Mi Otro Blog

Mi otro Blog

sábado, febrero 04, 2012

Ley obtentores vegetales

Uno de los puntos que presentamos en la Comisión de Agricultura de la Cámara de Diputados fue la solicitud de una clausula de exclusión en la Ley de Obtentores vegetales que actualmente se discute en el Congreso. Una clausula que resguarda el derecho de las abejas.

"Excluir derechos del obtentor vegetal toda forma de presencia de su variedad protegida (polen, néctar, secreciones propias o de insectos que las habiten) en los productos apícolas. Un apartado donde se resguarde los derechos de las abejas de visitar las flores que les parezca apropiado o estén disponibles".

Sería aún más terrible el escenario donde pese a situarnos a más de 3 y/o 10 km de distancia de los cultivos declarados de semilleros transgénicos, nuestra miel saliera estigmatizada de todas formas, y nos cae encima el obtentor vegetal clamando su tajada de la producción. Fuck off!

Pero se reactiva esta conversación en la Bee-L, ahora explorando la posibilidad de pantentar una abejas GMO/OGM y las repercusiones que tendría en la cruza abierta de nuestras reinas.

From: Mike Rossander
Date: Sat, Feb 4, 2012 at 8:39 PM
Subject: Re: [BEE-L] The GMO Neonic Ready Bee

re: " There have been non-GMO crops cross pollinated with the neighbors GMO crops and Monsanto in these cases has sued the non-GMO farmer for harvesting his own seed since it now has the patented Gene."

I get so very tired of this story. Yes, the story is real but that description is a gross oversimplification.

- Monsanto invested a great deal of money to develop Roundup-resistant seeds.
- Monsanto sought and was granted a patent on the seed. (Personally, I am skeptical of the idea that living organisms should be patentable but that is the current law.)

- Monsanto sells the seed only with a strict contract clause that prohibits the buyer from saving, selling or replanting subsequent generations of seed. (Again, there can be reasonable debate about whether this is a good social policy but it is clearly stated up front as a condition of the contract.)
- When Monsanto discovers that a farmer has saved seed regardless, they do sue the farmer for breach of contract.

Now the complication. Two actually:

1) Some farmers have claimed that they did not save seed (or buy from someone who saved) and that the Monsanto gene must have gotten into their seed through cross-pollination. It is possible that the farmer is telling the truth. It is also possible that the farmer is lying. I would like to believe that all farmers are pillars of society but as a group they are as honest (and dishonest) as the rest of society. It is up to a jury to decide whose testimony credible and who, if anyone, is lying. Unfortunately (from the point of view of an outside observer), every case that I'm aware of settled before going to trial. We have not yet had a finding of fact on comparative credibility.

2) Under existing intellectual property laws, you can only retain your right to your intellectual property if you "vigorously defend" your rights from infringement. If you allow your copyright or patent to be violated and do nothing about it, you can be legally presumed to have waived the right - not just in that case but in _every_ case. It is this absurd twist in the law that results in Monsanto and the RIAA suing their own best customers. They know that if they don't at least go through the legal motions of defending the patent or copyright, they risk losing it altogether. Their entire investment, not just locally, but on a worldwide basis, is rendered moot and valueless. While I agree strongly that this result is ridiculous, the fault is not with the intellectual property owner - or at least no completely their fault. Congress deserves a large part of the blame for creating the situation where they must attempt to defend their right to
such ridiculous and counter-productive extents.

So back to bees. Could this happen if a manufacturer patented a special bee, perhaps with a pesticide resistance? Yes. It might not be Monsanto but it is not an impossible concept. And yes, we would be equally at legal risk if our queens flew out and were naturally mated with drones from a patented queen. The answer is not to rail against Monsanto or even to bemoan the gullibility of juries. The only long-term answer is to lobby Congress to change the intellectual property laws and to bring this unintended consequence back into line with a reasonable social outcome. Yes, we have a vested interest now in creating better laws so we won't fall into the same trap if/when a patented queen is eventually developed.

Mike Rossander

Whoever --

>I get so very tired of this story. Yes, the story is real but that description is a gross oversimplification.

The above summary seems to perfectly accurate to me, I don't see how it could be considered an erroneous oversimplification. Given the inevitability of genetics escaping into the wild, it seems foolish to persecute others for the outcome, regardless of the amount of R+D done.

It brings to mind an image of Players suing bystanders for "benefitting" from second hand cigarette smoke. (Never actually happened).

> Unfortunately (from the point of view of an outside observer), every case that I'm aware of settled before going to trial.

The flagship case was that of Percy Schmeiser of Saskatchewan. Percy has been an avid seed-saver and breeder of Canola his whole life, and had
never had interest in, or interactions with, Monsanto. Given the unequivocality of his claim, it seems easily verifiable. Schmeiser and Monsanto ultimately
settled out of court, in his favor, with one of the conditions being, that the details of the settlement be public.


I hope this added clarification hasn't tired you further.


Mike again --

I do not see anything that you have to apologize for. The reply on that page missed the point that Monsanto's motivations are irrelevant - that these suits are being primarily driven by one clause in the patent and copyright laws which requires "vigorous defense" and does not allow copyright holders to exercise what in the criminal world would be called prosecutorial discretion. They must prosecute everyone or risk losing the right to prosecute anyone.

The Schmeiser case is indeed the most famous case but despite all the media hype, it did not really decide anything. As the poster says, "Given the unequivocality of [Schmeiser's] claim, it seems easily verifiable [that the cause was cross-pollination]." Yet the actual evidence presented in court was not easily verifiable at all with Monsanto measuring 90% proprietary gene and Schmeiser's tests measuring 0-68%. The Court essentially said that they were both right and avoided both a finding of fact on the degree of intermingling and any decision on the long-term policy issue.

I'm not surprised by the reply, however. It's fun to demonize Monsanto without really thinking about why they act the way they do.

I do not see any reason to delete the post. I leave it to your judgment whether the comments above would be a helpful addition.

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