 A
US citizen who claimed he had "invented" a new bean,
and took out a patent on the yellow "Enola" variety
has once again had his claim defeated in the courtroom. But
despite the result, the case raises important questions about
the effectiveness of biopiracy laws, and their ability to adequately
protect small farmers.
On 10th July, the U.S. Court of Appeals for the Federal Circuit
ratified the decision made by the United States Patent and
Trademark Office (USPTO)
and again ruled in favor of Latin American farmers—the
true owners of the bean—represented by CIAT.
This new ruling confirms, for the fifth time, what CIAT has
demonstrated since the controversial patent was granted in
1999-that the bean in dispute, known by Mexicans as Mayocoba
or "sulphured bean" because of its yellow color,
is an ancestral legacy from Peru. CIAT, a not-for-profit organization
located in Palmira, Colombia, safeguards the world's largest
bean collection—more than 35,000 varieties.
The alleged "inventor" of the bean in question
is Larry Proctor, who christened it "Enola" in homage
to its wife. For USPTO it is simply patent no. 5,894,079.
But the incorrect patent has stood for nearly half the life
of a legitimate patent (20 years), which begs the question,
did Proctor really lose?
The story began in 1994 when Proctor purchased a package
of yellow beans in Mexico and planted them on his farm in
Montrose County, Colorado. Two years later, he filed for an
exclusive monopoly patent in the country. In April 1999 Proctor
was granted the patent, which gave him the right to exclusively
use the bean for 20 years. He immediately brought legal suits
against two Mexican companies that were exporting the bean
to the United States as well as 16 companies and farmers of
Colorado, alleging that they were violating his rights.
CIAT decided to file a formal request for the re-examination
of the controversial patent. This action was endorsed by the
Consultative Group on International Agricultural Research
(CGIAR)
and the Food and Agriculture Organization of the United Nations
(FAO).
"From the beginning we had doubts about two fundamental
points of the patent: the bean had not been improved nor was
there novelty," said Daniel Debouck, CIAT specialist
in genetic resources and head of the Center's Germplasm Bank.
The 15 initial claims made by Proctor were refuted by CIAT
with scientific evidence. The Center labeled what Proctor
had done as an "expropriation" of the bean from
Mexican farmers and a violation of Mexico's sovereign rights
over its genetic resources, as recognized by the United Nations
Convention on Biological Diversity.
In 2003, USPTO failed in favor of CIAT, but Proctor's lawyers
immediately presented another action of review enclosing 43
new points demanding that the patent be respected.
During all this time, Proctor enforced his patent. According
to sources of the Mexican government, at a certain time, the
owner of the patent demanded that he be paid US$0.6 for each
pound of yellow bean sold in the United States, causing the
exports of that product from Mexico to the United States to
collapse.
Since then, the legal dispute has been slow and on five occasions
USPTO has ruled in favor of CIAT, the last time being on 30
April 2008, when the controversial patent was revoked. However,
Proctor again resorted to a superior instance: the Court of
Appeals for the Federal Circuit.
Last 10 July, this Court ratified USPTO's decision. But will
this be definitive? Within the United States legal system,
Proctor can appeal before the maximum instance, the Supreme
Court, but experts believe that he will again lose. "He
does not have the bases to refute the evidence provided by
CIAT," says Debouck.
All this has generated concern among the Center's scientists,
who fear that this precedent could endanger the public access
to the germplasm of many plant species safeguarded by CIAT
and other research centers through an agreement with FAO and
which belongs to mankind.
"This case continues to send strong messages to Latin
America so we are on the alert against the biopiracy,"
said Ruben Echeverría, CIAT Director General. "Similar
situations have already occurred and, in light of this, it
is our responsibility to protect developing countries. CIAT
will continue to frustrate the action of pirates," he
added.
In an interesting twist. If Proctor does decide to take his
case to the Supreme Court, it could coincide with the term
of Supreme Court hopeful Sonia Soromayor, a lawyer of Hispanic
decent, which could make for an interesting showdown.
Contact:
- Daniel Debouck (d.debouck@cgiar.org),
Head, Genetic Resources Unit, CIAT.
Phone: +57 (2) 4450000 (ext. 3039).
- Neil Palmer (n.palmer@cgiar.org),
Public Awareness Officer, CIAT.
Phone: +57 (2) 4450000 (ext. 3008).
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