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CCall to Support Farmers' Rights
Rural Advancement Foundation International 101 Hillsboro St., Rm.
5, P.O. Box 655, Pittsboro, North Carolina USA 27312 Tel: 919
542-1396 Fax: 919 542-2460 e-mail: rafiusa@igc.apc.org
TO: Biodiversity/Biotechnology Activists and
Family Farm Advocates
FROM: Hope Shand, RAFI
RE: We are Seeking Interested Groups to Join
Us in Amicus Curiae Brief in support of
Winterboers and Farmers Rights
If you agree with our position--please
join the cause. It will not cost you
anything, and you don't need to do any
additional work.
DATE: 7 July 1994
RAFI is an international research and advocacy organization, and
not usually in the business of fighting legal battles. Our role in
this effort was made possible with the valuable help of June Reed,
a farmer in Pennsylvania who stepped forward to assist RAFI in the
drafting of the brief, the pro bono assistance of William C.
Lane, an attorney in McLean, Virginia who is a member of the
Supreme Court bar, and Luis Acosta, an attorney with William H.
Bode & Associates who is representing the Winterboer family.
In a few weeks the US Supreme Court will hear the case of Asgrow
Seed Co. v. Denny Winterboer and Becky Winterboer, Supreme Court
Case No. 92-2038. We will submit an amicus brief in support of the
Winterboer farm family affirming the decision of the US Court of
Appeals for the Federal Circuit in Asgrow Seed Co. v. Denny
Winterboer and Becky Winterboer, 982 F. 2d 486 (1992). We believe
the Court's interpretation of the "farmer's exemption" is of
central importance in the ongoing struggle over who will control
the food supply of the nation and the world.
The Asgrow vs. Winterboer case involves the right of farmers to
save and sell limited quantities of proprietary seed, a
traditional legal right under the Plant Variety Protection Act of
1970. In recent years, Asgrow (a subsidiary of Upjohn
Pharmaceutical), Pioneer and other seed companies have brought
lawsuits against dozens of farmers for what they believe is
illegal "brownbagging" of proprietary seed. Our amicus brief will
argue in support of the Winterboers. Briefly, here's why we
believe this is important, and the major issues we will put
forward in the brief:
The intent of Congress in establishing the PVPA was to uphold and
preserve the farmer's right (farmer's exemption) to save and sell
limited quantities of proprietary seed. This was part of the
bargain made by Congress in granting intellectual property rights
for plant breeders. We will argue that Congress established the
Plant Variety Protection Act precisely because it provides
breeders with limited monopoly rights over the production,
marketing and sale of their varieties (limited in contrast to the
utility patent system which does not contain a farmer or
researcher exemption). PVPA contains two important limitations:
1) It expressly maintains the availability of genetic resources
for crop improvement by allowing breeders to freely use each
others protected varieties for further breeding experiments, and
2) it permits farmers to re-use seed from their harvests, without
having to pay royalties or ask permission, as long as they are not
in the business of re-selling proprietary seed.
Plant varieties are distinct from many kinds of industrial
inventions because no plant breeder starts from scratch in
developing a new variety. Modern plant breeders are building on
the accumulated success and innovation of generations of farmers
and breeders. Historically, US farmers have played a major role in
contributing to the introduction and further development of exotic
germplasm. In 1897, for example, the US Department of Agriculture
freely distributed 22 million packets of seeds to US farmers. The
goal of this federal program was to utilize the ingenuity and
skills of the nation's farmers in geographically diverse regions
of the nation to introduce, experiment and cultivate thousands of
novel plant varieties throughout the land. It was the farmers'
success in selecting and breeding these crops that helped to build
the agricultural base of the United States. By 1924, the seed
industry had persuaded Congress to end free distribution of seeds,
and in 1930 industry lobbying culminated in the Plant Patent Act.
In 1970, after years of seed industry lobbying, the Congress
passed the Plant Variety Protection Act. It is a well known fact
that companies that are receiving proprietary protection for new
plant varieties today are using public germplasm in their breeding
programs. Given the historic role of generations of farmers and
public sector breeders in contributing to the development of
improved germplasm, it is imperative that a balance be maintained
between the rights of corporate plant breeders and farmers.
