UC and genetic engineering

A brilliant article on UC's genetic engineering patents and its legal shenanigans. -- BLJ

2-26-13
Pueblo Lands
UC: A University, or a Biotech Company?
Vernon Bowman
http://darwinbondgraham.wordpress.com/

Last month the University of California intervened in a high stakes U.S. Supreme Court case on the side of the agribusiness giant Monsanto Company by filing an amicus brief stating that the university would be harmed materially if Monsanto doesn’t prevail. On the receiving end of UC’s legal argument is Vernon Bowman, a 75 year-old grain farmer from southern Indiana who has been battling Monsanto in court for several years now. It was already a David v. Goliath kind of fight, pitting an elderly guy in overalls against a global corporation with a bottomless pocket for legal expenses; the entry of UC into the court’s deliberations makes that two Goliaths.

Monsanto alleges that Bowman stole from the company years ago when he purchased soybean seeds from a local grain elevator and planted them in his fields. The seeds were second generation crop from a previous year’s harvest, the original seeds of which had been purchased from Monsanto by a different farmer. This second generation seed stock was found to contain genes that made the soybeans resistant to glyphosate-based herbicides, known to the public as Roundup, making them “Roundup Ready” in Monsanto’s lexicon of trademarked phrases and proprietary industrial farming systems. Monsanto, after deploying agribusiness spies to detect the genes in Bowman’s fields, took the farmer to court. The handful of big biotech companies like Monsanto that dominate the trade in GMO seeds have prosecuted dozens of similar cases, winning nearly every time in lower courts, exhausting the legal resources of their opponents, and building support in case law for the idea that intellectual property ownership can extend into the very DNA of life, and that the legal owners of genetic “technologies” should have full control over the total reproductive power of the organisms they alter. Bowman is the farmer who fought back, all the way to the Supreme Court.

On February 19 the Supreme Court heard oral arguments in Bowman v. Monsanto. The tenor of the discussion, which lasted for just over an hour, was decidedly hostile to Bowman and his counsel, letting the lawyers from WilmerHale, Monsanto’s billion dollar law firm, sit back and relax. Chief Justices Roberts, Scalia, Breyer, and Ginsberg interrogated Bowman’s lawyer, often with obvious contempt in their voices, as he struggled to lay out an argument against Monsanto’s interpretation of US patent law. Under the law, Monsanto seems the clear favorite to win. US property laws have been molded for over two centuries by a profoundly anti-social doctrine emphasizing private control over technology and the financial gains to be made from invention. What’s relatively new is the extension of these propertarian doctrines into the essence of life itself, but thus far the courts and legal profession haven’t allowed the contradictions inherent in this obstruct their valorization of capital over life.

The University of California’s intervention is a big deal, even if it was to be expected. UC’s amicus brief (which was actually spearheaded by a Wisconsin university research foundation) was co-signed by other schools that have close ties to big agribusiness such as the universities of Iowa, Illinois, Florida, and Nebraska. Joining them are the lobbying organizations of these schools which work to influence intellectual property laws, and to obtain research subsidies for their institutions. The entry of this academic gang into the case creates the appearance of a broad public interest in upholding Monsanto’s legal position in part because these are mostly major public land grant universities.

UC and its co-signatories argue in their brief that Bowman’s seed saving stands to undermine scientific and technological “progress,” and could even harm the public welfare. By failing to penalize Mr. Bowman for buying and using saved seeds that contained a patented gene, UC argues that the Supreme Court:

“would impair technology transfer operations and ultimately deny the public the benefits of existing and yet-unknown artificial, progenitive technologies.  The first buyers of artificial, progenitive technology could make an unlimited number of identical copies of the invention without having to compensate the patentee for those subsequent copies.  In a short period of time, the market for the technology would become saturated with copies.  The patent owner and its licensees would effectively lose the right to exclude others from practicing the patented technology over the full statutory term of the patent—which is a fundamental right conferred by the patent system.  This would devalue existing patents directed to artificial, progenitive technologies and remove any incentive for private sector entities to license and develop future technologies of this kind.  Ultimately, the public may never benefit from such inventions.”

Surprised the UC would make such pro-privatization arguments? You shouldn’t be.

