TED Case Studies, 2003
JACK AND THE
By, Danielle Goldberg
Go to Bottom
1. The Issue
The Enola Bean is an alleged case of biopiracy, where Larry Procter, a Colorado executive in the bean industry cultivated yellow beans he bought in Mexico on vacation for which he received a US patent two years later on all yellow beans of this variety. Larry’s company, Pod-Ners, admits that its Enola bean, (named after Larry Proctor’s wife), is a descendant of the traditional Mexican bean from the Andes, the Mayacoba, but that it has a better yellow color and a more consistent shape. By obtaining a patent and a U.S. Plant Variety Protection Certificate, he secured what amounted to a legal monopoly over yellow beans sold in the United States. Under the terms of the patent, he can therefore sue anyone in the United States who sells or grows a bean that he considered to be his particular shade of yellow. Procter also profits from yellow beans imported from Mexico by imposing on them a six cent-per-pound royalty. As a result, both farmers in the United States and particularly in Northern Mexico have suffered great economic hardship. The case has stimulated great debate over whether traditional knowledge and/or genetic resources should be patentable in the first place. As the number of patents filed by large corporations for native crops increases, activists become more concerned about the adverse effects of these patents on developing countries and particularly indigenous people.
Larry Proctor, the president of a Colorado (USA) based seed company, POD-NERS, purchased a bag of dry multi-colored beans in Mexico in 1994. Noticing the novelty of the particular yellow beans among them, Proctor planted the yellow beans in Colorado and left them to self-pollinate. He followed a process of segregating the yellow beans in several generations, creating a population in which the color of the bean entire seed coat remained uniform and stable season after season, when viewed in natural lighting. Proctor's company now owned the US patent for any beans falling within a range of yellow on the color spectrum.
Two years later, he filed for an exclusive monopoly patent. Proctor won a US patent. 5,894,079 - also known as the yellow bean or "Enola bean"- at the US Patent & Trademark Office in Washington, D.C, in April 1999. ‘I think that when Larry started his work, he may not have known what a patent was,’ said David Lee, a lawyer in Boulder, Colorado who specializes in patent lawsuits. He says that in 1996, another attorney helped Mr. Proctor apply for a patent on his yellow bean by documenting why he believes his invention that is, his seed, is better than previously known varieties of yellow beans (Shlender, 2002). According to Procter’s US patent application filed November 15, 1996: “This invention relates to a new field bean variety that produces distinctly colored yellow seed which remain relatively unchanged by season.” Included within the application is a description of this “distinct” color, including the “hue,” “value,” and “chromo,” according to the color notation system of the Munsell Book of Color. To be patentable, an invention must also be replicable by someone else "skilled in the art". In other words, an invention must be well enough described in a patent claim that someone else in the same field could reproduce it from the description. Thus, the application further claims patent rights to the method for producing the field bean plant, which involves “crossing a first parent field bean plant with a second parent field bean plant, wherein the first and/or second field bean plant is the field bean plant of the present invention.” Therefore, any method using the cultivar Enola is part of this invention.
Immediately after obtaining the patent, Procter sent a letter to all importers of Mexican beans warning that this bean was his company’s property, and anyone that planned to sell it would have to pay royalties to Pod-ners. Soon after, Larry Proctor filed lawsuits on 30 November 2001 against 16 small bean seed companies and farmers in Colorado that were selling Mexican yellow beans in the US, claiming that they were violating the patent by illegally growing and selling his yellow "Enola" bean. In addition, export sales immediately dropped over 90% among importers that had been selling these beans for years, causing economic damage to more than 22,000 farmers in northern Mexico who depended on sales of this bean. Generic fear over the sale of beans extended beyond the yellow bean variety and affected the entire bean industry (Locke, 2001).
There have been a variety of responses to Pod-Ners controversial US patent on the yellow-colored bean variety among Mexican consumers, Mexican bean exporters, small bean seed companies and farmers in the United States. A lawsuit was filed on behalf of the Mexican farmers in protest, responding to the 90% drop among exporters selling these beans, which caused economic damage to more than 22,000 farmers in northern Mexico who depended on these sales. Customs officials at the US-Mexico border are now even inspecting beans, searching for any patent infringing beans being imported into the United States. As a result, generic fear over the sale of beans extended beyond just the yellow bean variety to affect the entire bean industry, causing some small growers in the United States to give up and sell their land to agribusiness.
