Greenpeace Declares Victory Against Wheat Patent

Except it wasn't really a patent. And Greenpeace didn't really have anything to do with it

"Monsanto's wheat patent withdrawn in Europe following Greenpeace opposition," crowed a Greenpeace press release in October. "In a clear victory for Greenpeace and Indian farmers, European Patent office (EPO) on 23rd September revoked the patent on Indian 'Nap Hal' wheat variety following a legal opposition filed by Greenpeace at the EPO in February," it continued.

The release is artfully constructed to give the impression that the much-demonized corporate bad guy, Monsanto, had been beaten by the righteous claims of Greenpeace activists and poor Indian farmers. But that's not what happened at all.

Greenpeace's claim fails on almost every level. First, Monsanto was not the patent holder. Monsanto had sold not only the rights to the wheat variety but also its entire European wheat and barley business to the French seed company RAGT Genetique S.A. in May 2004. "Yes, we know that the patent went to another company," says Divya Raghunandan, Greenpeace's chief campaigner on the issue in India. "When we opposed it in January, it was Monsanto's. Putting Monsanto's name in the press release is more like a reference to our earlier action."

Greenpeace also claimed that the EPO had "revoked the patent on Indian 'Nap Hal' wheat variety." But that's not right either. "Indian farmers raise soft-milling varieties all over the place," says Raghunandan. "We don't believe that Monsanto should have been awarded a patent because what it did was not really an invention." Raghunandan thinks patents should only be awarded when an invention is new and non-obvious.

However, new crop varieties are treated differently. According to Jeff Rodwell, an intellectual property rights lawyer in London with the firm Reed Smith, new plant varieties are not patented, but given "plant variety rights" (PVR). Patents are awarded for novel "inventions," whereas PVRs are awarded for the creation of a new strain of plant exhibiting attributes not hitherto seen in a created thing. The genes in the new wheat variety were certainly not "invented," but they were put together in novel combinations never before seen in nature. (This can be done by traditional crossbreeding as well as by isolating and inserting specific genes directly to create a new variety.) But for brevity's sake let's just call them patents.

In this case, Unilever, from which Monsanto had acquired the original patent application in 1998, had created a new strain of wheat with novel soft-milling qualities by crossbreeding European wheat with an Indian variety. So the PVR was awarded not "on Indian 'Nap Hal' wheat variety," but on a novel variety of European wheat that incorporated the soft-milling characteristics. "You could equally well say that the EPO awarded a PVR on a European strain of wheat," said Rodwell. In other words, Greenpeace's claim that Monsanto—or Unilever, or RAGT—had merely piratically "patented" poor Indians' traditional Nap Hal wheat is false.

Greenpeace's challenge was part of its ongoing "No Patents on Life" campaign. Greenpeace objects to corporations using traditional crop varieties as sources of novel characteristics for commercial varieties. They call this "biopiracy." Greenpeace activists argue that corporations take genes from landraces and then sell improved crop varieties back to the farmers without having paid the traditional farmers for the genes they took.

This is silly—because Indian farmers, or any other farmer, can simply choose not to buy seeds from Monsanto, RAGT, or anyone else and just keep growing their traditional varieties. Farmers are not stupid; they will buy only what they think will improve their yields and incomes. Farmers don't buy seeds to improve Monsanto's profits; they buy seeds to improve their own profits. The farmers weren't able to liberate the characteristic by crossbreeding or biotechnology, so seed corporations are doing them a favor by placing desired genes into superior varieties.

Finally, note the crafty phraseology of the press release headline. The patent is withdrawn "following Greenpeace opposition." For that matter, the patent was also withdrawn "following" the Democratic National Convention and "following" the summer solstice in the northern hemisphere. On September 10, 2004, RAGT sent a letter to the EPO that "requested that the patent be revoked." Does Greenpeace have any evidence that its opposition led to this revocation? "We don't have any direct evidence about why the patent was withdrawn," admitted Raghunandan.

But Claude Grande, the vice managing director of RAGT Genetique, tells me: "It was entirely an internal company decision. We asked that the patent be withdrawn purely for commercial reasons—we do not think that we would be able to make any money trying to sell those types of seeds. Greenpeace's opposition had nothing to do with the decision." Hey, claim credit for a dubious victory and move on—that's the Greenpeace way. Raghunandan says that the group may now try to challenge Monsanto's American patent on the wheat variety. Greenpeace activists had better hurry up—when I asked Monsanto spokesman Chris Horner about it, he said, "Well, we're trying to get out of the wheat business and we're not doing anything with those patents at all now." Another Greenpeace "victory" is in the offing.