The bottom line is that there was clear intent on the part of
Congress to allow for the farmer's exemption. This was a
protection not only for farmers, but for society, in that it
expressly limits the right of plant breeders to gain monopoly
control over new plant varieties. Whether or not the Winterboer's
"abused" the farmer's right to sell proprietary seed, they were
legally permitted to do so under the PVPA. If the law needs to be
amended, it is the role of Congress, as custodians of the public
interest, to do so.
If your organization is interested in signing on to the brief,
please contact Hope Shand or Kathy Zaumseil at the RAFI office in
Pittsboro. telephone (919) 542-1396. We will send you the
complete text of the brief (about 10 pages), for your review. (It
would be easiest if we can do this on e-mail.) At this late date,
we can't entertain any major changes in the text. In other words,
this is a rather un-democratic process--but we're working on a
very tight deadline. We will also need a two or three sentence
description of your organization, that will be included on the
brief. We apologize for the very late notice--please let us know
if you can sign on!
P.S. As most of you know, we are also fighting a similar battle in
Congress. The seed industry is pushing hard to pass bills that
will restrict the farmer's right. We oppose these bills, but we
believe that Congress is where the issue should be decided--not in
the courts. Amendments to the PVPA have already passed the Senate,
but are still pending in the House. It's not too late to contract
your rep. in Congress about this issue. We can provide additional
information to anyone who needs it.
BRIEF OF THE RURAL ADVANCEMENT FOUNDATION INTERNATIONAL IN SUPPORT
OF RESPONDENTS
STATEMENT OF INTEREST OF AMICUS CURIAE
The Rural Advancement Foundation International-USA
("RAFI") is a private, non-profit organization that is dedicated
to the preservation of family farms, the conservation and
sustainable use of agricultural biodiversity, and the socially
responsible use of new technologies. RAFI is concerned with the
loss of genetic diversity in agriculture, and with the impact of
plant intellectual property rights on U.S. agriculture and world
food security.
RAFI has received the consent of the parties in this case
to present its views.
SUMMARY OF ARGUMENT
The Federal Circuit's decision in Asgrow Seed Co. v.
Winterboer, 989 F.2d 478 (1993), reaffirming that the Farmers'
Exemption to the Plant Variety Protection Act allows farmers to
save and sell seed to their neighbors as long as the primary
occupation of both parties is farming, is consistent with
Congressional intent in passing the PVPA, with the limited nature
of the property right established by the PVPA, and with the public
policy that seed companies' monopolization of rights to germplasm
should not be absolute. The decision should be affirmed.
[Note -- Some of the arguments in the present "Summary of
Argument" need to be incorporated into the main argument]
ARGUMENT
1. The Federal Circuit's Interpretation of the
Farmers' Exemption to the PVPA is Consistent With
Congressional Intent
The Federal Circuit's interpretation of the Farmers'
Exemption, which recognizes the right of farmers to save and sell
seed to farming neighbors, is consistent with the legislative
balance struck by Congress in passing the PVPA. Prior to the 1970
passage of the Act, seed companies did not enjoy any property
right in novel, sexually-reproduced plants. When Congress
included the Farmer's Exemption in the PVPA, it did so to
safeguard a right that had belonged to the farmer since the
beginning of agriculture, namely, the right to save seed produced
by the farmer and to dispense with such saved seed as he or she
saw fit, as long as the farmer did not enter into the seed
business.
Inclusion of the Farmer's Exemption was part of the
legislative compromise that enabled the PVPA to pass Congress.
Indeed, the United States Department of Agriculture, represented
by Undersecretary of Agriculture Phil Campbell, insisted that
farmers be allowed under the PVPA to save their own seed and sell
some of this seed to neighbors. Without this provision, the USDA
would not have supported passage of the Act. [cite]
Apart from the USDA's conditions on support of the PVPA,
the Act also met significant outright opposition. Andrew Klein, a
patent lawyer and chairman of the committee of the American Bar
Association that was formed to investigate the bill, told Congress
that a majority on his committee opposed passage of the PVPA.
