At the July meeting of the ACAB, you asked members of the committee to send you their views on the USDA's role as co-holder of patents on the Terminator and related technology protection systems. We submit the following in response to that request.

I. USDA should abandon the patents it co-holds with Delta and Pine Land for the Terminator technology, and related technology protection systems.

After carefully reviewing the USDA materials and listening to the discussion at the recent ACAB meeting, and in light of overwhelming public comment opposing its use, we continue to believe that the USDA should abandon the patents covering the genetic seed sterilization technology (Terminator) that it co-holds with the Delta and Pine Land Company. Our understanding from those discussions is that the USDA is legally able to abandon the patents and/or terminate its obligations under the CRADA, (unilateral termination clause section). For reasons that remain unclear to us, the Agency has decided not to exercise those options but instead to push forward and execute an agreement with Delta and Pine Land on the terms under which the patents will be licensed in the marketplace.

We are steadfast in our view that USDA's continued association with the Terminator patent is a fundamental mistake because the technology is potentially dangerous to biodiversity and global food security. Terminator technology has only one primary purposeto allow private companies to exert greater control over the seed markets and extract more income from farmers forced to buy their products on an annual basis. In an era when the private agricultural research sector threatens to swallow the public, this is the wrong way to spend public money and the wrong message to send about how genetic engineering will be applied and whom it will benefit.

Scarce public resources should be spent to complement, not duplicate, efforts of the private sector. Since development of technology protection systems is being widely pursued in the private sector, there is no need for the USDA to stimulate or duplicate this research. Rather than stimulate, in fact, in this case, the public sector should act to modulate the monopolistic effects of the technology.

Abandoning the patent would also send the right message about how biotechnology will be used. The prospect of a quasi-monopolist seed industry forcing the world's farmers to adopt Terminator seeds has caused justified outrage around the world, especially among the millions of poor farmers who rely on saved seed. It is hard to think of more effective way to fan the flames of fear that agricultural biotechnology will be misused than to assist a company that currently controls 70% of the cotton seed market to secure an even stronger hold over the market. Dissociating itself from the Terminator would signal the US' commitment to develop genetic engineering to serve the common good rather than the agendas of multinational corporations.

II. If the USDA refuses to not abandon the "Terminator" patent, it should attempt to persuade its CRADA partner to establish conditions on the patent license to address concerns about the technology and limit potentially pernicious effects.

Although we recognize that the US is not a party to the Convention on Biodiversity (CBD) the USDA and its CRADA partner should observe and support the recommendation made by the Fifth Conference of the Parties to CBD for a moratorium on all field-testing and commercialization of genetic use restriction technology (including the Terminator). We further recommend the following:

A) The technology should not be licensed to companies, which control greater than 40% market share for a food and fiber crop species within their national seed market.

B) The technology should be not be licensed at all for use in crops capable of out-crossing with sexually compatible wild or cultivated neighboring plants. For self-pollinated crops, this technology should only be licensed for crops with demonstrated out-crossing rates of 2% or less.

C) Any royalties or licensing fees coming to USDA should be placed in a trust fund administered by the USDA with an external stakeholders panel approval. The sole purpose of this fund should be to support research examining the socio-economic impacts and the environmental and health risks of the Terminator or other technology protection system technologies and be directed to planting breeding for non (GE) crops.

D) Delta and Pine Land and USDA should agree to not apply for and enforce patent rights against, farmers or groups of farmers in developing countries and should not market or sell any Terminator seeds in such countries.

E) The Terminator should only be licensed for use in crops with newly developed traits. It should not be licensed for use on heirloom crops and their crosses or on conventionally bred varieties of crops or any varieties of crops existing on or before the year 2002.

F) The Terminator and other technology protection systems should not be licensed for use in any minor crops.

G) A review of the license agreement and its consequences by the USDA and the Justice Department for impacts upon the competitiveness in the seed industry, upon farmers choices in the market place and for any possible antitrust implications, with a commitment to forego any applications, which are found likely to increase seed industry consolidation.

H) Any license agreement should include an explicit commitment that products using the Terminator technology will not be eligible for the notice-only field testing under the Plant Pest Act; that a full permit process will be required for all field tests and commercial release of such products; and that the permit process will include a full Environmental Impact Statement encompassing evaluation of all health, environmental and socio-economic impacts.

III. The USDA should revise the policies guiding its decisions to enter into CRADAs in the future.

The USDA's participation in CRADAs should be an outgrowth of its understanding of the appropriate relationship between public and private research establishments. As the global flagship of publicly funded agricultural research, USDA should convene a stakeholder task force on the role of public funded agricultural research in an era of oligopolistic control of the food system and use that workshop as the basis of a statement on the role of USDA's agricultural research.

Once that is completed, the USDA should develop a system for evaluating whether proposed new CRADAs fit within the scope of USDA's mission as a publicly funded research establishment.

Submitted by the Following ACAB members, as of 8/25/00 (organizations listed for information only)

Carolyn Brickey (National Campaign for Pesticide Policy Reform)
Carol Tucker Foreman (Consumer Federation of America)
David Fredrickson (Minnesota Farmers Union)
Rebecca Goldburg (Environmental Defense)
Michael Hansen (Consumer Policy Institute)
Neil Harl (Iowa State University)
Mary- Howell Martens (Martens Organic Farm)
Mark Lipson (Organic Farming Research Foundation)
Margaret Mellon (Union of Concerned Scientists)
Michael Sligh (Rural Advancement Fund International)
Margaret Wittenberg (Whole Foods Market)

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