The Rural Voice, 1988-12, Page 21J
Dr. Leisle sees PBR, on the other
hand, as a way of lessening the need
for patenting, a compromise between
no rights and the tighter restrictions on
use that a patent would impose. In a
workshop on plant gene patenting
sponsored in 1987 by the Canadian
Agricultural Research Council, Dr.
W. T. Bradnock, director of the Seed
Division of Agriculture Canada's
Food Product and Inspection Branch,
compared PBR and patents. The
"rights of a patent holder over a pro-
tected variety are far more sweeping,"
he reported.
Lawyers are arguing over
the wording of the laws and
judges are trying to interpret
the laws as best they can.
And recently, in the U.S.
and Europe, they have begun
granting patents for plants
and animals.
A patent holder could deny other
breeders the right to use the gene. If,
however, use for breeding were
allowed, a new variety could include
patented genes from several sources.
Yet the patent would still apply. Dr.
Bradnock says that a patent,"in theory,
could prevent a farmer from saving
seed of a protected variety for use on
his own farm," although he acknow-
ledges the legal difficulties in enforc-
ing such a policy.
Another possibility is that a patent
could be granted for a plant character-
istic rather than for specific genes. Dr.
Bradnock outlines the case of a recent
U.S. patent granted for a sunflower
variety with high oleic acid content.
As the patent was for that character-
istic and not the specified genes, the
holder is in a position to restrict the
breeding of any sunflower with that
characteristic. If "this stands up to
legal challenge," Dr. Bradnock says,
"it means that a patent holder could
prevent others from completing
research even using totally different
genetic systems."
But this discussion is hypothetical.
PBR legislation has not been passed
and the Canadian federal court has
excluded plants from patenting.
At the workshop last year, details
of the plant patent situation in Canada
were presented by Dr. Efat Maher of
Consumer and Corporate Affairs.
Prior to 1982, the patent office
rejected all claims to living material.
Being found in nature, living organ-
isms are not encompassed by the
definition of a patentable product ("a
new and useful art, process, machine,
manufacture or composition of matter
or any new and useful improvement in
art, process, machine, manufacture or
composition").
In 1982, the rejection of a patent
application by Abitibi Price for a
mixture of bacteria acclimatized to
sulphate liquor was overturned after
an appeal by the company. As the
bacteria were not a type normally
found in nature but had been created
by the company, the appeal committee
found no reason for refusing the
patent. Today the policy is to allow
patents on microbes and cell lines.
In 1985, Pioneer Hi -bred attempted
to patent soybean seeds, pods, and
plants, and was rejected. Pioneer
appealed to the federal court, which
upheld the decision in 1987. The
judge ruled that plants cannot be
patented.
Joy Morrow, a lawyer with Smart
& Biggar in Ottawa, discussed this
point in the plant patenting workshop:
"patents relate solely to inventions...
It's not just coming up with a new
product that's part of your overall
scheme of testing in your lab. It's
more than that. You have to apply
inventive ingenuity to get something
unexpected." It seems a traditional
plant -breeding program is not con-
sidered "inventive ingenuity" in
Canada.
In the past 10 years, the patent
process has been thrown into occa-
sional frenzy because of the emer-
gence of biotechnology. The creators
of biologically unique products found
themselves in a position similar to that
of plant breeders: once their tech-
nique or animal was released, other
people could use it to manufacture a
similar product.
Biotechnology companies sought
protection under patent law, arguing
that their techniques and products
were unique and inventive, and there-
fore suitable for patent protection. But
patent law was not designed to take
living material into account, so it can
be interpreted to both allow and dis-
allow the patenting of life. Lawyers
are arguing over the wording of the
laws (European lawyers argue that
wording prohibiting the patenting of
"animal varieties" refers only to
varieties, and not animals themselves)
and judges are trying to interpret the
laws as best they can. And recently,
in the U.S. and Europe, they have
begun granting patents for plants and
animals.
Pat Mooney points to
a disturbing trend. After
the passage of legislation to
protect breeders' rights in the
U.S. and Europe, large multi-
national companies started
buying up small private
breeding firms.
While lawyers quibble over points
of law, there is a much wider debate
underway concerning the patenting of
life — the philosophical aspect of
PBR referred to by Dr. Leisle. The
question is simple: do people or com-
panies have the moral right to own a
life form? Many people say no, and
try to stop plant patenting. Because
they see PBR as the first step on the
road to patenting, it also comes under
attack.
The chief opponent of PBR in
Canada is GROW (Genetic Resources
for Our World), an affiliation of 33
labour, church, consumer, and Third
World groups. Pat Mooney is a
member of GROW and the author of
"Seeds of the Earth: A Public or
Private Resource?" Opposition cen-
tres on one important premise, that
world crops are becoming too gen-
etically uniform, and that PBR will
accelerate that process by encouraging
private companies to enter the field.
Most of the world's food plants
come from about a dozen "centres of
diversity," all of which are located in
Third World nations. In these centres,
a combination of climate and
geography has given genetic diversity
DECEMBER 1988 19