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Patented Beans Create Controversy - 2002-07-21

While widgets and other such manufactured things have been patented for centuries, only since the 1980s have U.S. laws allowed the patenting of seeds. Today there are over 1,000 patents on soybeans, rice and the other crops that make up 70 percent of the world's food supply.

Six major agrochemical companies own 30 percent of these patents, and although many farmers say we all benefit from innovative seeds, others caution that patented seeds damage the time-honored tradition where farmers save, replant and swap their seeds without paying royalties to their suppliers. These opposing perspectives have triggered several lawsuits that pit small farmers against large seed corporations. But in the American West, a patent lawsuit between small farmers is coming to a head.

"I have had hard times feedin' my family on the family farm, as many others have," said Larry Proctor.

Larry Proctor grows and processes pinto beans in Delta, a small Colorado farming town. The price of pinto beans tends to be low, so he dreamed of creating a bean that would sell at a higher profit. His says his vision became reality in 1990, when he bought some beans at a Mexican market. "There was an assortment of colors of pintos...real white to a gray bean," he said. "Black beans. Just all different colors of beans."

The assortment included yellow beans, about the size of pinto beans. Back in Colorado, Mr. Proctor planted these, and after a few test harvests, he struck gold - or in his case, a special shade of yellow. "It was a healthier appearing plant," said Larry Proctor. "It had a more desirable color as far as i was concerned, from what we originally started out with."

Yellow beans are popular in Mexico; Mr. Proctor believed he had created a new variety that would appeal to consumers in the United States, and he wanted to protect his discovery. "I think that when Larry started his work, he may not have known what a patent was," said David Lee.

David Lee is 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 inventionthat is, his seed is better than previously known varieties of yellow beans. He explained in his patent application why he thought his cultivation methods had produced a novel product. He described what was unique about his bean, including its special shade of yellow. And to be exact about that color description, he referenced the Munsell Book of Colors, which is often used in patent applications.

In his Boulder office, David Lee displays a series of paint chips from the Munsell book.

Based in part upon that special yellow color, government examiners in 1998 granted Mr. Proctor's patent. He named the bean Enola, his wife's middle name, and these days, the yellow Enola bean often sells for twice the price of pintos, with royalties for Mr. Proctor. "The consumer out there likes what we're doin'," he said. "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."

But some farmers say that older, unpatented yellow beans are also good. "It is a sweeter bean than a pinto bean, and it doesn't take as long to cook," said Larry Proctor.

Bob Brunner owns Northern Feed and Bean, a processing company near the town of Lucerne, Colorado, where noisy machines sift millions of beans before they're loaded onto semi-trailer trucks.

Over 100 farmers sell pintos and other beans here, including yellow beans that Mr. Brunner says he bought directly from growers who developed them in Mexico. "They were not Enola," said Bob Brunner. "They were Myocobas that we brought in from Mexico."

This story is a lie, according to Mr. Proctor, who is suing Mr. Brunner, along with other U.S. farmers and importers who he says secretly planted his Enolas. Mr. Brunner denies the allegations. Some people even call the Enola patent a theft of Mexican property. "This is a textbook case of biopiracy, and it demonstrates very clearly how monopoly patents can threaten food security and the livelihoods of farmers," said Hope Shands.

Hope Shands is with the "Etc." Group, based in Winnipeg, Canada, an organization that wants to reduce the influence of commercial patents in the global food supply. She says the Enola patent should never have been granted, and that the International Center for Tropical Agriculture in Cali, Columbia, has a registered seed bank with 260 varieties of yellow beans, some just like Enolas. A British group called "Action Aid" thinks this case is so outrageous, they've applied for a patent on putting salt on thin potato slices, so they can corner the market on potato chips.

Mr. Proctor's trial attorney, David Lee, believes his evidence will prove the Enola bean is unique. As for people who suggest that only high-tech, laboratory-engineered seeds deserve a patent, Mr. Lee cites Section 103 of United States Patent Code. "I think this is a literal quote, 'Patentability shall not be negatived by the manner in which the invention is made.' So the fact that Larry Proctor used routine methods to create his invention is irrelevant from a patent standpoint," he said.

From the standpoint of the world's food supply, Ms. Shands of the Etc. group says that all seed patents stop farmers from saving and swapping seeds, so they endanger seed diversity. "The patenting of life forms, of plants, animals, genes, human genetic resources, must be stopped, or we're going to see more and more abuses of intellectual property," she said.

Mr. Lee says he's fighting for Mr. Proctor, fair and square. But for people who wonder which direction our patent laws should go, Mr. Lee offers this suggestion. "The law right now is the way the law is," he said. "We didn't make it. We're playin' by the rules, we're doing what the rules permit. We're doin' what everybody else does. So if there's a complaint, I say take it to Congress."

The World Trade Organization is reviewing the rules on the patenting of life forms, and the ActionAid group is asking the British government to withdraw its support of the practice. Meanwhile, commercial seed developers continue to push for greater acceptance of patented seeds by traditionally wary farmers.