Updated: Mar 21, 2020
Let's say you wanted to grow tomatoes in your backyard. But you don't want to just grow any tomato, you want a San Marzano tomato. These are the tomatoes your grandmother would use for her pasta sauce whenever she would make you her famous shrimp spaghetti. But unfortunately, you're not allowed to grow that specific tomato. No, it's not deemed poisonous by the Food and Drug Administration. No, it's not a rare type of tomato. However, you cannot grow that particular tomato because someone owns its rights. What you might ask?
Yup, someone has a patent on that tomato plant. Shocking.
To one's surprise, patents on plants have been around for a long time. However, its existence continues to pose significant burdens on American farmers' ability to produce new and exciting crops. With a majority of license of seeds owned by large agribusinesses, farmers are inhibited by the threat of unexpected lawsuits on production.The Open Source Seed Initiative offers a relief to these burdens to farmers by creating a mechanism through which plant breeders can designate the new crop varieties they have bred as open source.
What are Plant Patents?
A plant patent is like a typical patent on a technology or device, except it applies to new varieties of plants. According to the U.S. Plant Patent Act of 1930, which was revised in 1995, a plant patent is valid for a period of 20 years from the date of filing (Botswick, 2009). The permit allows the patent holder to control who grows the plant, how it is used, and even the importation of the plant.
There are two steps in "inventing" a plant. First, plant patents are only available for plants that are new and distinctive. Second, a person can only obtain a plant patent if he or she is able to asexually reproduce the plant. This means that the plant can be reproduced through means other than by seeds, such as by cutting or grafting the plant. Asexual reproduction is a requirement of a plant patent because it ensures that the applicant is able to duplicate the plant. Moreover, in order to receive patent protection, the plant can't be a tuber propagated plant, like an Irish potato, or a plant that is in an uncultivated state (i.e. found in the "wild") (FindLaw, 2020).
How Do Patents Affect Farming?
In the early days of plant patents, its restrictions encouraged farmers to collaborate with each other to develop new and improved food crops, which would benefit all growers and American consumers.
However, a 2001 Supreme Court case titled J.E.M. AG Supply Inc., d/b/a Farm Advantage Inc. et al. v. Pioneer Hi-Bred International Inc., ruled that patents could be issued for plants developed through genetic engineering or other breeding techniques (Botswick, 2009). Consequently, most plant patents today are filed and granted by large scale corporate farms and agribusinesses.
The United States was the first to introduce the concept of patenting living materials in the 1980s which led to other Western countries joining its practice. The number of patents on plants worldwide has increased a hundredfold from just under 120 in 1990 to 12,000 today (Schauenburg, 2019).
As a result of the growing use of patents in the agricultural industry, farmers are stopped by the nuanced restrictions on plant traits which leads to accidental legal violations. For example, a patented pollen that is blown by the wind could unintentionally cause an intermixing of genetic material found in different fields.
This was the case in 2004, when a multinational company called Monsanto sued a Canadian farmer named Percy Schmeiser for replanting soybeans during a harvest without the corporation's permission (Schauenberg, 2019). The farmer responded, claiming that his field had been contaminated years ago by genetically modified pollen owned by the corporation. Fortunately, while the court ruled in favor of the Monsanto corporation, the court mitigated Schmeiser's charges due the small amount of patented genes found in his crops lacking any competitive advantage. While the outcome of this case wasn't drastic, it goes to show the how understanding these licenses and technology user agreements issued by seed companies is becoming critical as farmers face more lawsuits over patent infringement on their plants.
Source: DW - Traits of ancient varieties which are bred into new varieties have been patented as inventions
Along with understanding these agreements, farmers must learn how to make changes to their own practice and seed purchasing to perform within the "boundaries" of agricultural industry. By patenting a plant or a plant's traits, the patent owner has mostly exclusive rights to breed, grow and sell the product. This restricts farmers from sowing, planting, harvesting or breeding that variety without permission.