Members of the committee feared that the Act would delay the
release of new varieties, would restrict access to germplasm and
the free exchange of genetic material, and would result in higher
seed prices. [cite]
There was clear intent of the part of Congress to allow
farmers to save seed and to sell such seed to their neighbors.
The farmer's exemption expressly limited the right of plant
breeders to gain total monopoly control over new plant varieties,
and thereby protected not only farmers, but society as a whole.
[cite]
When amendments to the PVPA were proposed in 1980 to cover
six previously excluded species, opposition was widespread and
heated. [elaborate and cite] The 1980 amendments eventually were
enacted, but the widespread opposition exhibited in the debates is
one reason why some seed companies have begun seeking to extend
their property rights through the courts rather than the
legislature, as Asgrow has sought to do in this case. [cite]
2. The Limitation on Seed Companies' Monopolization
of Genetic Resources Embodied in the Farmers' Exemption is
Consistent With Public Policy
There are very important differences between utility
inventions, which are the subject matter of patent law, and
sexually reproducing plants, the subject matter of the PVPA.
Unlike the objects of patent protection, sexually reproducing
plants are capable of self-reproduction. Just as there are
important differences between physical inventions and new breeds
of plant varieties, there are important differences in the
property rights associated with ownership of patents and PVPA
certificates. The purchase of a patented product brings the right
to use the product but not to reproduce it. But the purchase of a
variety of seed certified under the PVPA brings the right to grow
the seed for nonreproductive uses as well as reproductive uses
under the Farmers' Exemption. The Farmers' Exemption thus allows
farmers to save seed they have produced, and to sell such saved
seed to other farmers.
While ownership of all forms of property embodies the
right to exclude others from using property, the right of
ownership of plants typically does not extend to controlling the
others' use of the fruits of plants, once possession of the fruit
is transferred. For example, ownership of an apple tree does not
give the owner the right to determine how all apples the owner
sells to others will be used, such as whether the seeds can be
used to grow trees. Generally accepted social norms provide that
plant species and varieties should not be subject to private
ownership but are part of a common heritage, and that "products of
nature" are not patentable. The Farmers' Exemption, by providing
that farmers may save seed and sell such saved seed to neighbors
as seed, reflects this social norm.
Historically, the American farmer played a major role in
contributing to the introduction and further development of exotic
germplasm. In 1897, the U.S. Department of Agriculture freely
distributed 22 million packets of seeds to U.S. farmers. The goal
of this federal initiative was to utilize the ingenuity of the
nation's farmers in geographically diverse regions to introduce,
experiment and cultivate thousands of novel plant varieties
throughout the land. The farmers' success in selecting and
breeding these crops helped build the agricultural base of the
United States. By 1924, the seed industry had persuaded Congress
to end free distribution of seeds, and in 1930 industry lobbying
culminated in the Plant Patent Act, 7 U.S.C. $ _____, et seq. The
surge of genetic diversity which flourished with seed collecting
and distribution programs and by immigration withered as farmers
gradually stopped saving their own seed and began purchasing
marketed varieties. Not only did this diminish farmers'
self-reliance, but a portion of the germplasm itself, with all of
its adaptation to different American environments, pests, diseases
and cultures became extinct, never again to be seen or used by a
farmer or professional plant breeder.
In the context of commercial developments and the
concentration of seed production into the hands of a small number
of seed companies, advances in science and plant breeding
techniques helped cast a new light and a new value on genes.
"Genetic erosion," the loss of genetic diversity through
extinction, is an unintended consequence of modern plant breeding.
To the extent that a breeder produces a successful variety, it can
displace genetic material needed for future breeding programs.
The loss of genetic diversity means the loss of valuable genes.
This transformation of a once abundant resource into a rare one
raises the issue of how to guarantee access to the shrinking
resource of genetic material, as well as the issue of who has the
right to exercise control over this resource.
Even with the Farmers' Exemption, the PVPA has resulted in
tremendous consolidation within the seed industry with a resultant
loss of options regarding not only genetic diversity but also
farmers' choice. A 1985 study on the PVPA concluded that since
the 1970 passage of the Act, the PVPA has contributed to the large
number of mergers and acquisitions in the U.S. seed industry.
