Lentis/Patenting of GM Seeds

Introduction

While plant hybridization began in the mid 19th century with Gregor Mendel, the question of private plant ownership is only about 80 years old. The patenting of seeds is an even more recent phenomenon that began in the United States in 1970. Individuals or businesses can seek patents on any seed shown to be "novel", "distinct", "uniform", and "stable" (consistently reproducible).

This chapter concerns the overlap of intellectual property rights and seeds, not the much broader topic of genetically modified organisms (GMO).

History

Birth of Agriculture to Colonialism

Prior to the 19th century there was no notion of ownership over seeds, plants, or trees. Crops were frequently transplanted into "distant, but hospitable" regions. With the advent of European colonialism in the 16th century, nations began to jostle for control over native plants. Brazil, in the late 19th century, banned the export of rubber trees, but Great Britain managed to smuggle out seedlings. The notion that Great Britain owed Brazil compensation was foreign to either country.

19th Through Early 20th Century

As crop diversity increased in the United States, the Treasury Department stepped in and established a seed collection system. In 1857 the Patent Office "established a garden specifically designed to propagate and multiply seeds for widespread public distribution". The public programs were not met without opposition. The American Seed Trade Association (ASTA), established in 1883, lobbied for the disestablishment of public seed distribution. Congress eventually agreed, and in 1924 ended the program, marking the rise of the private seed manufacturer industry.

1930 to Present

The Plant Patent Act (PPA) was passed in 1930 and for the first time gave protection to modified varieties of plants. This Act was passed to benefit the horticulture industry by defining asexually reproduced plants as patentable. Luther Burbank was a highly influential botanist at the time. Throughout his lifetime, he developed more than 800 strains and varieties of plants. Although he died just four years prior to the Act being passed, his work spurred the PPA. For his contributions, Burbank was posthumously awarded patents for numerous of his creations. Although ground breaking, the PPA had very limited jurisdiction. Breeders who propagated their new crop varieties through planting seeds had no protection under this act.

Sa-horsegram

This remained the status quo until the 1960’s when a second movement began in Europe, which proposed to increase the patentability of intellectual property with regards to plant variation. The goal of the International Committee for the Protection of New Varieties of Plants was to incorporate “variety” protection into countries' legislations, and in 1961 several European countries signed The International Union for the Protection of New Varieties of Plants (UPOV) treaty in Paris. The United States, however, did not immediately sign and waited ten years to pass a similar legislature.

In 1970, the Plant Variety Protection Act was passed, providing intellectual property protection for sexually reproduced (i.e. seed-grown) plants. This act gave further protection for the creation in varieties of plants, yet was lacking in several regards. Certificates were granted by the Plant Variety Protection Office of the U.S. Department of Agriculture, and not by the U.S. Patent and Trademark Office. This meant that the PVPA was not the same as a patent law and thus did not give the same amount of protection. In addition, Congress specifically did not include micro-organisms among the living things that the PVPA protected.

This omission led to the controversy of the 1980 Supreme Court Case between Ananda M. Chakrabarty and Sidney A. Diamond Diamond v. Chakrabarty. Chakrabarty was a genetics engineer for General Electric and had discovered a bacterium that was able to break down crude oil. He proposed that the bacterium could be used in treating oils spills and tried to patent his creation. Sidney A. Diamond, the Commissioner of Patents and Trademarks at the time, denied Chakrabarty’s patent request for a bacterium, saying that the law did not allow for living things to be patented. The Supreme Court, however, upheld his patent by a 5-4 vote. The main point of discussion was upon the interpretation of 35 U.S.C. 101 (the United States Code on inventions patentable) which states, “Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title" (35 U.S.C. 101). The ruling of this case, that all micro-organisms were now patentable, has led our society into the age of genetically modified seeds. Companies such as Monsanto have since gained dominance of the genetically modified seed industry, resulting in a permanent change in the farming industry.

Proponents

Monsanto

Monsanto is the largest supplier of genetically modified seeds in the world. They claim that the technology their company develops will help farmers meet the demands of the expanding world population. Their company’s goals include increasing farm production, improving sustainable agriculture methods, and various humanitarian efforts. They say that they “work hard to support the family farmer in a variety of ways”.

Monsanto has grown to claim over 90% of the world’s genetically modified seed market. It is difficult for other companies to challenge their market share because they hold so many key patents and their patented genes are so wide-spread through the genome of modern corn. Monsanto’s 90% of the genetically modified seed market makes up 40% of all corn seed worldwide and 25% of all soy bean seed worldwide.

Monsanto’s contracts helped them to dominate the seed industry: in contracts with smaller seed producing and distributing companies using Monsanto's patented seeds, agreements are included which require that if the smaller company changes ownership, all of its inventory with Monsanto’s traits “shall be destroyed immediately”. Seed companies are essentially prevented from selling to anyone but Monsanto, because if they sold to anyone else they would have to destroy their entire inventory and have significantly less to sell.

Pioneer Hi-Bred

Pioneer Hi-Bred, a subsidiary, is the second largest supplier of GM seeds in the world. They argue that the ability to patent seeds creates a competitive market. This encourages innovation and keeps prices down for farmers. In a March 2011 report titled, "Comments of DuPont/Pioneer Hi-Bred International Regarding Agriculture and Antitrust Enforcement Issues in Our 21st Century Economy", Pioneer describes "the food we eat today" as "a human invention - no doubt the most successful human invention in history." Pioneer naturally looks to protect the seeds they develop by understanding food as a commodity.

