Seed Matters supports Organic Seed Alliance via our Farmer Seed Stewardship Initiative. This blog post comes from OSA’s Director of Advocacy, Kristina Hubbard, author of the seed industry concentration report, Out of Hand.
The U.S. Supreme Court unanimously sided with Monsanto recently in a case that upheld the company’s right to prohibit the replanting of patented seed. The court ruled that the doctrine of “patent exhaustion,” which an Indiana farmer argued should apply after the first sale of patented seed, “does not permit a farmer to reproduce patented seeds through planting and harvesting without the patent holder’s permission.”
It is not surprising the court ruled in Monsanto’s favor. Still, the case had merit: Bowman wasn’t challenging Monsanto’s claims that he knowingly planted seed with its protected genetics. Instead, he challenged the way patent law is currently applied to self-replicating products – a worthy effort, considering the injustices patents on seed have sown across America.
To back up, it is relatively well understood that simply using seed with patented genetics – especially widely planted genetically engineered varieties, such as Roundup Ready soybeans – enters the user into a restrictive licensing agreement. Many farmers sign these agreements at the time of sale, which includes a prohibition on planting more than one crop. The seed packaging also states that simply opening the bag binds the user to the agreement.
Mr. Bowman thought that by purchasing soybean seed from a grain elevator he had found a legal way to plant seed from subsequent generations. He assumed the seed contained patented genetics but argued that the patent exhaustion doctrine allowed him to plant them anyway, without paying a royalty to the patent holder. The court said he was wrong. The Federal Circuit court ruled, and the Supreme Court agreed, that Mr. Bowman must pay Monsanto more than $80,000.
Needless to say, Mr. Bowman is not alone in his desire to use seed from subsequent generations for replanting. More than 150 farmers have been targets of patent infringement lawsuits filed by Monsanto. And legislative initiatives at the federal level also highlight the demand in the Heartland to regain control over seed. Rep. Marcy Kaptur, of Ohio, introduced legislation in 2004 and again this year to establish a registration and fee system that would allow farmers to legally save patented seed. In February, Rep. Kaptur expressed discomfort with the level of control companies have over the reproduction of a food crop. She also said: “Companies deserve a fair return, not an exorbitant return.”
We agree. Should developers of new seed varieties earn returns on their research and development investments? Yes, absolutely. But we believe patents on self-replicating seed – and any living organism, for that matter – are unethical and dangerous.
The law needs to change. In the meantime, there is an important role for the judicial system to play in teasing out the injustices of the current patent system. Indeed, we’re keeping a close eye on the outcome of this Supreme Court case that challenges patents on human genes.
Whether the recent ruling leaves a door open to further challenge how patents are applied to seed remains to be seen. Justice Elena Kagan’s comments suggest it does:
“Our holding today is limited – addressing the situation before us, rather than every one involving a self-replicating product,” she wrote. “We recognize that such inventions are becoming ever more prevalent, complex and diverse. In another case, the article’s self-replication might occur outside the purchaser’s control. Or it might be a necessary but incidental step in using the item for another purpose.”
Mr. Bowman was not only trying to save money, he was challenging a relatively new paradigm in agriculture. It is only since another Supreme Court decision, J.E.M. Ag Supply, Inc. vs. Pioneer Hi-Bred International, in 2001, that patent law – that is, the U.S. Patent Act governing utility patents, or “patents for inventions” – has been applied to living organisms.
Think about it. In less than fifteen years, many commodity crop farmers went from saving and replanting a portion of their harvest to largely buying new seed each year. This has increased farmers’ dependence on a highly consolidated seed industry that has narrowed crop genetic diversity. The transition has also eroded the self-sufficiency and financial security of the farms we rely on to feed us. And the trend is spreading across the globe.
It’s important to note that the exclusive right to market a seed product for an established number of years is not exactly controversial. The major point of contention, as demonstrated in the Bowman case, is a patent holder’s ability to control a self-replicating product after it is sold, generation after generation. In fact, this far-reaching ownership and control is precisely why Congress long opposed the inclusion of plants under the Patent Act.
Before the Supreme Court’s ruling in J.E.M. Ag Supply, Inc., seed developers largely relied on intellectual property protections afforded through the Plant Variety Protection Act (PVPA). In 1967, Congress rejected an amendment to the Patent Act that would have extended utility patents to seed. The PVPA, passed in 1970, represented a compromise: seed developers had exclusive marketing rights of their new varieties for 20 years (like a patent), but it included two critical exemptions: farmers could save seed (later amended to limit this to on-farm use only) and breeders could use protected varieties to innovate, including the development of new varieties. Utility patent protections provide no such exemptions, with devastating consequences.
