Why Patents Are Bad for Plants
Discussion
Lisa M. Hamilton:
"Myers contends that, when applied to plants, patents are stifling. They discourage sharing, and sharing is the foundation of successful breeding. That’s because his work is essentially just assisting natural evolution: He mates one plant with another, which in turn makes new combinations of genes from which better plants are selected. The more plants there are to mix, the more combinations are made, and the more opportunities there are to create better plants. Even some breeders who work for the companies that are doing the patenting still believe in—indeed, long for—the ability to exchange seed.
“It’s this collective sharing of material that improves the whole crop over time,” Myers told me. “If you’re not exchanging germplasm, you’re cutting your own throat.”
If all of this seems like the concern of a specialized few, consider that plant breeders shape nearly every food we eat, whether a tomato from the backyard or the corn in the syrup in a Coke. Because of intellectual-property restrictions, their work increasingly takes place in genetic isolation and is less dynamic as a result. In the short term, that can mean fewer types of tomatoes to plant in the garden, or fewer choices for farmers and, by extension, consumers. In the long term, it could hinder the very resilience of agriculture itself. Having access to a large genetic pool is critical for breeders who are adapting crops to the challenges of climate change. Every time intellectual-property protections fence off more germplasm, that gene pool shrinks.
What infuriates Myers, though, is that patents such as the one Seminis is seeking don’t just impede sharing; they deter others from using their own germplasm. As the examiner noted, Seminis’s patent application claims essentially all broccoli with an exserted head of a commercial size. If Myers’s plants are too similar to those grown by Seminis, he won’t be able to release his own variety for fear of patent infringement. Even if he did, no farmer or seed company would use it lest they be sued for the same violation.
“If they get the patent, they really hold all the cards,” Myers said, wasps buzzing around his feet. “Then it comes down to at some point deciding whether to continue my program or to hang it up. Sell off the germplasm…” His voice trailed off. Then he gave a sad little laugh. The only buyer, of course, would be Seminis.
Fueled by both frustration and outrage, Myers, Morton, and Goldman helped establish a subtly radical group called the Open Source Seed Initiative (OSSI) in 2012. Operating under the radar, its mission was to reestablish free exchange by creating a reservoir of seed that couldn’t be patented—“a national park of germplasm,” Goldman called it. By 2013, the group had two dozen members, several of them distinguished plant breeders from public universities across the country.
OSSI’s de facto leader is Jack Kloppenburg, a social scientist at the University of Wisconsin who has been involved with issues concerning plant genetic resources since the 1980s. He has published widely about the concept behind OSSI, and his words are now echoed (even copied verbatim) by public plant-breeding advocates in Germany, France, and India. As he explains it, for most of human history, seeds have naturally been part of the commons—those natural resources that are inherently public, like air or sunshine. But with the advent of plant-related intellectual property and the ownership it enables, this particular part of the commons has become a resource to be mined for private gain. Thus the need for a protected commons—open-source seed. Inspired by open-source software, OSSI’s idea is to use “the master’s tools” of intellectual property, but in ways the master never intended: to create and enforce an ethic of sharing.
Kloppenburg’s office plays to caricatures of lefty academics: every flat surface stacked with books and papers, a poster of Karl Marx on the wall. At OSSI meetings, amid a sea of plaid button-downs, he sticks out in his collarless, hemp-looking shirt. But he is fiery and, as one OSSI member says, “persistent as hell.”
“The reason I’m doing this,” he said, leaning forward in his creaking swivel chair, “is that I’ve spent the last twenty-five years doing the other thing, and what have we got?” That “other thing” has been exploring nearly every possible avenue to put control of seeds back in the hands of farmers and public-minded plant breeders: orchestrating international treaties, challenging interpretations of patent law, lobbying to amend the laws themselves—in other words, slow change. Indeed, over the course of three decades, it has felt to Kloppenburg like barely any change at all. Now nearing retirement, he wants action. He sees open source as a kind of end run. “The beauty of it,” he said, “is that finally we get to create some space that is ours, not theirs.”