[footnote cite] Transnational pharmaceutical and agrochemical
companies bought up hundreds of regional and family-owned seed
companies. During the 1970s and 1980s, more than 500 family-owned
seed firms were bought out by transnational corporations
worldwide. The global seed market is largely controlled by no more
than 10 to 20 firms, with the top 10 companies controlling 20
percent of the market and the top 15 controlling 25 percent. The
rise of the large corporate sector in controlling research and
development for the future of agriculture has been accompanied by
a precipitous decline the public sector's role in this field. As
a result many old varieties have disappeared forever, displaced in
the seed catalogues by a limited selection of new varieties sold
as a package with herbicides and fertilizers. Adoption of the
severe limitation on the Farmers' Exemption sought by Asgrow would
exacerbate these disturbing trends.
Not only has the PVPA resulted in a loss of genetic
diversity, but it has also resulted in a loss of farmers' choice,
and this loss would be exacerbated if Asgrow's narrowing of the
Farmers' Exemption is adopted. Because food production is an
economic field vital to human survival, this loss of choice not
only affects farmers but society as a whole. The PVPA has
resulted in farmers having fewer choices of seed to select from,
and having to pay significantly higher prices for those seeds that
are available. Asgrow's proffered narrowing of the Farmers'
Exemption would enable the seed industry to dictate to farmers how
they dispose of their harvest.
The range of choices available to the American farmer made
American agriculture great, and enabled America to feed not only
herself but the World. The American farmer had at his/her
disposal the richest selection of seeds, many tailored to deal
successfully with that farmer's neighborhood: its soil, its
pests, its diseases. A strict interpretation of the farmers'
exemption would further deprive farmers of choices, which in turn
would further compromise the farmer's ability to do his/her job.
Should farmers lose the right to save, swap or sell
proprietary seed with farmer neighbors, they will have no choice
but to return year after year to the seed companies for seed.
Farmers essentially would become mere renters of germplasm, which
would create, in effect, a new form of sharecropping.
Concomitantly, adoption of Asgrow's narrow interpretation of the
Farmers' Exemption would also foster greater concentration in the
ownership and control of germplasm by transnational seed and
agrochemical corporations. Not only would this entail an increase
in the cost of seed to farmers,1 but it would also entail
surrender of control of a critical aspect of peoples' lives to
multinational corporations. The Farmers' Exemption, as envisioned
by Congress, acts as a partial brake on this concentration of
power over germplasm resources by multinational seed companies.
When the responsibility for maintaining stores of crop
germplasm is placed in the hands of seed companies, the
responsibility for maintaining the quality and viability of seed
is also placed in their hands. This responsibility at times has
proven too much for seed companies to handle. For example, in a
recent widely- publicized scandal, an American seed company sold
the Ukrainian Government 195,000 bags of seed corn. This, with a
normal germination rate, was expected to yield a harvest of
approximately one million tons of food corn. Instead, according
to the government, Ukraine has realized a harvest of only ten
thousand tons, one percent of the expected amount. This 99% crop
failure was caused by failure of the seeds to germinate.2
Government policies that reduce the options of farmers to respond
to the vagaries in growing conditions, disease and germination --
of which Asgrow's proffered limitation on the Farmers' Exemption
is an example -- will make agriculture more and more susceptible
to these types of disasters.
This Court's interpretation of the Farmer's Exemption is
of central importance in the ongoing struggle over who will
control the food supply of the nation and the world. Until
recently, control over the food supply has been disbursed among a
multitude of farmers, but now seed developers seek to subjugate
the rights of farmers in favor of large corporate interests.
Congress included the Farmer's Exemption in the PVPA to balance
the interests of farmers and developers of seed. This Court
should uphold the intent of Congress and affirm the right of
farmers embodied in the Farmer's Exemption to save, sell, and swap
seed.
CONCLUSION
For these reasons, the Rural Advancement Foundation
International-USA as amicus curiae urges this Court to affirm the
decision of the Federal Circuit in this case.
Respectfully
submitted,
William C. Lane
Masselli & Lane,
P.C. 8260
Greensboro Drive
Suite 260 McLean,
Virginia 22012
(703) 556-9550
Counsel for Amicus
Curiae
RAFIUSA@IGC.APC.ORG