Owners of utility patents on plants have far-reaching control over access and use of their protected products. A single patent, for example, can cover a plant, tissue cultures, seed, future generations, crosses with other varieties, and the methods used to produce it. Such broad claims are not possible under the PVPA. And, even more troubling, these broad patents cover traits that can also exist in nature, such as “heat tolerant broccoli” and “pleasant taste” in melons.
Patents have grave impacts on innovation, despite Monsanto’s assertion to the contrary. Public researchers note the constraints of patents and the restrictive licensing agreements tied to them. These agreements are onerous, dictating what kind of research can be conducted with patented seed and whether the findings can be published. The result is that patents effectively remove valuable seed varieties from the pool breeders rely on for improving our food crops.
That’s why it was disconcerting to read the justification in this week’s ruling that if the court didn’t protect how patents on seed are applied, the result would be “less incentive for innovation than Congress wanted” under the Patent Act. Yet, not only have patents slowed innovation, Congress never intended for patents to concentrate ownership of seed, or for utility patents to be awarded for seed at all, out of fear of curtailing innovation and competition in the marketplace.
This fear is now reality. Patents on seed have facilitated oligopolies in the seed marketplace. The profits earned from the exclusive ownership and licensing of patented seed products – bolstered by the right to restrict research and seed saving – has led to numerous buyouts. The Independent Professional Seed Association estimates the U.S. has lost at least 200 independent seed companies in the last 15 years. The seed industry is now one of the most concentrated in agriculture, where two chemical firms command more than 60 percent of the retail markets for both corn and soybeans. This level of concentration has left farmers with fewer choices and paying higher prices, and less control over what they plant.
The growing evidence that patents on seed are detrimental to the public good should raise eyebrows at the U.S. Department of Justice. At the agency’s 2010 hearing “to explore competition issues” affecting agriculture, hosted in Ankeny, Iowa, we actually thought it had. Assistant attorney general for the DOJ’s Antitrust Division, Christine Varney, highlighted the problem of patents in her opening remarks: “Patents have in the past been used to maintain or extend monopolies, and that’s illegal, and you can be sure, Secretary, that we are going to be looking very closely at any attempt to maintain or extend a monopoly through an abuse of patent laws.” Her comments were echoed by a farmer in the audience: “The utility patent is the strongest tool that’s creating monopolies and inhibiting the development of regional diverse seed companies that can be competitive.”
But our hope that meaningful action would follow was short-lived. The following year, Ms. Varney left DOJ (her departure was reportedly “a surprise to many”) and neither DOJ, nor its investigative partner, USDA, have acted on 15,000 public comments (many targeting seed) that they received in response to their inquiry about competition concerns in agriculture.
The agencies’ inaction, combined with the court ruling, creates a situation in which our government protects corporate control over seed.
Make no mistake: While the DOJ may have focused its investigation on the GMO marketplace, patent and competition concerns in seed are much broader. Conventional (non-GMO) varieties of seed are also increasingly being patented. And with Monsanto’s 2005 acquisition of the largest vegetable seed company, Seminis, the same contract that Mr. Bowman violated now appears on seed packets of vegetable varieties that are popular among backyard gardeners and farmers alike, including ‘Big Beef’ tomato, a variety that, as far as we know, doesn’t contain patented genetics.
And so we’re left with another important question: If our regulatory agencies are unwilling to confront the misuse of patent law in the context of seed, then what recourse do we, the people, have to ensure access to, and innovation in, seed?
For starters, despite a lack of acknowledgement in the Supreme Court ruling, there are appropriate intellectual property protections already available, including the PVPA. Congress could amend the PVPA to clarify its purpose to provide an exclusive means of intellectual property protection for self-replicating plant varieties.
Organic Seed Alliance and our partners are also exploring contracts that adhere to principles of an “open-source” seed model. We believe it is possible to receive fair returns on investments while fostering new research that addresses our most pressing agricultural needs, including farm-based innovation that results from saving and selecting seed. After all, our farming ancestors are responsible for the food crops we enjoy today.
The seed patent issue is not of concern only to the organic community. It’s not just about GMOs or Monsanto. This is a seed issue that impacts us all, regardless of our decisions on the farm or in the grocery store. Seed is as fundamental to life as the food and fiber it produces. By way of order, then, seed is more fundamental. And it belongs in the hands of the people, not the patent holder.