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Pioneer v. J.E.M AgSupply may sprout rude awakening by David Dechant
(Aug. 20, 2001 -- CropChoice opinion) -- A few years ago, JEM Ag Supply resold 600 bags of Pioneer brand corn seed. It would seem this shouldn't be such a big deal, because if one buys and pays
for some bags of seed, why shouldn't one be able to resell them? However,
Pioneer doesn't see it that way, as it has sued JEM. The case has been
appealed all the way to the Supreme Court, which will hear it in October. The
implications are enormous, both here and abroad. At issue is whether utility
patents can be extended to seeds or if the PVPA (Plant Variety Protection
Act) should be the exclusive means of granting IPRs (Intellectual Property
Rights) for seeds.
In addition to preventing the resale of its patented seed, Pioneer also has
used utility patents to prohibit other companies from using its varieties in
their breeding programs. Other seed companies have done likewise. So far,
only Monsanto has taken an extra step and prosecuted farmers for saving seed
for their own use. Utility patents may also be used to control who may market
and process crops grown from patented seed. For example, Podners LLC, a
Colorado company, uses its patent on yellow beans to prevent Mexican farmers
from selling their beans in the US without paying it a royalty. Ironically,
Mexicans have grown yellow beans centuries before Podners LLC came along and
Mexico is where it got its yellow beans to breed in the first place. Even
stranger yet is the fact that Mexicans' export beans are grown from their
indigenous seed and not Podner's patented variety.
Attempts to monopolize seeds are nothing new. Apparently, Thomas Jefferson
rejected the notion that someone could do so. While envoy to France, he
smuggled rice seeds out of Italy for planting in South Carolina and Georgia.
Also, he paid some Turkish spies to help him smuggle prized hemp seeds out of
China, where they were illegal to export and doing so was punishable by
death.
Interestingly, Jefferson played a leading part in writing the early Patent
Acts and administered the Patent Office for a time. If he had intended for
seeds and plants to be patented, he would have added them to the definition
of what can be patented. By today's rules, Jefferson probably could have
patented the seeds he smuggled. But, most likely, he never would have dreamed
that someone would try to do so. Neither would have another Founding Father,
George Washington, who emphasized the importance of saving seed in his
letters to his farm manager, William Pearce.
Of course, plant breeding has changed greatly since Jefferson's days. And
that's precisely why Congress recognized later on that a special form of
protection was required for new varieties of plants and seeds. It passed the
Plant Patent Act in 1930, for asexually reproduced plants, and the PVPA in
1970, for sexually reproduced plants. Congress has amended the PVPA several
times since, always making sure farmers could save seed for their own use, as
well as allowing the use of PVPA protected varieties in research and for
breeding new varieties.
Patents on seed are a relatively new phenomenon. In 1985 the Patent and
Trademark Office (PTO) decided on its own that plant varieties and their
seeds could be patented. Of course, by doing so, it completely ignored
Congress, which never intended for the PTO's utility patents to be extended
for seeds.
Many farmers think that only GMO seed is being patented. They are unaware
that the PTO grants patents on conventional seed, too. None of the corn seed
JEM resold was GMO, yet it was patented. So are many of Pioneer's
conventional, non-GMO soybean varieties, as well as Asgrow's, Stine's, etc. A
quick search, for example, on www.delphion.com for "Pioneer and corn" turns
up numerous patents for varieties, inbreds, and hybrids thereof, many of
which are non-GMO.
Monsanto's lawsuits against farmers for saving seed are now on hold pending
the outcome of Pioneer v. JEM Ag Supply. If Pioneer prevails, then Monsanto
will resume and intensify its prosecution of farmers. With the Supreme
Court's blessing, other seed companies will follow in Monsanto's footsteps
and also prohibit farmers from saving seed. Moreover, they will find ways to
patent any seed worth planting, whether it be GMO or conventional. Farmers
who think otherwise will be in for a rude awakening.
As for farmers abroad, they may eventually lose their historic right to save
seed, too. The US government and the multinational seed companies will put
renewed pressure upon other countries to adopt stricter IPR's for seeds. They
will use the WTO and trade related threats as tools. Patents on seeds will
even help seed companies justify the terminator gene as a means of patent
rights enforcement.
A ruling favoring patents will hurt public plant breeding, too. Already,
public plant breeders complain that there is less and less sharing of
information and germplasm, which is hurting their breeding programs and the
training of graduate students. It also means that public research
institutions can prohibit farmers from saving seed that they develop in part
or in whole, if they so wish, as the Bayh-Dole Act gives them permission to
patent their research. Consequently, public food and farm research will be
directed more and more towards satisfying the wants of business, as they will
buy rights to the patents or otherwise coop public research, and less and
less towards what farmers and consumers want.
What JEM did doesn't mean jellybeans to Pioneer. However, the legal
precedents this case will set could mean everything: a worldwide forced
expansion of the seed market, increased monopolization of germplasm, reduced
competition, including that from public breeding, and control of the crops
grown from patented seed. That's precisely why DuPont/Pioneer,
Monsanto/Asgrow, and the other multinationals very much want such cases to go
forth, especially being that they know they would have a hard time getting
their farmer and consumer unfriendly schemes pushed through Congress.
The Supreme Court would do well to recognize Pioneer v. JEM AgSupply for what
it is: a ruse to circumvent the will of Congress. It should rule against
utility patents on seeds. Then, if the biotech/seed companies want greater
IPR protection for their seeds, they can go to Congress. If we farmers are to
lose our historic right to save seed for our own use, then Congress should be
the one to take away what it took great strides to make sure we could keep in
the first place. Likewise, if public plant breeding is to be hurt because
patents override the PVPA's research exemption, and if the seed market
becomes more concentrated because small seed companies can no longer find new
breeding material, then Congress should be the one to do so.
Finally, consumers should really think what the consequences would be if the
production, processing, and marketing of food and fiber were to be
monopolized all the way from the seed to the grocery store. Though this may
seem far-fetched at the moment, the broad rights granted by utility patents
make it entirely possible. Again, Congress should be the one to define when
and to what extent such rights are justified. Otherwise, consumers may be in
for a rude awakening someday, too.
David Dechant is a Colorado wheat, alfalfa and corn farmer. | |