The University of California is a behemoth in the biotech industry, and behaves more like a for-profit corporation such as Monsanto, than a public college with a broadly social mission when it comes to research and technology. UC owns more patents than any other university in the world. In fact UC owns so many patents, and files for so many new applications each year, that only a few major corporations rank above it in the yearly quest to monopolize new ideas and creations.
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Total patents issued to UC on a yearly basis. (Source: UC, “Technology Transfer Annual Report, 2011.”)

Most of UC’s patents are medical and biotechnology-related, and many of them are leased to for-profit corporations to generate income for the different campuses, and the UC system as a whole. UC claims ownership of 3,900 different patents registered with the U.S. Patent Office, and another 3,729 patents registered with foreign authorities, according to the most recent report from the university’s Technology Transfer Office. Its even worth pointing out that the source I just cited, the UC’s Technology Transfer Office, is itself a direct product of UC’s voracious appetite to patent and sell its technological properties. Tech transfer is a full-time task run out of the UC president’s office, and through offices on each UC campus where staff and lawyers are busy finding ways to monetize the university’s knowledge production, and to penalize anyone who attempts to use UC inventions without a fee.

Over 1,477 of UC’s patented technologies are licensed, mostly to businesses which have commercialized them into various medical, agricultural, and consumer products. UC licenses patents to Monsanto, among many other biotech companies.

Since 2007 UC has pulled in about $100 million annually from royalty and fee income on these properties, and another $20 million from settlements with those who infringe on UC’s patents. Among UC’s most lucrative patents are GMOs modifying several kinds of strawberries, a citrus fruit, and a patent for recombinant DNA used to make somatotropin, the bovine growth hormone used in industrial cattle farming.
Total plant licenses issued by UC to biotech companies, including Monsanto. Many of UC's patented plant products involve transgenic manipulation of food crops.

Total plant licenses issued by UC to biotech companies, including Monsanto. Many of UC’s patented plant products involve transgenic manipulation of food crops. (Source: UC “Technology Transfer Annual Report, 2011.”)

In fact in 2004 UC sued Monsanto over the company’s use of the DNA material used to produce bovine growth hormone. In 2006 Monsanto agreed to pay UC $100 million to settle the case. UC’s royalties from its bovine growth hormone patent, about $5 million in 2011, are on top of the $200 million settlement, and UC’s patent runs until 2023. UC has also sued Genentec and other lesser-known biotech and pharmaceutical corporations over multi-million dollar patent issues.

UC spends about $28 million each year employing a team a outside lawyers to manage its intellectual property portfolio. Most of their work involves enforcement of patent infringement claims against companies like Monsanto.

UC and its fellow universities filled their amicus brief with appeals to the public good, and advancement of noble goals like feeding the world. Specifically they argue that “In the coming years, artificial, progenitive technologies [like Monsanto's GMO soybeans] promise to positively impact many aspects of Americans’ lives.  Reversal [allowing Vernon Bowman to use saved seeds containing Roundup Ready genes] here would undermine those positive impacts.”

The universities aren’t the only parties to file briefs with the court. Numerous other biotechnology companies, the lawyers who represent them, and other intellectual property proponents filed briefs supporting Monsanto. One of these briefs, offered by BayhDole25, illustrates the degree to which the partisans of GMO technology have confused their legal arguments with ethical and moral appeals:

“This compensation [from patents] in turn supports long-term investment in new technologies for the continued vibrancy of U.S. agricultural biotechnology, where the private sector now provides the lion’s share of R&D critical to continuing agricultural productivity gains. Like never before, innovative agricultural biotechnology companies play a key role in the commercialization and assimilation of advanced technologies for creation of economic and social value in the United States, as well as to meet global challenges associated with population growth and climate change.”

Similarly impossible to prove value-laden language permeates the other briefs in support of Monsanto. For whatever reason these corporations, including the university-corporations like UC, feel their case must rest on more than just the letter of U.S. patent law, which does read in their favor.

It’s perhaps worth noting here that BayhDole25, a group founded to promote technology transfer between universities and corporations, is run by a pharmaceutical industry lobbyist and a university researcher who claims to have been “the first person to receive a patent for a transgenic organism.” The Bayh Dole Act from which they take their name was passed by Congress in 1980. It was a watershed moment in terms of the incentives it created toward further privatization of U.S. universities. Prior to Bayh Dole university researchers using federal funds were required to hand over any patentable inventions to the U.S. government. After Bayh Dole schools could take out the patents on technologies arising from federal research conducted under their auspices.