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  • From: "Tradingpost" <tradingpost@lobo.net>
  • To: livingontheland@lists.ibiblio.org
  • Subject: [Livingontheland] US Patent Office rejects company's claim for bean commonly grown by Latin American farmers
  • Date: Thu, 01 May 2008 09:38:31 -0600


Public release date: 30-Apr-2008
http://www.eurekalert.org/pub_releases/2008-04/bc-upo043008.php
US Patent Office rejects company's claim for bean commonly grown by Latin
American farmers
Controversial court patent case for simple yellow legume has become rallying
point for 'biopiracy' concerns

WASHINGTON, DC (30 APRIL 2008)—The United States Patent and Trademark Office
(USPTO) today rejected all of the patent claims for a common yellow bean that
has been a familiar staple in Latin American diets for more than a century.

The bean was erroneously granted patent protection in 1999, as US Patent
Number 5,894,079, in a move that raised profound concerns about biopiracy and
the potential abuse of intellectual property (IP) claims on plant materials
that originate in the developing world and remain as important dietary
staples, particularly among the poor.

A research center, the International Center for Tropical Agriculture (known
by its Spanish acronym, CIAT), which is supported by the Consultative Group
on International Agricultural Research (CGIAR), led the legal challenge to
the patent through the USPTO’s reexamination process.

“We are happy that the patent office has reached a final decision in this
case but remain concerned that the ex partes patent reexamination procedure
meant that these patent claims remained in force for such a long time,” said
Geoffrey Hawtin, Director General of CIAT, which has been fighting the patent
since 2001. “For several years now, farmers in Mexico, the USA and elsewhere
have unnecessarily endured legal threats and intimidation for simply
planting, selling or exporting a bean that they have been growing for
generations.”

At issue is a hearty and nutritious yellow bean—similar to the pinto
bean—that is known to plant breeders as Phaseolus vulgaris but is commonly
called azufrado or Mayocoba bean by Latin American farmers and consumers. In
the 1990s, a Colorado man, Larry Proctor, bought some beans in a market in
Mexico and after a few years of plantings, claimed he had developed what he
called “a new field bean variety that produces distinctly colored yellow seed
which remains relatively unchanged by season.” He dubbed it the “Enola bean,”
filed a patent application and obtained a 20-year patent that covered any
beans and hybrids derived from crosses with even one of his seeds.

Under USPTO rules, material published before a patent application that was
not brought to the attention of the patent examiner can be used to reverse a
granted claim. CIAT sought a reexamination of the Enola patent. The Food and
Agriculture Organization (FAO) of the United Nations and ETC Group (formerly
RAFI, the Rural Advancement Foundation International), a Canada-based
nongovernmental organization dedicated to conservation and sustainable use of
biodiversity, also denounced the Enola bean patent.

CIAT was able to dispute the inventor’s claims to a unique color by providing
published evidence of 260 yellow beans among the almost 28,000 samples of
Phaseolus in its crop “genebank.” At least six of the CIAT varieties were, to
most observers, identical to the bean described in Proctor’s patent documents
on the basis of color and genetic markers. CIAT also put forward publications
to show that the claims in the patent application took credit for research
already widely available in scientific literature and thus claims made
regarding the breeding of the bean in his patent also failed to meet the
patent office’s statutory requirements for “non-obviousness and novelty.”

In addition, CIAT pointed out that Proctor had not obtained a permit to
export the beans from Mexico and that a version of the bean variety in
question had been released to the public by the Mexican government in the
1970s.

Yet Proctor actively enforced his patent. At one point, the patent-holder’s
US$0.6-claim on every pound of yellow beans sold in the United States caused
a steep decline in exports of such beans from Mexico to the USA, according to
Mexican government sources.

The patent office issued a preliminary decision in 2003 rejecting all the
patent claims and gave a final rejection in December 2005. Proctor filed an
appeal through the USPTO, and in accordance with USPTO rules, the patent
remained in force while the appeal was being considered by the Board of
Patent Appeals and Interferences (BPAI). Proctor can still appeal the USPTO
decision in the US federal courts, all the way to the Supreme Court venue, a
costly move; if he so chooses.

“We understand that individuals and companies have a right to patent what are
clearly novel agriculture innovations,” said Hawtin. “But when food crops are
involved, particularly crops that have been used for years, governments have
a duty to ensure that they have been presented with a clearly distinct and
novel discovery and that the plant material used in the research and
development was lawfully obtained. Agricultural researchers have a
responsibility to make sure that publications are easily available to patent
examiners.”

CIAT officials said that, while they were concerned about the immediate
economic impact of the Enola patent, more broadly, they worried that the
patent would establish a precedent threatening public access to plant
germplasm—the genetic material that comprises the inherited qualities of an
organism—held in trust by CIAT and research centers worldwide.

The CIAT genebank is one of 11 maintained worldwide by the CGIAR, where crop
materials such as seeds, stems and tubers are held in trust with the United
Nations Food and Agriculture Organization (FAO). The genebanks house a total
of about 600,000 plant varieties in publicly accessible collections, which
are viewed as the pillar of global efforts to conserve agriculture
biodiversity and maintain global food security. Plant breeders in both the
public and private sectors are constantly seeking access to these resources
to help them breed new types of crop varieties, particularly when existing
varieties are threatened by pests or disease.

“Hopefully, this case can help guide future reviews of patent applications
and future preventive actions on the part of the CGIAR Centers, so that
farmers who have been growing a particular variety for over 100 years will
not wake up one day to discover that their traditional crops have suddenly
become someone else’s intellectual property,” said Victoria Henson-Apollonio,
Manager of the CGIAR Central Advisory Service on Intellectual Property
(CAS-IP), the CGIAR office charged with assisting the Centers on matters of
IP.

CIAT’s patent challenge is part of the CGIAR’s ongoing effort to ensure that
intellectual property claims regarding plant materials do not falsely seek to
privatize materials already in widespread use. The challenge was endorsed by
the FAO and the Genetic Resource Policy Committee of the CGIAR.




  • [Livingontheland] US Patent Office rejects company's claim for bean commonly grown by Latin American farmers, Tradingpost, 05/01/2008

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