Howdy, all--
Thought this might interest you seed watchers.
peace
mish
~~~~~~~~~~~~~~~~~~
>RAFI
>Geno-Types
>17 January 2000
>http://www.rafi.org
>(Please see posting on RAFI's web site to find full citations and
>sources for this article.)
>
>
> *** MEXICAN BEAN BIOPIRACY ***
> US-Mexico Legal Battle Erupts over Patented "Enola" Bean
> Plant Breeders' Wrongs Continues…
>
>
>Summary: A US-based company, POD-NERS, L.L.C, is suing Mexican bean
>exporters, charging that the Mexican beans (Phaseolus vulgaris) they
>are selling in the US infringe POD-NERS' US patent on a
>yellow-colored bean variety. It's not surprising that the Mexican
>beans are strikingly similar to POD-NER's patented bean. That's
>because POD-NERS proprietary bean, "Enola" originates from the
>highly popular "Azufrado" or "Mayocoba" bean seeds the company's
>president purchased in Mexico in 1994. The Mexican yellow beans have
>been grown in Mexico for centuries, developed by generations of
>Mexican farmers and more recently by Mexican plant breeders. Last
>year RAFI released a report, Plant Breeders' Wrongs, which documents
>147 suspected cases of institutional biopiacy. In RAFI's opinion,
>the Enola bean patent is a textbook case of biopiracy, and it
>confirms - once again -- that the plant intellectual property system
>is predatory on the rights of indigenous peoples and farming
>communities.!
>
>
>Background
>In 1994, Larry Proctor, the owner of a small seed company and
>president of POD-NERS, L.L.C., bought a bag of commercial bean seeds
>in Sonora, Mexico and took them back to the US. He picked out the
>yellow-colored beans, planted them and allowed them to
>self-pollinate. Proctor selected yellow seeds for several
>generations until he got what he describes as a "uniform and stable
>population" of yellow bean seeds. Proctor applied for a US patent on
>November 15, 1996, barely two years after he purchased the yellow
>beans in Mexico.
>
>o On April 13, 1999 Larry Proctor won US patent no. 5,894,079 on the
>"Enola" bean variety. The patent claims exclusive monopoly on any
>Phaseolus vulgaris (dry bean) having a seed color of a particular
>shade of yellow. POD-NERS claims that it is illegal for anyone to
>buy, sell, offer for sale, make, use for any purpose including dry
>edible or propagation, or import yellow Phaseolus vulgaris of that
>description. (To be granted a patent, the inventor must meet three
>standard criteria. The invention must be new, useful and
>non-obvious. )
>
>o On May 28, 1999 Larry Proctor won a US Plant Variety Protection
>Certificate (No. 9700027) on the Enola bean variety. The PVP
>certificate states that the Enola dry bean variety "has distinctly
>colored seed which is unlike any dry bean currently being produced
>in the United States…" (To receive plant variety protection in the
>US, a variety must be new, stable, uniform and distinct.)
>
>In late 1999, armed with a US patent and a breeders' right
>certificate (double IP protection), Proctor brought legal suit
>against two companies that sell Mexican beans in the US, charging
>that they infringe his patent monopoly. Proctor has initiated legal
>suits against two companies that buy yellow beans from Mexican
>farmers and sell them in the US: Tutuli Produce (Nogales, Arizona,
>US) and Productos Verde Valle (Guadalajara, Jalisco, Mexico).
>Rebecca Gilliland, President of Tutuli Produce, explains, "In the
>beginning, I thought it was a joke. How could he [Proctor] invent
>something that Mexicans have been growing for centuries?" Tutuli
>Produce is a major buyer of two yellow bean varieties, "Peruano" and
>"Mayocoba" produced by an association of Mexican farmers, the
>Asociacion de Agricultores de Rio Fuerte.
>
>POD-NERS is demanding royalties of six cents per pound on the yellow
>beans entering the US from Mexico. According to Gilliland, because
>of the patent infringement charges, US customs officials are now
>inspecting Mexican beans at the US-Mexico border, taking samples
>from every shipment, at additional cost to her company. And because
>of the lawsuit, Gilliland says her company is already losing
>customers - which are important markets for Mexican farmers.
>
>Mexico Defends its Bean Heritage
>Beans are the principal source of vegetable protein consumed by
>Mexicans, and one of Mexico's basic food staples. Yellow "Azufrado"
>beans are especially popular in the Northwest region of Mexico where
>98% of surveyed Mexicans eat them.
>
>Outraged by the appropriation of Mexican germplasm and legal
>attempts to block Mexican bean exports to the US, the Mexican
>government announced in early January that it will challenge the US
>patent on the "Enola" bean variety. "We will do everything
>necessary, anything it takes, because the defense of our beans is a
>matter of national interest," declared Jose Antonio Mendoza Zazueta,
>under-secretary of Mexican rural development. The patent challenge
>will cost at least US$200,000 in legal fees.