THE MEXICAN DRY BEAN INDUSTRY (Go to Top)
The Mexican Dry Bean Industry is already has faced substantial challenges in competing within a global free market. While macroeconomic indicators following the NAFTA agreement signaled success in terms of agricultural economic activities, commodity prices, especially for crops traditionally grown by campesinos, have dropped significantly. For example, between 1993 and 1998, the price of beans have fallen 51%, indicating a decrease in Mexico’s food security and an increased dependency on the U.S. for food (SIPAZ, 2001).
The Enola bean case seems to put salt on the wounds of Mexican accusations that American bean producers are emptying beans into the Mexican Market, depriving domestic markets of business. Mexico claims that the U.S. is dumping beans into Mexico by buying beans from other countries and reselling them in Mexico, so that Mexico cannot compete. Mexico has used such claims to justify resisting compliance with NAFTA Trade quotas for bean imports, a protected commodity for Mexico under NAFTA.
While NAFTA arranged agreements to aid Mexican farmers in the transition form fixed prices to a competitive market over 15 years, Mexican farmers have often been upset over the entry of high quality bean imports displacing their product in domestic markets (Pratt, 2003). International bean competition is difficult for Mexican bean growers, as for, unlike other bean producing countries, Mexico lacks irrigation for most dry bean acreage in Mexico, making the crops susceptible to drought. During terms of drought-related shortfall in production, such as in early 1998, the Mexican government had to authorize auctions of duty-free import permits to meet dry bean demand (Statpub 2000). According to United States FAO Statistics in 2001, Mexico was the fourth largest importer of dry beans. While the United States was the second largest importer, it happens to be the second largest exporter of beans, with 90% of the Mexican import share (Statpub July 2003) (See Table A… to be inserted). Accusations of fowl play go both ways within the bilateral trade agreements between Mexico and the United States. While Mexico accuses the United States of “dumping,” the United States has accused Mexico of attempting to break the NAFTA agreement by blocking dry bans from their markets using the justification of stricter and unprecedented pytosanitary standards (Michigan AgriWeekly, 2003). The Enola Case only further intensifies both interstate and bean industry conflict over free trade.
It seems that not all Mexican farmers are aware of new patenting laws infringing on their market, and the full extent of their implications. One 65 year old Mexican farm worker from Chihuahua, Jesús Villalobos was stunned and upset when told about the restrictions on exports of the yellow beans to the U.S., calling Pod-ners, a “bandito,” among other things. Like many other Mexicans, Villalobos grew up eating these beans (Dechant, 2001). In fact, beans are a staple in the Mexican diet. Ninety-eight percent of surveyed Mexicans in the Northwest region of Mexico eat the yellow bean, known as “Azufrado,” or “Mayacoba.” Years ago archaeologists discovered yellow beans in a cave in the Peruvian Andes and dated them back at least four millennia to before the Incas. Thousands of years later, Mexican agronomists crossed two yellow-tinted varieties and came up with a modern version of the yellow bean. This was back in 1978. They called it Mayacoba after a nearby village in Sinalou state. Mayacobas have been coming out of this valley, thousands of tons worth, ever since (Weekend Edition, 2001).
Much over the controversy has been over the alleged difference between the Enola and the traditional Mayacoba bean. Proctor insists that the traditional Mayacoba beans are “different” from his Enola beans, planted on Colorado soil. In response, when asked why importers of Mayacoba beans could then be infringing on his patent, he accused Mexican migrants of possibly “stealing” his Enola beans right from his fields (Weekend Edition, 2001). Yet, as far as warehouses in LA and Chicago are concerned, the beans are interchangeable. One bean trade in Denver even said that he slaps a Maycoba label on every bag of Enolas he gets so consumers know what they’re getting. Despite all legal claims to the bean, many still believe that this niche in the America’s Latino market was actually created with the initiative of Rebecca Gilliland, the would-be bean trader in Nogales (Weekend Edition, 2001).
