Patents and Seeds

From Wikimedia Commons

One of the common criticisms that I read about "Big Ag" is that our food should not be patented. This is the first in a multi-post series looking into the topic of intellectual property surrounding seeds.

I have a few disclaimers here. First of all, there are very few scientific publications on the topic of seed patents. So most of my research was done reading the information from court cases, company websites, Wikipedia, and news sources. Second of all, I work for biotech companies who are able to make their profits and pay me due to patenting laws. As my husband says to the kid every morning when I leave the house "Mommy is going to go bring home the bacon" (on some joyous occasions, that's a figurative AND literal statement.... Mmmmmm... Bacon-topped meat loaf...). I am only able to do so because the companies I work for make unique products whose patents are vigorously protected and defended. Even when I went through grad school, we signed documents regarding patents (and how anything we discovered would be property of the University/Hospital). I work on products that take years to make, millions of dollars in investments, and countless hours of work from teams of researchers. To have that reverse engineered and remade elsewhere in a few months would be disrespectful to our work and disingenuous at best. As such, I believe that patents have a purpose, which is the same purpose as copyrights/patents on art, music, electronics, and software: to respect the work of its authors. But I agree with the President's statement at the State of the Union address, where he mentioned that patent laws need to be reformed, because frankly, some patents are just ridiculous (I was quite happy the Supreme Court ruled against the patenting of naturally occurring genes).

With that in mind, let's investigate the topic of intellectual property surrounding seeds.

I began by reading the Wikipedia entry on the International Union for the Protection of New Varieties of Plants (UPOV), as well as UPOV's website. This organization was established about 50 years ago with the express purpose of protecting new varieties of plants with Intellectual Property laws. The organization has a long list of member nations, including the US, Canada, Chile, and many nations in the EU. Interestingly, the plants protected under its laws are not only genetically modified plants, but also plants generated through traditional breeding (see previous post on this topic). In order to be granted breeder's rights, the plant variety must be new, distinct, and must be genetically stable and uniform (basically meaning that each seed should be genetically identical to the next). The breeder's rights are then protected through legislation in each member nation. Breeders can license their technology to other companies or institutions.

There are also exemptions, including uses such as research and subsistence farming. My understanding of that is if I plant a few seeds in my backyard for my family and don't sell anything, then I'm not violating any laws. So I think you're in the clear if you plant seeds from the delicious butternut squash you bought at the grocery store.

Before moving on, let me reiterate that GM seeds are not the only plants to have patents. Check out this database with a whole slew of patents, most of which are not transgenic plants. The patenting of seeds is much broader than just GM crops. Keep in mind that developing a novel traditionally bred plant also takes much research and trial/error. Pluots didn't just appear in a day :) During a trip to Singapore, we learned that they have research facilities dedicated to generating new orchid strains and that orchid sales are a major source of income to the nation, so decorative plants are also the result of biotech.

Next question: how do breeders make their money if you can just replant seeds from one year to the next?

Before I started writing FrankenFoodFacts, I had heard about Terminator Gene technology and had been under the impression that all genetically modified seeds used this technology. If you haven't heard about it, it's a seed from the future that returns to save the world from doom. Hilarious!! Actually, the gene that is modified in these crops makes the seeds sterile, so you would not be able to replant seeds from one year's crop to the next. It would effectively force farmers to repurchase seeds every year. If you search the interwebz, there's plenty of noise on how Monsanto is destroying the world with these seeds (see here and here). But the thing is that there is no commercially available crop with Terminator Gene technology. Monsanto's website states that they have made a commitment not to use this technology in food crops. Whether or not you believe their promise, the fact remains that they have not used it to date even though they've had the technology in their hands for over a decade.

So instead of using Terminator Gene technology, Monsanto and its customers sign a contract called the "Monsanto Technology Stewardship Agreement" or MTSA (yeah... it's a pretty marketing-y name) and they obtain an annual license. Syngenta has a very similar agreement. As part of the agreement, you commit not to sell or distribute the product in regions where the product is not registered. You agree to follow all the directions and instructions for growing the product, particularly EPA restrictions. The document outlines that if Monsanto believes that a customer has retained seeds, the company will request all the appropriate documents to determine if new seeds were purchased. Monsanto also has the right to test and inspect a grower's field (although I'm not sure how this right is exercised if the suspected grower doesn't have a relationship with Monsanto... Maybe through a court order?). Bayer CropSciences website didn't have their method for licensing enforcement outlined, but agreements between farmers and Ag companies seem to be the norm. As far as I can tell (and unlike my cell-phone plan), farmers are not locked into a multi-year contract, so they can choose to plant a different vendor's seeds whenever they want (please ping me if I'm wrong).

One really interesting thing I learned is that Monsanto customers who purchase crops that have the Bt trait have to plant an insect "refuge" (page 4 in the link). For an explanation on the Bt trait, please see previous posts or Wikipedia. Anyway, the insect refuge is a portion of the land that is planted with non-Bt crop. In the scenario where an insect has mutated to resist Bt and survives within the Bt-crop field, it will hopefully mate with a "normal" insect that is happily chomping away in the non-Bt portion of land. This will lead to baby-insects that are susceptible to Bt. Therefore, you don't end up with "super-insects" that might take over the land and reenact Starship Troopers.

The next thing I wanted to learn about was the subject of lawsuits. Something that I've read time and over again is that Monsanto routinely sues farmers whose fields are contaminated with GMOs.

But this is getting quite long, so you'll have to read part 2 next week.

If you have any questions or aspects of patents that you want me to look up in this multi-part series, please comment below. Or you can email me at my brand-spankin'-new email address biochica.gmo@gmail.com