As Kloppenburg talked about OSSI, he covered territory from the monopolistic tendencies of the American Seed Trade Association to Colombian peasant protests to the little-known story of German prisoners of war being used as forced labor in American corn-breeding fields. He pulled a hulking dictionary from the bookshelf and read aloud the precise definitions of “ownership” and “property.” He made it clear that while OSSI’s practical goal was to create a reservoir of shared germplasm, its true mission was to redistribute power.
In this era of ownership, the consolidation of seed companies has meant the consolidation of control over germplasm, the industry’s most essential tool. The plant breeders behind OSSI decry that trend for the constraints it puts on their individual breeding work, but they also see its damage in global terms. As founding member Bill Tracy, a sweet-corn breeder at the University of Wisconsin, articulated in his paper “What is Plant Breeding?”: “Even if we assume that the one or two companies controlling a crop were completely altruistic, it is extremely dangerous to have so few people making decisions that will determine the future of a crop…. The future of our food supply requires genetic diversity, but also demands a diversity of decision makers.”
People who sell seeds have always struggled with an inconvenient reality: Their merchandise reproduces itself. In the past, this has meant that farmers needed to purchase it only once, and competitors could make a copy by merely sticking it in the ground. In order for seeds to become a commodity and generate a profit, there had to be a reason for people to buy them year after year. Over the course of the twentieth century, the industry devised certain solutions, including hybrid seeds and “trade-secret” protections for their breeding processes and materials. But perhaps the most effective solution is the application of intellectual-property rights, of which the utility patent is the gold standard." (http://www.vqronline.org/reporting-articles/2014/05/linux-lettuce)
Alternatives to Open Source Licensing for Seeds
Lisa M. Hamilton:
"A sweet-corn breeder named Adrienne Shelton made the case that the “political jujitsu” of open-source software wouldn’t work for seeds. When computer code is written, she explained, the author automatically gets copyright. That ownership allows the author to then take out a copyleft that says the material can be used freely. But plant breeding isn’t governed by copyright law, and by breeding a plant one does not automatically own it. One would need to patent the plant first in order to then claim the “patent left” of declaring it open source. “Most of the people that would be supportive of what we are trying to do as open source,” Shelton said, “they probably would be very, very skeptical if we said, ‘Well, first we have to patent it.’”
An alternative would be to employ another of the master’s tools: contract law. No patent would be necessary. Instead, before receiving germplasm, a person would sign a license agreeing to the open-source rules. On the table in front of Kloppenburg lay a draft of such a license, but no one could suffer the legalese long enough to survive even the first page in that cold pile of paper.
Goldman tilted his head and looked at the license with concern. “I can’t imagine handing over a vial of seed and, oh, let me go to the copy machine and give you this seven-page, single-spaced document,” he said. “It seems incompatible with what we’re trying to do: the open seed, and then a license that if you want to understand, you need to ask your attorney.”
Discussion turned to the quick and dirty “bag tag” licenses modeled on the stickers that sealed boxes of software; by opening the box or bag, the user agrees to the terms. Could a similar mechanism be used to mark seed as open source? Would it be legally binding? No one was sure.
Kloppenburg directed the group’s attention to a series of slides on the screen behind him. They were advertisements for private security firms and other organizations that enforce plant-related intellectual-property rights in the United States, Europe, and South America. Many of the largest seed companies are partners, as are numerous land-grant universities, including the one where this meeting was being held. The “Farmer’s Yield Initiative,” or FYI, offered a toll-free hotline where callers could submit anonymous tips about people using patented seed illegally.