The yellow bean market already had a large Mexican consumer based before Procter took control, with a significant 98% of Mexicans surveyed in Northwest region claiming to eat yellow beans. In the early '90s, Gilliland retired as a small oil producer in California and came to Arizona to take advantage of the onset of NAFTA. “‘In 1994 I was missing, here in the United States, the beans they've been eating in Mexico,’” says Gilliland, “‘the one I grew up with, the peruano Mayacoba. It's very, very delicious. Once you eat this bean, you never eat the pinto again. The taste is so unique.’” Gilliland considered the possible Mexican-American market for the bean and soon teamed with some colleagues in Los Mochis to slowly began selling the beans to distributors and grocery chains. Stores weren’t interested at first, until they recognized the growing consumer demand. Within a year, her imports of the yellow beans tripled. That is, until Larry Proctor proudly announced that he had invented the yellow bean and that it was illegal to bring that bean from Mexico. This yellow bean presented a new way to expand his crop base, which, according to dry bean industry trends, has been susceptible to commodity increases and price crashes year after year.
When talking about the yellow bean patent, one bean farmer commented that “‘In the beginning I thought it was a joke. They asked me when I started selling the beans. And I told the guy, ‘Way before you invent it. These beans [are] from Mexico, and these beans are being legally declared through the customs. We're not smuggling anything.’ And I say it's very surprised that you just invent it when I've been eating it for 30 years, you know?’” (Minnesota Public Radio, 2001).
While many consumers and some Mexican farmers are unaware of the case, most affected companies in the United States, however, have been extremely aware and proactive about the issue, particularly in Colorado. Responding to the lawsuits Larry Procter filed in November 2001 against 16 small bean seed companies and farmers in Colorado, Bob Brunner, President of Northern Feed & Bean, stated ‘We were shocked to be accused of infringing Proctor's intellectual property’ (ETC, Dec. 2001). Pod-Ners lawsuits accused growers and processors of violating the patent by secretly growing Enola beans and calling them Mayacoba. Yet Brunner claimed, ‘We've been growing yellow beans from Mexico since 1997 - and they are not Proctor's Enola beans.’
This is a contemporary story of genes and economics. Mexico's National Research Institute for Agriculture, Forestry and Livestock (INIFAP) recently conducted a DNA analysis of POD-NERS' patented bean. The results indicate that the Enola variety is genetically identical to Mexico's "Azufrado" bean. That said, one may ask, is color enough uniqueness to grant a patent when it has never been grown in the United States? The International Center for Tropical Agriculture, CIAT, and Action Group on Erosion, Information and Technology, ETC, (Formerly RAFI), of Canada consider this injustice. They both filed a formal request to reexamine the patent for a possible violation of the 1994 FAO Trust agreement that requires the designation of germplasm as public domain and off-limits to intellectual property claim. In 2000, RAFI also denounced the yellow bean patent as "Mexican bean biopiracy" and demanded that the patent be legally challenged and revoked.
Of particular concern is the patent’s claim of exclusive monopoly on any Phaseolus vulgaris (dry bean) with a seed color of a particular shade of yellow. The CIAT claims that this patent “will make a mockery of the patent system to allow statutory protection of a color per se." While Proctor did not obtain his yellow beans from among CIAT’S gene research bank of more than 27,000 dry bean samples, CIAT claims to maintain some 260 samples of beans with yellow seeds. Six of these are nearly identical to the Enola patent. From CIAT’s point of view, this yellow bean was “Misappropriated” from Mexico, violating Mexico’s sovereign rights over its own genetic resources, thus violating the Convention on Biological Diversity. Mexico says genetic fingerprinting shows that the Enola bean is the same as a bean registered in Sinaloa, Mexico, in 1978 scientific evidence that Andean peasant farmers developed this bean first, along with Mexico.
Northern Feed and Bean Co., of Lucerne Colorado, and sister company Yellow River, maintained that their yellow bean seeds were Mayacobas that come from Sinaloa, Mexico (ETC, Dec. 2001). Over 100 farmers sell pintos and other beans in Lucerne, Colorado, including yellow beans that Northern Feed says he bought directly from growers who developed them in Mexico. According to Bob Brunner, owner of Northern Feed and Bean, ‘We had experimented with these yellow beans before Proctor had his patents. I refused to be a licensee, because I didn't think it was necessary for us to pay a license fee’ (Fujii, 2002). . "They were not Enola," said Bob Brunner. "They were Myocobas that we brought in from Mexico." This is a lie, according to Proctor, who is suing Mr. Brunner, along with other U.S. farmers and importers for allegedly secretly planting his Enolas. Mr. Brunner denies the allegations..
