When it comes to marriages made in heaven, an alliance between global consumer products giant Unilever and Greenpeace doesn’t automatically spring to mind. The company may not have the demonic status of many multinationals in the eyes of environmental activists, but I’d bet a sack of GM potatoes that the two organisations’ decision-makers don’t often meet for post-work drinks at the club.
So it comes as some surprise to find them on the same side of an intellectual property (IP) dispute. And not just any IP dispute, but one involving the patenting of plants, the kind of topic over which you might expect to find environmental groups and big food companies blockading each other’s trucks.
But such are the complexities of the patents world that Greenpeace has swung its weight behind Unilever’s challenge to a European patent on wrinkled tomatoes. The environmental group, along with an alliance of non-governmental organisations (NGOs), claim that the patent in question could open the door to a general corporate takeover of plant breeding, leaving us all with no choice but to eat out of agribusiness’s hands. Unilever, for its part, insists that the patent is null and void because it relates to a biological, rather than technical, process.
And, it’s not just tomatoes. Another dispute has added to the debate, in this case allying Greenpeace with another unexpected bedmate, the Swiss agribusiness company, Syngenta, in challenging a patent over the thorny issue of broccoli.
Vegetating on the issues
The two disputes are being fought over two plants with very distinct properties: a variety of broccoli, patented by the British company Plant Bioscience, that contains a higher-than-usual quantity of anti-carcinogenic glucosinolates, and a tomato, patented by Israel’s Ministry of Agriculture, that is less watery than most and thus better suited to the all-important production of ketchup.
But the disputes are not so much about the plants as about the way they were created. Unlike plant varieties created by genetic modification, these particular examples were developed using traditional methods of selection and cross-breeding and this, according to this curious new alliance of opponents, pushes them beyond the scope of European patents, which cannot apply to essentially biological processes.
The cases before the European Patent Office (EPO)’s Enlarged Board of Appeal thus hinge on the question of what constitutes a biological process, a judgement unlikely to be influenced by the protesters who gathered outside the board’s premises in Munich last month [July] to shout and wave placards in support of Unilever, Syngenta and co.
However, the EPO says that it can ‘only examine whether a patent application concerns a technical development that is new and industrially applicable and involves an inventive step’; it is not authorised or able to assess its social, economic or ecological implications. That, it stresses, is a task for legislators and for the relevant European and national regulatory authorities.
Greenpeace, for its part, has collected 100,000 signatures for a ban on patents on seeds, plants and animals. It and its non-agribusiness allies have made the reasons for their concern loud and clear. Confirming the broccoli and tomato patents will, they believe, open the way for widespread patenting of plants and animals, increasing costs for farmers and leaving food production in the grip of a handful of companies with deep pockets and fast-moving IP teams.
The Board of Appeals is due to issue its ruling on both these cases later this year. But if the preliminary hearings held in July are anything to go by, their decision is likely to prompt even further controversy, and not just on whether these two specific patents should be confirmed or revoked. NGOs, farmers, consumers and even politicians have seized on the two cases as a means to question the fundamental principle of whether patents should be granted for vegetables in the first place.
Richard Brass is a columnist for The Times. He writes on business issues for The Daily Telegraph and is a former editor of Punch.