Heads shook in disbelief and disgust, but the point had been made: Intellectual-property protections work because of deterrence; the ill-fitting metaphor of seeds as software was held in place by fear. None of the OSSI members I asked was able to name a plant breeder who had been sued for patent infringement or broken contracts, and yet nearly every one of them was willing to abandon material he or she had been working on for years rather than test how forgiving the intellectual-property holders might be. Later, Bill Tracy, the sweet-corn breeder, put it bluntly: “If you fear the company, you’re not going to cross it and the patent works. If you don’t fear the company, it doesn’t work. It comes down to who has the most lawyers.” (http://www.vqronline.org/reporting-articles/2014/05/linux-lettuce)
History
Patents for Plants: how it came about
Lisa M. Hamilton:
"People who sell seeds have always struggled with an inconvenient reality: Their merchandise reproduces itself. In the past, this has meant that farmers needed to purchase it only once, and competitors could make a copy by merely sticking it in the ground. In order for seeds to become a commodity and generate a profit, there had to be a reason for people to buy them year after year. Over the course of the twentieth century, the industry devised certain solutions, including hybrid seeds and “trade-secret” protections for their breeding processes and materials. But perhaps the most effective solution is the application of intellectual-property rights, of which the utility patent is the gold standard. More commonly associated with things like electronics and pharmaceuticals, the utility patent is a fortress of protection. It lasts for twenty years and allows even inadvertent violations to be penalized. Since the Patent Act of 1790, its intent has been to inspire innovation by giving exclusive rights to reproduce or use an invention, allowing its creator to reap a just reward. It was in exactly those terms that Monsanto’s Vegetable Communications Manager, Carly Scaduto, explained the Seminis exserted-head broccoli patent to me. “On average, it takes Monsanto vegetable breeders between eight and twelve years to develop and commercialize a new vegetable seed variety,” she wrote. “Obtaining patents [is a way] for us to protect our time, ideas and investment spent to develop those products.”
It took seed companies nearly a century to secure that protection. As early as 1905, industry leaders advocated “patent-like” protection for plants, but they ran up against society’s ethical resistance to patenting a product of nature. This view was famously aired by the United States Patent Office itself in 1889, in its denial of an application to patent a fiber found in pine needles. If it were allowed, the commissioner reasoned, “patents might be obtained upon the trees of the forest and the plants of the earth, which of course would be unreasonable and impossible.” But many plant breeders insisted that their work was on par with that of mechanical and chemical engineers. Their desire to achieve the same exclusive control over their inventions eventually led to the Plant Patent Act (PPA) of 1930. According to the Committee Report accompanying the Senate’s version of the bill, the purpose was to “assist in placing agriculture on a basis of economic equality with industry… [and] remove the existing discrimination between plant developers and industrial inventors.” Thomas Edison, already a household name for his own inventions, was enlisted to lobby for the bill, and later lauded the PPA’s passage to a reporter from the New York Times. “As a rule the plant breeder is a poor man, with no opportunity for material rewards,” he said. “Now he has a grubstake.”
What finally became law was in fact quite narrow. Instead of allowing utility patents for plants, the PPA created a new “plant patent,” which applied only to plants reproduced asexually, like roses or apples, whose limbs are cloned. It excluded plants that reproduce sexually, through seed—which included wheat, corn, rice, and nearly every other staple food crop. The official reasoning was that sexually produced offspring weren’t guaranteed to be identical replicas of the original plant—“true to type”—and so enforcement of a patent would be difficult. (It is notable, though, that an additional exclusion was made for tubers, which reproduce asexually but include potatoes—another indispensible food.) Writing in the Journal of the Patent Office Society in 1936, patent examiner Edwin M. Thomas explained the true reasoning: “The limitation, ‘asexually reproduced,’ was put in the law to prevent monopolies upon the cereal grains or any improvements thereof, while the limitation, ‘other than tuber-propagated’ was introduced to prevent patent monopolies on potatoes, etc.” Congress had condoned the general concept of patenting plants, but it had drawn the line at patenting seeds of the sort that farmers plant and people eat.
By midcentury, the official reasoning was moot. Advances in breeding had enabled seed producers to ensure that their plants would grow true to type, leading the industry to renew its efforts for protective legislation. Its first victory was the Plant Variety Protection Act, approved in a voice vote by a lame-duck session of Congress, on Christmas Eve, 1970. The act granted intellectual-property rights that were much like a patent, but it was tempered by concessions to those who continued to oppose the exclusive control an actual patent would have granted: Farmers were allowed to save and replant seed from protected varieties, and researchers could use them in breeding their own plants. The real victory—the one the industry had been seeking for nearly a century—happened in 1980, when the US Supreme Court ruled that life forms could be patented if they were a new “composition of matter” produced by human ingenuity. That case concerned bacteria, but in 1985 the US Patent Office extended the logic to plants. By the time this policy was affirmed by the Supreme Court in 2001, already 1,800 utility patents had been granted on plants, plant parts, and seeds.