In addition, Brunner, notes an unjustified rise in costs for the whole industry over the patent. While he would contracted with Greeley area farmers to produce yellow beans for $40 per cwt (hundred pounds), a few Delta area farmers who contacted Brunner complained that Pod-ners contracted with them for only $25 per cwt (Dechant 2001). Despite all this, ultimately, under legal and financial pressures, Brunner and other opposing companies agreed to pay undisclosed financial compensation for allegedly selling the bean variety to at least a dozen northern Colorado farmers without Pod-ner’s permission.
According to Larry Procter’s lawyer, "There's a lot of talk about Mr. Proctor doing nothing, but he devoted five years to coming up with what is basically a new bean" (Hansen). Not all bean growers, however, have opposed the patent. According to grower Teixeira, controlled production under the patent will assure a decent profit from year to year. Likewise, he believes that the consumer gets a steady supply of quality product, at a fair price. “’The non-patented beans have been around for years, but ‘there's never been that much action on them.’ said Teixeira. Initially, most of the beans sales took place in Mexico, but demand for the yellow beans have risen in the last few years” (Hansen, 2001). "The consumer out there likes what we're doin'," said Procter. "They're buying it. Our farmers are makin' money on it, where they were goin' broke on other crops or living off the government subsidies" (Shlender, 2002). Procter said he’s been doubling and tripling his production each year and failing to keep up. This comes in contrast to the continual commodity surpluses and price crashes Teixeira has seen in his 30 years in the bean industry (Fujii, 2002).
3. Related Cases
Maca: Dispute between US and Peru over patent rights on the extractions from a traditional medicinal plant
Grappa: Dispute between South Africa
and the European Union over the alcoholic beverage Grappa
Aidsstrips: Intellectual Property Rigths and the AIDS drug in South Africa
Basmati: Dispute over the rights to name “Basmati”
Canola: Dispute between Saskatchewan
famers and Monsanto Company over the rights to grow canola
Kimchi: Dispute between South Korea
and Japan on the rights to product Kimchi
Neemtree: Dispute between the US
and India over rights to products from the Neem tree
Scotch: Scotland’s intellectual
property rights to the alcoholic beverage
Tequila: Mexico’s demand that
tequila be protected as a “geographically indicated product” under
intellectual property law
4. Author and Date:
Danielle B. Goldberg
5. Discourse and Status:
Patents were originally created more than 500 years ago to help industrial inventors protect their inventors, and to stimulate innovation. While this appears honorable in theory, in today’s world of corporate power, big business can manipulate patent legislation to attain monopoly, far from the original intention of encouraging creativity.
Worldwide criteria require patents to demonstrate novelty, utility, and inventiveness. Thus, discoveries are not patentable, but something that can be replicated by someone in the same field. This criteria assumes that life forms and traditional knowledge are eligible for patents. Since 1980, the patent system has slowly expanded to include patents on living and genetically modified organisms. In particularly, bioprospecting, or the search for genetic material of market value, has become one of the most rapidly developing industries of the 21st century. International patent laws within the broader sphere of intellectual property rights, determine the extent to which “biopiracy can be controlled.” While the World Trade Organization has frequently discussed the issues of indigenous rights and the patenting of life forms, particular guidelines to the phenomenon are unclear. Thus, those regions in the world with the greatest biodiversity, such as Mexico, are sometimes seen as a playground for large pharmaceutical and food companies and potential cases of “biopiracy.” Poor farmers in Mexico and around the world now face the threat of having to pay licensing fees to grow indigenous crops grown in the region for generates to large biotechnology and seed companies with the resources to patent these products.
