exist, their purple colour is concentrated in the skin rather than the flesh. The unique selling point of the GM tomato – and the supposedly unique feature that prompted the legal threat to Baker Creek – is that it is purple all the way through.
2. Farmers Weekly, 6 November 1998.
Image: Shutterstock (licensed purchase)