The availability of this long-sought protection transformed the industry by solidifying the opportunity to treat seed as a proprietary technology. Already the promise of genetic engineering was attracting investment from international chemical companies and others whose experience lay more with developing industrial products than with breeding plants. Wielding this newfound, impenetrable intellectual-property protection, companies like Monsanto, Ciba-Geigy (now Syngenta), and Dow redesigned the business using a revolutionary metaphor: Seeds were software. Genetics were improved almost surgically, with breeders altering DNA the way programmers rewrite code. The resulting corn, soybeans, and other commodities were modular components of a larger agricultural operating system, designed to work only with the company’s herbicides. Even some labeling began to take a play from Microsoft: The seller’s licensing agreement was printed on the back of seed bags in six-point font. Users didn’t sign it; as with a box containing a copy of Microsoft Office, they agreed to it by simply opening the package. Among other things, those terms specifically prohibited use in plant breeding.
Market analysts Phillip McDougall calculated that in 1995, right around the time the software metaphor began to take hold, the global seed business was worth $14.5 billion. By 2013, it had grown more than 250 percent, to $39.5 billion. Transparency Market Research, which calculates a similar figure for 2013, forecasts the business will grow to $52 billion by 2018. In this context, the patent office’s 1889 assertion that patenting the “plants of the earth” would be unreasonable and impossible sounds dated, if not naïve. Seen through the lens of this new metaphor, patents make perfect sense. If seeds are software, then protecting them as intellectual property is a natural, even essential, requirement for their technological development. In a 2004 legislative study, the United Nations’ Food and Agriculture Organization explained that this encouraged breeders “to invest the resources, labour and time needed to improve existing plant varieties by ensuring that breeders receive adequate remuneration when they market the propagating material of those improved varieties.” In other words, innovation no longer grew out of sharing, it came from monopoly. “In the absence of a grant of exclusive rights to breeders,” the report concluded, “the dangers of free riding by third parties would be considerable.” (http://www.vqronline.org/reporting-articles/2014/05/linux-lettuce)
The counter-trend
Lisa M. Hamilton:
"In 1997, as the laws of intellectual property had begun supplanting the ethic of sharing, a mild-mannered bean breeder named Tom Michaels also began thinking about seeds as software—but with radically different results. Michaels was struggling with the brave new world unfolding at his job in the University of Minnesota’s horticultural sciences department. Until recently, germplasm samples had simply been mailed between colleagues with no more than a friendly note, just as the exserted-head broccoli seed had been. But Michaels began to see this tradition of open exchange being curbed by legal documents that restricted research and demanded royalties. He tripped on the new vocabulary, which stipulated conditions about “unmodified derivatives” and “reach-through rights.”
“If you’re in plant breeding, you know you can’t do it on your own,” Michaels told me. “But I remember thinking, ‘If this is the direction we’re going, we all become islands.’ So what could we do to assure that we continued to work interrelatedly?”
During that time, Michaels’s computer-savvy son was messing around with alternative operating systems for his PC. Through him, Michaels learned about Linux and other software that was free to be used, altered, and shared by anyone. Linux came with a license that turned the concept of licensing on its head: Instead of restricting people from copying the product, it restricted people from restricting it or any of its offshoots. It marked the code indelibly as part of the commons.
One fateful morning in Minneapolis, Michaels awoke with a Linux-inspired epiphany: What if we did the same thing with our seeds? Just like hackers, he and his colleagues would make their germplasm “free” by attaching a license that kept it in the public domain. No one could patent or otherwise restrict it or its offspring. Over time, Jack Kloppenburg and others heard about the idea, and together they honed it into the shrewdly elegant concept of open-source seed.
When Michaels first presented his idea to a group of fellow bean breeders in 1999, it wasn’t greeted as a grand prophecy. Jim Myers was in the audience then and recalls that while he and others found it interesting, they simply didn’t feel a need for it. Intellectual property was on the rise, but utility patents were still rare in vegetable crops. There were, however, already more than 500 on maize, and at least 250 on soybeans; today, most germplasm of practical use for those plants is restricted as intellectual property, much of it by patents.