Both developing countries and civil society groups are trying to take both legal and advocacy recourse in thwarting alleged cases of biopiracy. In the case of the Enola Bean, the International Center for Tropical Agriculture, for example, made the claim in December 2000 that the yellow bean was ‘misappropriated’ from Mexico, and that it violates Mexico’s sovereign rights over its genetic resources, as recognized by the Convention on Biological Diversity. Following intense cries of biopiracy among civil society groups and the Mexican government against Larry Proctor’s yellow bean patent, Procter contested a reexamination of the Enola bean patent sought by the International Center for Tropical Agriculture in December 2000. While his lawyers have ardently defended his claim to the Enola Bean, the US Patent and Trade Office have been forced to re-examine proceedings with the re-issue proceedings, thus complicated and delaying a final decision (ETC, Dec. 2001).
It is uncertain whether CIAT’s challenge will eventually be successful, as strong arguments lie on both sides. Yet, irregardless of the result of the Enola Bean patent challenge, the issue of biopiracy and protection of traditional knowledge is far from over within the legal international arena. Increased biotechnology and global competition among corporations for patents over the monopoly of seeds, crops, and genetic plant resources have resulted in greater cases of alleged biopiracy, intensifying international controversies on the establishment of legal international guidelines on intellectual property rights of plant and genetic materials.
6. Forum and Scope:
The World Trade Organization (WTO), led by support of the United States, created an institution to set guidelines for these issues through Trade Related Intellectual Property Rights (TRIPS), a precedent-setting agreement created by governments at the GATT Uruguay round. TRIPS permit individuals and corporations to claim exclusive rights over genes, life forms, microorganisms, and micro-processes by which they perform their functions. Developing countries were initially reluctant to accept the agreement, despite pressure from U.S. and Europe, as they saw it as a threat to sustainable development in their own terms. Most controversial were the provisions about patents on life forms in Article 27.3(b), which were supported under the provision that they would be reviewed before they were fully implemented in developing countries in 2000. (This agreement allows Procter to even patent his bean variety in the first place.) This review has moved extremely slow, given North-South disagreement over the increasing pressure within global movements to prevent the occurrence of biopiracy and enacting greater checks and balances within WTO provisions. Still, given the subordinate position of most developing countries in formulating international law, there is the risk that reforms will only further expand intellectual property rights on life. This would further protect the right of such corporations as Pod-ners to patent life resources while further harming communities who rely on biodiversity and traditional knowledge for their livelihood.
For many critics, it is not a question of clauses being present of absent, but a question of the fundamental assumptions about the appropriateness of applying patent or patent-like legislation to life forms or to traditional knowledge, which are essentially public, 'non-divisible' goods, and not seen as 'property.' A 1999 statement on TRIPS released by a global network of indigenous people's organizations, and NGOs made this assertion: Knowledge and cultural heritage are collectively evolved through generations. Thus no single person can claim inventions or discovery of medicinal plants, seed or other living things. The inherent conflict between these two knowledge systems ... will cause further disintegration of our communal values and practices." African governments and the Organization of African Unity have taken similar positions on life form patenting as being unethical and alien to the cultural beliefs of Africans (Sveenivasan, 2001).
According to Article 27.1 of the Trips Agreement, Member countries are required to make patents available for any inventions, whether products or processes, in all field of technology without discrimination, subject to the normal test of novelty, inventiveness and industrial applicability. It also requires that patent and patent rights be available without discrimination as to the place of invention and whether products are imported or locally produced (WTO Trips). The question of novelty, however, becomes suspect when patent applicants are not legally required to disclose from where they obtained the genetic material.
Larry Procter admitted that the obtained the original beans from Mexico; however, there is currently no agreement among governments regarding a requirement to disclose information. In that case, a patent office can not determine whether an invention actually occurred, or whether someone is in a sense, misappropriating ownership of a region’s traditional natural resources, or ‘biopiracy.’ Thus, while the Enola Bean patent is among the most resent controversial case over the patenting of genetic plant resources derived from developing country’s resources, this case is not unique. In 1998, RAFI and the Heritage Seed Curators Australia, HSCA, released a report documenting 147 examples of plant breeders rights were allegedly collected plant varieties collected in foreign countries without any evidence of breeding.
Following thee increasing incidents of biopirated materials or knowledge, developing countries have been pushing hard to include this rule on disclosure of origin in TRIPS. Currently, the only resource available is to challenge the patent in the courts or before the patent office in the country where the patent was issues, such as in the Enola Case. Such an investigation is expensive, slow-moving, and easily thwarted by counter legal action. Furthermore, many of the communities affected by such patents do not have the resources to follow legal recourse.