However, Pioneer is not fully supportive of the current status of seed patents in the United States. In the same report, and in other media releases, Pioneer argues against the monopoly it believes Monsanto has created. Although they fully support intellectual property rights for seeds, they argue for greater diversity among competitors in the market.

Opponents

Opponents of seed patenting focus largely on two questions. First, is the patenting of life ethically permissible? What are the dangers associated with allowing a handful of corporations to control a large percentage of food production?

Ownership of GMOs is intertwined with other sociotechnical issues related to industrial agriculture, including the production of high fructose corn syrup and corn fed beef. Opponents of GM seed patenting will often point to these examples as well.

International Federation of Organic Agricultural Movements

IFOAM reported on a 2005 European Patent Office decision to deny a patent on the Neem, a tree native to India. A former president of IFOAM, Linda Bullard, worked on the case and supported the EPO's decision, saying, "We were able to establish that traditional knowledge systems can be a means of establishing “prior art” and thus used to destroy the claims of 'novelty' and 'inventiveness' in these biopiracy patents." Her comments are representative of the often cited argument that credit should be given to the long history of seed cultivation, rather than the last group to alter a strain. This case was the first legal challenge to biopiracy.

Religious Groups

The Catholic Church sees great danger in the patenting of life. A paper by a Franciscan published in the Journal of Agricultural and Environmental Ethics reads,

"The unprecedented expansion of life patents raises troubling issues in social ethics. The privatization of germplasm formerly considered the common heritage of humankind is incompatible with notions of the common good and economic justice."

Wendell Berry

Wendell Berry, a Kentucky farmer, novelist, poet and essayist, has said the following concerning Monsanto and its strategies for controlling the market using terminator seeds:

“In a total economy, all materials, creatures, and ideas become commodities, interchangeable and disposable. People become commodities along with everything else. Only such an economy could seek to impose upon the world's abounding geographic and creaturely diversity the tyranny of technological and genetic monoculture. Only in such an economy could "life forms" be patented, or the renewability of nature and culture be destroyed. Monsanto's aptly named "terminator gene"—which, implanted in seed sold by Monsanto, would cause the next generation to be sterile—is as grave an indicator of totalitarian purpose as a concentration camp.”

Haitian Farmers

Monsanto has a patented trait present in most of their seed called a “terminator gene”, which prevents the next generation of seed from being fertile. This is a threat to many small farmers, especially in third world countries, who have relied for generations on saving seed from the previous years to plant the next year. The terminator gene, if it became a part of the corn genome in those parts of the world, would essentially make this practice of saving seeds impossible, forcing the farmers to buy new seed each year, which many if not most cannot afford to do.

After the earthquake in Haiti, many farmers lost their seeds that had been saved from the previous year either because they were destroyed in the earthquake or used afterwards as desperately needed food. Monsanto donated seed to these farmers who needed it, but the seed they donated was terminator seed. While in the moment this was very helpful and allowed farmers to plant a crop, it would result in the same situation the next year: farmers would have no usable seed to plant and would be thereafter dependent on seed companies like Monsanto to purchase seed from each year, which was something they could not afford to do. Farmers saw this as an attack on their way of life, forcing them to come back to Monsanto each year to buy new seed. Relevant groups in Haiti representing the interests of these farmers saw this as an attempt to take advantage of a desperate situation in order to capture a new market.

Law Suits

Amongst the numerous cases over the intellectual property rights of seeds, several significantly helped to define legislation like the Plant Variety Patent Act.

Asgrow Seed v. Winterboer

In 1995 Asgrow Seed sued the Winterboer's of Iowa for allegedly violating the PVPA by selling Asgrow patented seeds to neighboring farmers. Note 2 of section 2543 of the PVPA states:

"It shall not constitute infringement, subject to subsections (3) and (4) of the Act, for a farmer to save seed which was obtained from the owner of the variety to be used in the production of a crop for use on his farm, or for sale."

The case made it to Supreme Court. Justice Scalia wrote in the majority decision that farmers are authorized "to sell for reproductive purposes", but not seed saved "for the very purpose of sale or replanting".

J.E.M. Ag Supply, Inc. etal., v. Pioneer Hi-Bred Int'l

In 1998, Pioneer Hi-Bred sued the small seed company, Farm Advantage, for reselling patented seed. Farm Advantage's defense rested on the exclusion of utility patents from those protected by the PVPA, and the resulting invalidity of the Patent and Trademark's Office (USPTO) to extend utility patents to sexually reproducing organisms. Justice Thomas, a former lawyer for Monsanto, arguing against the historical context of the PPA and PVPA, ruled that Pioneer Hi-Bred's utility patents were legitimately granted and protected by the USPTO.

Monsanto Canada, Inc. v. Percy Schmeiser

This, perhaps the most famous, Monsanto court case centered on whether intentionality affects patent infringement. This widely analyzed decision stated that although the farmer, Percy Schmeiser did not want, or initially know, that Monsanto seeds had blown on to his property and cross-bred with his plants, he had infringed upon Monsanto's intellectual property rights.