Because they comprise a smaller share of the world agricultural market, only recently have vegetables begun to attract the multinational investment and technological attention that commodities have had for decades. Also, because there are so many types of vegetables, and countless variations within each, they are much harder to blanket with intellectual property. Traded by gardeners around the world, vegetable seed still has a cultural identity—it is not yet simply software. Even within the industry, much of vegetables’ breeding and control of its germplasm remains in the public sector.
Kloppenburg sees vegetables as the realm where open source can take root. “Corn and soybeans don’t turn anybody on,” he told me. “Nobody eats corn and soybeans. But they do eat what our breeders are doing.” When he speaks with consumers about the open-source- seed concept, he asks them, “Do you want the same people who are breeding corn and soybeans to be making decisions about the stuff you buy at the farmers’ market? Or do you want Irwin’s beets and Irwin’s carrots?”
That Irwin is Dr. Irwin Goldman, the University of Wisconsin vegetable breeder in patent limbo with his red carrots. If Kloppenburg is the brains behind OSSI, Goldman is the conscience, as warm and sincere as Kloppenburg is intense. When asked a question, he sits with his head of curly gray hair tilted to one side, neck thrust forward, in a posture of really listening. When he answers, he often begins with, “That’s a great question.”
Curiously, despite his role as a founding member and unofficial vice president of OSSI, Goldman holds three utility patents on vegetables—two on beets, one on carrots. He explains that the patented vegetables are used to create industrial dyes and have little crossover with food plants. Plus, it was the university that sought the patents in his name. Still, Goldman offers the disclosure like a personal confession. His explanation for going along with it is that he was young and foolish, a new professor seeking tenure. At the time, his only reference point was his grandfather Isadore, a poor Russian immigrant who had designed and managed to patent a unique barber coat that didn’t collect hair in its pockets. His family had always been deeply proud of Isadore. When Goldman found himself listed as the inventor of those beets and carrots, he flushed with the honor of this parallel achievement.
“But over time,” he told me, “the experience of doing it made me realize what the implications of patents like those are. I asked myself, What would make me feel like I had made a contribution to the future—to a sustainable future?” After a hiatus during which he served as the college’s dean, he returned to breeding and devoted the rest of his career to developing germplasm that is “free and clear.”
Goldman agrees with Kloppenburg that vegetables are the most likely arena for OSSI to come to life. In his more hopeful moments, he envisions a food label alongside “organic” and “fair trade” that tells consumers their food is “open source.” But, he warns, if they are going to claim any significant amount of genetic territory, OSSI needs to act fast. Patents already cover everything from “low pungency” onions to “brilliant white” cauliflower, and a gold rush is taking place, with seed companies scrambling to claim what territory remains. Since 2000, lettuce alone has garnered more than one hundred patents; an additional 164 are pending. When Goldman went online to show me Seminis’s red-carrot application, his search brought up another, newer application for a different red carrot that he hadn’t even known about. During the writing of this article, seven more applications for patents on carrots have been filed.
“Open source still has a chance with vegetables, but our window is only as long as the bottleneck at the patent office,” Goldman said. “It could be a matter of less than a decade before what has happened with corn happens with crops like carrots and onions.”
On a sunny August day, at a research station in Mount Vernon, Washington, the men and women of OSSI were arranged around a flotilla of conference tables. The group was almost comically homogenous in appearance: two-dozen men with gray hair, glasses, and collared shirts; a dozen women, young and athletic, mostly graduate research assistants. Kloppenburg sat at the head of the tables in a linen shirt and a turquoise necklace. Goldman was at his side.
The group had convened in order to finally transition open-source seed from a clever idea to a legally defensible system. They were all clear on the basic principle—that, as Kloppenburg has written, “the tools of the master are repurposed in a way that…actively subverts the master’s hegemony.”But an hour into determining exactly how to do that, eyelids were drooping. The coffee machine began gurgling out refills. “OSSI has indeed found,” Kloppenburg would later write, “that the tools of the master are technically very cumbersome.” (http://www.vqronline.org/reporting-articles/2014/05/linux-lettuce)