A recent proposal by the Africa group however, would require patent applicants to declare the origin of their invention, and in the case of indigenous knowledge, acquire consent from local communities offering the resources, and a measure of benefit sharing. Africa rejected a new proposal to bring traditional knowledge (TK) formally within the prescriptions of TRIPS, instead pushing for an additional TRIPS section to specify under what conditions traditional knowledge can be placed under International Property Rights, and how they should be protected. The Africa Group asserted than any regime for plant varieties should protect the rights of Farmer and local communities. On the opposite spectrum, The United State, opposed to singing any such agreement, reject any attempt to exclude any kind of inventions from patenting, including plants and animals.
Most recently, certain industrialized countries, particularly the European Union an Switzerland, have shown some interest in negotiating a mechanism to disclose the origin of genetic materials or traditional knowledge used in patented inventions. If TRIPS forced patent applicants to disclose the origin of genetic resources, it would be easier to determine the validity of the patent. Neither Europe nor Switzerland, however agrees to make this mandatory, to include an element of benefit sharing for these patents, nor to require the attainment of consent among affected indigenous communities. Furthermore, they both maintain a vague definition of an invention’s origin, referring to merely a ‘geographical area’ or ‘source (GRAIN, 2003).
Analysis of individual cases is complicated by the fact that to all international agreements are consistent with TRIPS polices. The food and Agricultural Organization’s (FAO), International Undertaking on Plant Genetic Resources, for example, follows the UN’s Convention on Biological Diversity, maintaining that plant genetic resources are pat of humanity’s common heritage and belong within the public domain. However, these organizations have no enforcement mechanisms, unlike the WTO. As a result, WTO policies demonstrate the discourse over private versus public control of plant and agricultural genetic resources.
Furthermore, most of the legal framework to protect TK under the WTO is fraught with contradictions and controversy, as the WTO, with its narrow concerns for increased international trade, is seen more as the problem than the solution. Even measure to protect traditional knowledge by patent origin identification and benefit sharing contradicts community values that view this information as cultural, spiritual, and outside the realms of patent. Still, developing countries continue to demand that TRIPS apply broader exception on the obligations of developing countries to adopt full fledge IDR regimes by considering cultural and social welfare needs of the country. For example agriculture is the primary source of employment and livelihood for 3 out of 4 people in poor countries, which includes Mexico (Rattray, 2002). Patenting can greatly affect the livelihood of these farmers? With the Enola Bean patent, some Farmers may be unable to grow the crops they have grown for generations without first paying royalties to PODS-NERS.
Furthermore, if activists were legally successful in claiming that Enola Beans were no different than Maycaoba beans, for example, perhaps these beans would be protected as a geographic indicator, given its historic connection to Aztec cultivation of these particular beans in the Andes. At this point, however, as biodiversity and traditional knowledge are not excluded from RIPS, the power of advocacy remains on civil society groups to educate the international community on the moral and legal illegitimacy of legal patents on allegedly biopirated life materials. Organizations such as CIAT and RAFI, as well as active Indigenous and Mexican Farmer groups may be able to influence the importance of the Enola Bean review, and other such cases, by directed public opinion in favor of indigenous rights and sustainable agricultural markets.
7. Decision Breadth:
The United States and Mexico with overarching implications from World Trade Agreements
8. Legal Standing:
Disagreement and in process
It has been almost one year since CIAT filed its request for re-examination of the Enola bean patent. The PTO's decision has been stalled because Larry Proctor's lawyers have amended the original patent by filing 43 new claims. The PTO responded by merging the re-examination proceedings with the re-issue proceedings, thus complicating and delaying a final decision (ETC, Dec. 2001). Procter contests the reexamination of the Enola bean patent sought by the International Center for Tropical Agriculture, and in 2001, he filed additional suits against a group of Colorado farmers and bean processors for producing yellow beans.
