Patrick J. Fiedler, Monsanto's latest legal advocate.
Who named him God?
“Nothing is more destructive of respect for the government
and the law
of the land
than passing laws which cannot be enforced.” ~ Albert
Einstein.
By Rady Ananda
October 13, 2011
As
courts and bureaucrats continue to assert that citizens have no
fundamental right to produce and consume the foods of their choice, we find
Monsanto lurking nearby. The Wisconsin judge who recently ruled that we have no right to own a cow or drink
its milk resigned to join one of Monsanto’s law firms.
Former judge
Patrick J. Fiedler now works for Axley Brynelson, LLP, which defended Monsanto against a patent infringement case filed by
Australian firm, Genetic Technologies, Ltd. (GTL) in early 2010.
GTL had sued
several biotechnology firms, a medical lab and a crime lab that had used its
patented methods for analyzing DNA sequences. Though a federal case, the
district court which heard the matter, sits in Dane County, Wisconsin, where
Fiedler coincidentally served as a state judge.
In that
case, the US Patent and Trademark Office (PTO) “upheld Genetic Technologies
Ltd.’s patent for noncoding DNA technologies, giving more firepower to the
Australian company’s patent infringement suit against Monsanto Inc., Pioneer
Hi-Bred International Inc. and a slew of rival laboratories,” reports Law360.
In another
link, Myriad Genetics, which holds the exclusive U.S. patent on human genes,
BRCA1 and BRCA2, granted the license to GTL in
2002. These human genes are associated with breast and ovarian cancer.
In 2009, the ACLU
and the Public Patent Foundation (PubPat) sued the PTO, Myriad Genetics, and
principals at the University of Utah Research Foundation, charging that patents
on genes are unconstitutional and invalid. The suit also charges that such
patents stifle diagnostic testing and research that could lead to cures and
that they limit women’s options regarding their medical care.
In an absurd ruling this year, the Second
Circuit Court of Appeals allowed the patent on these human genes, even though
the DNA sequence occurs in nature. The court decided that simply because
researchers had been able to extract it, the firm owns it. Of course,
under this thinking, all of nature can be patented if human technology allows
extraction.
“The U.S.
Patent and Trademark Office has granted thousands of patents on human genes ~
in fact, about 20 percent of our genes are patented. A gene patent holder has
the right to prevent anyone from studying, testing or even looking at a gene.
As a result, scientific research and genetic testing has been delayed, limited
or even shut down due to concerns about gene patents,” commented ACLU.
The US
ruling gives Myriad monopolistic control over these human genes, and over
diagnostic testing for that DNA sequence. The case is now
headed to the US Supreme Court.
The Myriad
patent was also challenged in Australia and at the European Patent
Office. In 2009, the EPO granted a highly
restricted BRCA1 patent.
Australia’s
case will be heard in February 2012. Dr Luigi Palombi, who supports the pending
Patent Amendment Bill, believes
the US decision “is irrational, contrary to scientific fact and little more
than a knee-jerk reaction to the fear mongering of the American biotechnology
industry. It claims that without gene patents it will not have any incentive to
undertake necessary research. Of course, this is a lie.”
Part of the
problem, Palombi explains, is that
much of the research that allowed Myriad to develop its breast cancer test was
publicly funded. Going further:
“The decision turns
patent law on its head because it means that the prize is given for the
discovery not for the invention (a new, tangible and practical use of the
discovery).
“The second problem
is, Myriad’s scientists discovered and linked genetic mutations to breast and
ovarian cancers, but that’s a long way off an invention. If there was any
invention by Myriad (assuming it was also novel and involved an inventive
step), it was in the development of a diagnostic test.”
Of note, in a
dissenting opinion, Judge William C. Bryson wrote that the Dept. of Justice
filed an amicus brief asserting that Myriad’s gene claims are not
patent-eligible, thus undermining the PTO’s position. Bryson wrote:
“… the Department
of Justice speaks for the Executive Branch, and the PTO is part of the
Executive Branch, so it is fair to assume that the Executive Branch has
modified its position from the one taken by the PTO in its 2001 guidelines…”
Given the
DOJ’s protection of Monsanto interests, however,
it is likely that its opposition to Myriad’s patents may have more to do with
stifling competition than protecting nature from theft by biotech firms.
After DOJ attorney Elena Kagen moved to the Supreme Court, the high court ruled
in Monsanto’s favor allowing the planting of genetically modified alfalfa.
Earlier this
year, Obama pressured the USDA to remove
the buffer zone requirement for GM alfalfa, further ensuring genetic
contamination of natural alfalfa. That decision ensures the destruction of the
organic meat and dairy industries in the U.S. which rely on natural alfalfa
feed. It will also strengthen biotech’s monopoly control over our food.
Obama has
stacked his administration with Monsanto employees and biotech proponents,
including Michael Taylor as FDA Deputy Commissioner for Foods, Tom Vilsack as
Secretary of Agriculture, Islam Siddiqui as Ag Trade Representative, and Elena
Kagen on the Supreme Court.
In a related matter, PubPat also filed suit this
year against Monsanto over the
patenting of genetically modified seeds which contaminate natural crops. “As
Justice Story wrote in 1817, to be patentable, an invention must not be
‘injurious to the well being, good policy, or sound morals of society,’” notes
the complaint, citing studies showing harm caused by Monsanto’s Roundup
herbicide, including human placental damage, lymphoma, myeloma, animal miscarriages, and other
impacts on human health.
That any
official would approve gene patents is bad enough – discovering nature is not
inventing it. But in the Wisconsin case, Judge Fiedler ruled that
humans:
“Do not have a fundamental right to own and use a dairy cow or a dairy herd;”“Do not have a fundamental right to consume the milk from their own cow;”“Do not have a fundamental right to board their cow at the farm of a farmer;”“Do not have a fundamental right to produce and consume the foods of their choice;” andCannot enter into private contracts “outside the scope of the State’s police power.”
Ruling against raw
milk forces consumers to drink genetically modified, antibiotic-laden milk from
cows fed an unnatural diet of pesticide-loaded feed. No doubt that makes Monsanto a major fan of
Patrick Fiedler. His decision was
rendered on Sept. 9 and he stepped down from the bench on Sept. 30.
This case begs for
competent legal counsel who can get the outrageous decision overturned.
Rady Ananda is a
frequent contributor to Global Research.
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