New GMOs and patents: Poland’s IIlusory Solutions

It is forbidden to patent nature under patent law. However, the Commission seeks to effectively make this common practice by proposing to remove the obligation to publish detection and identification processes of plants genetically modified by NGTs, (and therefore patented). This obligation was introduced by the 2001/18 GMO Directive, to ensure farmers’ and consumers’ access to information, and to ensure that GMOs can be withdrawn from the market if they prove to be harmful to health or the environment in any way not identified in the pre-authorisation assessments. It also made it possible to prevent the abusive extension of the scope of patents to peasant or traditional seeds. If this obligation was to be removed, farmers and traditional seed producers who use or market seeds containing a genetic sequence that is similar to a patented sequence obtained by NGT, either naturally or as a result of contamination, will no longer have any means of opposing abusive patent infringement proceedings. Within a few years, the patents of the five multinationals that already control more than 60% of the global seed market will control more than 90% of said market, at the expense of food security and sovereignty.

Any patent holder necessarily has the means to identify possible infringements. This is the only way for them to guarantee the return on investment on the costs associated with NGT use, and on the processes for obtaining and defending their patent. However, these processes are not made public because they are covered by industrial secrecy. The Commission hides behind this confidentiality to claim that, in many cases, these processes do not exist. The Commission claims that plants which are patented because they have been genetically modified by NTGs in a way that does not occur naturally are similar to traditionally bred plants, which are unpatentable because they are obtained in a way that occurs naturally, by so-called ‘essentially biological’ processes. A gene modified by NGT can indeed be described in a patent in a way that does not allow its distinction from a natural gene. But it is whole plants and not isolated genes that are regulated and disseminated in the fields and in our food. NGTs inevitably generate multiple other modifications of the whole plant that can never all be eliminated and these signatures allow this distinction to be made.

Under pressure from the public and MEPs, the Commission recently agreed to fund two research programmes aimed at developing the regulatory processes for this distinction (Darwin and Detective). Perhaps the Commission hopes that they will solely look at the modified gene claimed in the patents and not at the whole genome and all the characteristics of the whole modified plants, nor at other non-genetic traceability procedures (e.g. organic products, controlled denominations of origin, labels, trademarks...). The Commission seems to want to ignore that these procedures are effective only when the penalties for fraud exceed the benefits that may result from fraud.

Instead of reinstating this obligation to publish detection and identification processes, Poland proposes very complex procedures that will allow the majority of GMOs derived from NGTs to be authorised without it being possible for farmers and traditional seed producers to identify them in fields and supply chains, or for States to ban their cultivation in their territory. Like those previously proposed by Belgium, many of these measures are also contrary to European competition law, which allows restrictions on trade only based on ethical, health or environmental issues, and not on concerns related to intellectual property. Beyond the issue of patents, the Polish proposal would also jeopardise organic, peasant and GMO-free sectors, and prohibit any withdrawal from the market in the event of health or environmental damage. ECVC calls on the Council to restore traceability obligations from the seed to the field and plate, which will also put an end to the seed industry’s maneuvers to deceive consumers by claiming that ‘NGTs’ are not GMOs, knowing full well consumers do not want to consume genetically modified food,.

Additional information on Poland’s proposal:

The amendments put forward by Poland aim to introduce patent provisions into the proposed NGT Regulation, including a "patent verification procedure" to be carried out by the European Commission to verify whether plants obtained by NGT are covered by one or more patents, covering the process or product. This procedure will be carried out based on a file submitted by the applicant. If, at the end of the verification procedure, the Commission concludes that a plant obtained by category 1 NGT (‘NGT 1’) is not covered by any patent, then it may be marketed as NGT 1 without any additional restriction. If one or more patents exist, then Member States may choose to adopt measures restricting or prohibiting the cultivation of GMOs from NGT 1 patented on their national territory (‘safeguard clause’) for socio-economic and agricultural reasons. These patented GMOs from NGT 1 must also be labelled with the words ‘covered by a patent’ or ‘patent under examination’, and this information must also appear in the national seed catalogues. Under certain conditions, for example if there is evidence of fraud in the verification procedure, the Commission could request that a patented NGT 1 plant be withdrawn from the market. These provisions cannot be effective if detection and identification procedures are not published. These procedures are essential in the case of a patent held by a person other than the applicant for authorisation, or in the case of accidental contamination in fields and sectors, or finally to allow post-market monitoring and possible withdrawals in the event of the occurrence of damage that was not identified during the pre-market assessment, which the Commission look to make increasingly light or even non-existent.