9. Geographic Locations
a. Geographic Domain: North America
b. Geographic Site: Southern North America
c. Geographic Impact: Mexico and the United States
10. Sub-National Factors:
11. Type of Habitat:
12. Type of Measure: Intellectual Property
13. Direct v. Indirect Impacts:
Of fundamental importance is the fact that monopoly control of agricultural genetic resources involves essential ethical and practical questions about food security, development, social and economic justice, community and farmers' rights, environment and biodiversity. These questions revolve around the principle of public versus private control of humanity's basic life-support systems - seeds, food crops, air and water.
14. Relation of Trade Measure to Environmental Impact
a. Directly Related to Product: Yes- Enola Bean
b. Indirectly Related to Product: No
c. Not Related to Product: No
d. Related to Process: No
15. Trade Product Identification: faded yellow bean
16. Economic Data
17. Impact of Trade Restriction: Medium
18. Industry Sector: Agricultural
19. Exporters and Importers: United States and Mexico
20. Environmental Problem Type:
21. Name, Type, and Diversity of Species
Name: Dry beans
Type: Phaseolus vulgaris
22. Resource Impact and Effect: Low and Regulatory
23. Urgency and Lifetime: Low and Annual
24. Substitutes: Pinto bean, Mayacoba bean, Azufrado bean
For many farmers in Mexican, monopoly control of agricultural genetic is an issue that goes beyond just economic losses. It is a moral injustice to misappropriate the genetic resources of land that have long existed within a society’s economy and culture. Activist groups like the ETC warn that the Enola case "demonstrates very clearly how monopoly patents can threaten food security and the livelihoods of farmers," said Hope Shands. Ms. Shands says that from the standpoint of the world's food supply, Ms. Shands says that seed patents stop farmers from saving and swapping seeds, making it illegal to do so without paying license fees to the patent owner. This could therefore endanger seed diversity. (Shlender, 2002). Mexico culture in particular place a large importance on beans and seed sharing, while patenting laws contradicts the communal sharing of these natural resources.
Plants have historically been a large part of Mexican culture and are tied together with many issues. In the past maize was part of creation myths and played a major role in the development of prehispanic cultures. Plants imported to Mexico such as sugar cane had far reaching impacts on land use, labor and class systems. Crops such as tomatoes, peppers and maize were exported and have dramatically changed food diets around the world. In other regions, seeds still held a strong place in culture. In Tepoztlan, Morales on an arch heading into the courtyard of the town Cathedral there is a beautiful mural of hills, people and life, made entirely from seeds created by the community. Seeds, as these examples suggest, are viewed not so much as means of production or a means of profit but much more holistically, as a part of life and food and culture (Hough).
Agricultural plants in the South, developed by farmers over thousands of years, have been bred and adapted to suit local conditions. For example, of the hundreds varieties of corn grown in Mexico, each has unique characteristics and features: some more adaptable to frost or drought, other grow in higher altitudes, some produce late in the season, others early. The free exchange of this knowledge, as well as local sale and exchange of seeds, has been an essential aspect of food security among the poor. In the developing word, only 10 per cent of seed is bought commercially, and many poor farmers buy seed only every five years (Sreenivasan, 2001).
Dr. JOACHIM VOSS (Director, Center for International Tropical Agriculture) stated, “I've worked with farmers in Asia, Africa, Latin America. Universally, those farmers freely exchange varieties between themselves as a form of reciprocal seed exchange. And they're delighted when somebody else recognizes the value of the varieties that they are using. For them, the idea that you might put proprietary claim on a variety just seems like it's coming from the moon. I mean, it's just totally outside of their realm of social values” (Weekend Edition).
One Zapatista community is trying to counteract threats against traditional communal agricultural practices by teaching the importance of seed sharing in schools. One education promoter in this program explained:
We must make the effort to save the
seeds which grow in our communities because a new type of seed known as transgenetic
is arriving and this seed could destroy the plants which our ancestors created
over thousands of years. These seeds are specially adapted for our climates
and soils and must never be lost! In our language which is Tzotzil we call our
new project "Sme’ Ts’unubil ta Ts’ikel Vokol ta Jlumaltik,
Chiapan" which means Mother Seeds in Resistance from the Lands of Chiapas
(Chiapaslink, Feb. 2002).
26. Trans-Boundary Issues:
Patents on life forms, Indigenous rights to biological resources and knowledge, International Patent legislation.