>
>Mexico's National Research Institute for Agriculture, Forestry and
>Livestock (INIFAP) recently conducted a DNA analysis of POD-NERS'
>patented bean. The results indicate that the Enola variety is
>genetically identical to Mexico's "Azufrado" bean.
>
>Nothing New
>Larry Proctor, the "inventor" of the Enola variety, readily admits
>that his Enola bean is of Mexican origin. On his application to the
>PVP office, Proctor wrote, "The yellow bean, 'Enola' variety is most
>likely a landrace from the azufrado-type varieties." In his patent
>application, Proctor explains that he bought a bag of commercial
>beans in Mexico, planted them in Colorado (US), and did several
>years of selection. But Proctor claims that the Enola variety he
>developed is unique because of its distinctive yellow color and also
>because it was not grown previously in the US.
>
>Plant breeding experts disagree. Professor James Kelly, a bean
>breeder at Michigan State University and President of the Bean
>Improvement Cooperative, believes that the Enola patent is
>"inappropriate, unjust and is not based on the scientific evidence
>or facts."
>
>Kelly writes: "This yellow color described in the patent is typical
>of the yellow beans that have been grown for centuries in Mexico.
>The yellow beans in Mexico are widely grown and known under the
>names of Mayocoba, Azufrado or Sulfur, Peruano, Canaria and Canario,
>names that are all suggestive of the yellow color."
>
>There is ample documentation in genebank databases that bean
>varieties commonly known as Azufrado, Canario and Peruano are
>farmers' varieties collected in Mexico. RAFI's initial database
>search reveals that scores of Mexican bean varieties identified by
>those names are held by the International Center for Tropical
>Agriculture (Cali, Colombia), and virtually all of them are
>designated "in-trust" materials. Under the terms of the 1994
>agreement between the Consultative Group on International
>Agricultural Research and the UN Food and Agriculture Organization,
>"in trust" germplasm is maintained in the public domain and is not
>allowed to be included in any intellectual property claim (see list
>of Azufrado bean varieties - Appendix 1).
>
>Professor James Kelly dismisses the implication that the patented
>yellow color bean was not known, grown or recognized in the US prior
>to 1994. Kelly provides documented evidence that yellow beans (of
>Mexican origin) similar to Enola were grown and consumed in the US
>as far back as the 1930s.
>
>Kelly also questions the technical validity of the breeding and
>selection work described in the Enola patent:
>
>"On a scientific level, I would challenge the procedure they used as
>not being unique since beans are highly self-pollinating and they
>(inventors) simply grew pure homozygous seed of yellow beans from a
>seed mixture which self pollinated to reproduce itself. Nothing
>unique was invented, and this is a routine procedure used by bean
>breeders to maintain purity of genetic stocks and varieties. The
>inventors state 'a segregating population of plants resulted.' This
>is incorrect. They simply observed different plant and seed types
>since they planted a mixture of different beans that exhibited
>morphological, phenological and seed color differences. This is not
>a segregating population which must result from a cross pollination.
>Simply growing and selfing a specific seed color type hardly implies
>novelty or invention." (emphasis added).
>
>" All he [Proctor] did," Kelly told RAFI, "was multiply something
>that already existed. It's nothing unique in any sense of the word.
>To patent a color is absolute heresy."
>
>
>The Bottom Line: RAFI Commentary
>
>The Enola bean patent is technically and morally unacceptable. It is
>tragic that Mexico is now forced to devote scarce financial
>resources to challenge a patent that should never have been granted.
>It's difficult to decide who is more at fault: Is it the patent
>owner who claims that Mexican beans are infringing his US monopoly
>patent on seeds of Mexican origin? Or is it the US patent examiners
>who determined that Proctor was eligible to win an exclusive
>monopoly patent?
>
>It is tempting to dismiss the Enola bean patent as an "aberration",
>as nothing more than an absurdly ridiculous patent. Unfortunately,
>the patent demonstrates more than the fallibility of a single patent
>examiner. Last year RAFI released a report, "Plan Breeders' Wrongs"
>which documents 147 suspected cases of institutional biopiracy.
>Industry and Plant Breeders' Rights officials from Canberra to
>Geneva dismissed the charges, asserting that plant intellectual
>property abuses are remote and isolated cases. The reality is that
>the Enola patent is only the most recent example of a long line of
>abuses - of "systemic biopiracy." Mexican beans, South Asian
>basmati, Bolivian quinoa, Amazonian ayahuasca, Indian chickpeas -
>all have been subject to intellectual property claims that are
>predatory on the knowledge and genetic resources of indigenous
>peoples and farming communities.
>
>The Enola controversy starkly illustrates the danger of life
>patenting and the power of exclusive monopoly patents to block
>agricultural imports, to disrupt or destroy export markets for Third
>World farmers, and to legally appropriate staple food crops or
>sacred medicinal plants that represent the cultural heritage of
>millennia. Hopefully, the Enola patent will be easily challenged and
>promptly abandoned. But next time, it may not be so simple. The
>patent owner could be a corporate powerhouse with deeper pockets and
>a fleet of lawyers.