27. Rights: Rights to indigenous knowledge and protection of regional life resources
28. Relevant Literature
Chiapaslink, (2002, February).
Dechant, David. “Bean Biopiracy in Colorado.” (2001, Dec. 21). http://www.cropchoice.com/leadstry.asp?RecID=544.
Delgado, Gian Carlo. Biopiracy and Intellectual Property as the Basis for Biotechnological Development: The Case of Mexico. (2002). International Journal of Politics, Culture, and Society. 16, no. 2.
Enola Bean Patent Challenge. (2001,
January 5). Rural Advancement Foundation
International. Available at www.rafi.org.
FASonline. (1998). NAFTA Helps Expand
Mexican Grain Markets for U.S. Farmers.
Fujii, Reed. (2002, Sept. 15). “U.S.
Dry Bean Production Business Gets Ugly.” Knight
Ridder/Tribune Business News.
GRAIN. (2003, July). “The
Trips Review at a Turning Point?” http://www.grain.org/front/index.cfm.
Hough, Andrew. Trip Report for Mexico
Biotechnology and Food Security. http://www.mennonitecc.ca/us/globalization/hough/mexico.html.
Intellectual property law, genetic resources and GMOs: on the agenda at FAO. (2002, October 28). http://www.fao.org/english/newsroom/news/2002/10300-en.html.
Locke, Christopher. (2001, March
15). Has Bioprospecting Gone Wild? International
rights groups are working to protect indigenous peoples and their precious
pharmaceutical resources. http://www.redherring.com/mag/issue95/250018225.html.
McGrath, Peter. Biopiracy threat to traditional crops. New Agriculturist Online. http://www.new-agri.co.uk/02-5/develop/dev03.html
Mexican Bean Conspiracy. (2002 Spring).
US-Mexico Legal Battle Erupts over
Patented “Enola” Bean. RAFI release. http://www.greens.org/s-r/22/22-21.html.
Michigan AgriWeekly, (2003).
Minnesota Public Radio. (2001). Martin
Robles and the Mayacoba.
Mutume, Gumisai. (2000, Jan. 28).
Developing World Fights for Control over Genetic
resources. Mexico City (IPS World Desk).
Pratt, Sean. (2003, Oct. 15). “Mexico Ripe for Bean Sales.” Saskatoon Newsroom.
Pratt, Timothy. (2001). Small Yellow
Bean Sets off International Patent Dispute. New
York Times. Found in: http://www.loka.org/_news1/00000002.htm.
Pringle, Peter. (2003). Food, Inc:
Mendel to Monsanto-The Promises and Perils of the
Biotech Harvest Simon & Schuster.
Proctor's Gamble. ( 2001, December
17). ETC group, www.etcgroup.org, News
Rattray, Gillian A. (2003) “The
Enola Bean Patent Controversy: Biopiracy, Novelty and
Fish-and-Chips. Duke L. & Tech. Rev. 0008.
Simon, Scott, (broadcast host). Profile: Controversy over Patent Held by One American Farmer for a Yellow Bean with Origins to the Incas. Weekend Edition. Saturday. Washington, D.C.: Jun 9, 2001. pg. 1.
SIPAZ Internal Document. (2001).
Presentation: Economic Issues. San Cristobal de las Casas, Chiapas.
Sreenivasan, Gauri & Jean Christie.
(2002 March). Intellectual Property, Biodiversity, and the Rights of the Poor.
Canadian Council for International Co-operation Trade and Poverty Series. http://www.gefoodalert.org/library/admin/uploadedfiles/Intellectual_Property_Biodiversity_and_the_Rig.htm.
Statpub. (2003 July). US Edible Bean
Consumption Flattening. http://www.statpub.com/stat/open.2003.7/56123.
United States Enola Bean Patent Application. http://patft.uspto.gov/netacgi/nph-Parser?Sect1=PTO2&Sect2=HITOFF&u=/netahtml/search-adv.htm&r=1&p=1&f=G&l=50&d=ptxt&S1=5,894,079&OS=5,894,079&RS=5,894,079.
Weekend Edition, 2001.
WTO Trips. http://www.wto.org/english/thewto_e/whatis_e/eol/e/wto07_23.htm#note8.