>
>Mexico and other nations of the South should bear in mind that the
>Enola patent is the product of precisely the same intellectual
>property regime that the US government aggressively promotes as a
>model for the rest of the world, through bilateral and multilateral
>channels. At the World Trade Organization, the US consistently
>pushes for stronger IP protection for plant varieties under the
>Trade-Related Intellectual Property (TRIPs) agreement. It is a
>tragic irony if Mexico and other governments react to biopiracy by
>rushing to patent and PBR every plant variety in sight. In doing so,
>they will put in place the very same predatory IP regimes that
>undercut the rights of farmers to save seeds, promote genetic
>uniformity, and threaten food security.
>
>Action Needed
>
>o US Patent 5,894,079 should be legally challenged and revoked.
>
>o US Patent 5,894,079 and US PVP # 9700027 may involve "in trust"
>germplasm. Under the terms of the 1994 agreement between the
>Consultative Group on International Agricultural Research and the UN
>Food and Agriculture Organization, "in trust" germplasm is
>maintained in the public domain and is not allowed to be included in
>any intellectual property claim. To insure the integrity of
>designated germplasm, FAO and CGIAR should take immediate steps to
>investigate, and, if necessary, to offer legal and financial support
>to defend the in-trust germplasm.
>
>o The long-overdue review of WTO TRIPs Article 27.3(b) is ultimately
>the most important forum for halting predatory practices.
>Governments should rescind the current requirement under Article
>27.3(b) to permit intellectual property protection for plants and
>microorganisms on the grounds that WIPO and UPOV regimes are
>predatory upon the knowledge of farming communities and indigenous
>peoples and upon the sovereignty of states over their living
>resources.
>
>o Governments, civil society organizations and other stakeholders
>convening at the Global Forum on Agricultural Research in Dresden in
>May should urgently review the impact of plant intellectual property
>on plant breeding and innovation, farming communities and biological
>diversity.
>
>Appendix 1
>
> *** Does the 'Enola' patent and PBR violate the FAO In-Trust
>Agreement? ***
>
> "The yellow bean, 'ENOLA' variety, is most likely a landrace from
>the azufrado-type varieties." -- From the application for US Plant
>Variety Protection Certificate # 9700027 on the Enola bean variety.
>
>The following table gives only a partial sampling of AZUFRADO
>varieties held in CIAT's international bean collection. ALL ARE
>DESIGNATED IN-TRUST ACCESSIONS. All are farmers' varieties collected
>in Mexico. Source: CGIAR Systemwide Information System for Genetic
>Resources (SINGER) database (http://singer.cgiar.org)
>
>Accession Identifier CGIAR Singer # USDA # Origin
>
>AZUFRADO CIATBEAN-G91 PI150941 Mexico
>AZUFRADO CIATBEAN-G817 PI197689 Mexico
>AZUFRADO CIATBEAN-G862 PI1201940 Mexico
>AZUFRADO CIATBEAN-G863 PI1201941 Mexico
>AZUFRADO CIATBEAN-G1818 PI1309802 Mexico
>AZUFRADO CIATBEAN-G1823 PI1309808 Mexico
>AZUFRADO CIATBEAN-G1824 PI1309810 Mexico
>AZUFRADO CIATBEAN-G1804 PI1309783 Mexico
>AZUFRADO CIATBEAN-G1807 PI309787 Mexico
>AZUFRADO CIATBEAN-G1808 PI1309788 Mexico
>AZUFRADO CIATBEAN-G1814 PI1309797 Mexico
>AZUFRADO CIATBEAN-G1815 PI1309799 Mexico
>AZUFRADO CIATBEAN-G2250 PI1311895 Mexico
>AZUFRADO CIATBEAN-G2254 PI1311899 Mexico
>AZUFRADO CIATBEAN-G2843 PI1319649 Mexico
>AZUFRADO CIATBEAN-G2868 PI1319678 Mexico
>AZUFRADO CIATBEAN-G2877 PI11319687 Mexico
>AZUFRADO CIATBEAN-G3456 none Mexico
>
>AZUFRADO Mayo CIATBEAN-G405 PI1312095 Mexico
>AZUFRADO del Yaqui CIATBEAN-G2403 PI1312093 Mexico
>AZUFRADO Bolito CIATBEAN-G2406 PI1312096 Mexico
>AZUFRADO Vallarta CIATBEAN-G1804 PI1309783 Mexico
>AZUFRADO Amarillo CIATBEAN-G21150 PI1309797 Mexico
>AZUFRADO Blanco CIATBEAN-G1815 PI1309799 Mexico
>AZUFRADO del Rio CIATBEAN-G2251 PI1311896 Mexico
>AZUFRADO de la Sierra CIATBEAN-G2253 PI1311898 Mexico
>
>**********
>
>Please note new address, phone and fax:
>
>Hope Shand, Research Director
>RAFI
>118 E. Main St., Rm. 211
>Carrboro, NC 27510
>
>tel: 919 960-5223
>fax: 919 960-5224
>email: hope@rafi.org
>http://www.rafi.org
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