Plant patents can provide agribusinesses, such as Monsanto, the ability to acquire monopoly rights over all seeds, plants and fruits with the same trait. However, it can block farmers' access to genetic material and minimize biodiversity (the diversity of species), all of which increase farmers' dependency on seed producers (Schauenberg, 2019).
If a patent is granted on a plant, the breeder not only ‘owns’ the plant, but gets subsequent rights on all its genetic traits. This is logical if applied to genetically engineered plants, as those plants are defined by the specific trait present only in that species.
Therefore that same hypothetical patent on the San Marzano tomato, we mentioned at the beginning, can actually cover hundreds of tomato varieties. It can also cover its seeds, and potentially the seeds of other varieties. This could ultimately lead to one patent owner having legal rights to all tomato plants and seeds (GardenOrganic).
The Open Source Seeding Movement
The Open Source Seed Initiative (OSSI) was established in May of 2012 in Minneapolis, Minnesota. Twenty people attended the congregation, representing a range of perspectives and interests, including academics, plant breeders, the seed trade, farmers, indigenous people, and more. These people shared a deep concern over the way in which intellectual property rights are being used to enhance the power and control of a handful of companies over seeds and farming practices. As a result of their coming together, OSSI gradually formed into an education and outreach platform that "promotes sharing rather than restricting access to plant germplasm, recognizes and supports the work of plant breeders of all kinds, and supports a diversified and decentralized seed industry" (OSSI, 2016).
OSSI works by collaborating with plant breeders who commit to making one or more of their varieties available exclusively under the OSSI Pledge: "You have the freedom to use these OSSI-Pledged seeds in any way you choose. In return, you pledge not to restrict others’ use of these seeds or their derivatives by patents or other means, and to include this Pledge with any transfer of these seeds or their derivatives" (OSSI, 2016).
Source: Open Source Seed Initiative - Individuals can purchase OSSI Pledged seeds from Seed Company Partners under the "freed seed" label.
Under this agreement, “OSSI Seed Company Partners” agree to sell at least one OSSI-Pledged variety labeling its seed packages with the OSSI logo and/or name, to acknowledge the OSSI breeder in variety descriptions, and to include the Pledge and information about OSSI on their own media (i.e. catalogues and websites). The Seed List of OSSI-Pledged varieties also provides complete descriptions and photos for each OSSI-Pledged variety and links to every OSSI Partner Seed Company that carries each variety. Through its educational and outreach activities, OSSI creates awareness of the social value of purchasing “freed seed.” Via its website and outreach materials, OSSI guides farmers and gardeners to its Seed Company Partners. Throughout these operations, OSSI creates a niche market for ethically produced plants under the “freed seed” distinction similar to markets for “fair trade” and “organic” products.
As a result of these operations, OSSI’s first three operational years have been very successful. OSSI’s seed list currently includes over 350 varieties contributed by 38 OSSI Variety Contributors. In addition, seeds of these varieties are available from 51 OSSI Seed Company Partners (OSSI, 2016).
While OSSI is still a somewhat small movement and has not yet found an efficient way to track sales of OSSI-pledged seeds across companies (Weidner, 2019), the initiative is leading the way for open-source seed pledging and ethical agricultural production.
OSSI has become a powerful tool and symbol of resistance against corporations’ hoarding plant genetic resources. As it works with various partner breeders, OSSI-pledged seed purchases reinforce the notion as a seed-saving as an inherent right.
Overall, the Open-Source Seed Initiative is a reminder of what such a collaborative movement can do to eliminate the current obstacles in the agricultural industry:
- Increased prices for farmers and consumers: Large agribusinesses will be free to determine the prices for their seeds, at the costs for farmers, and ultimately, consumers.
- Less innovation: Patents can be used to block access to the biological diversity needed by other breeders and farmers to breed and grow.
- Less biodiversity & variety: Growers will have restricted choices and gradually the diversity of species and genome types will decrease.
- Endangered food security: Given reduced diversity, crops are less capable of adapting to diseases or changing environmental conditions (such as climate change)
Admin. (2018, January 12). History. Retrieved March 21, 2020, from https://osseeds.org/the-open-source-seed-initiative-growing-access-to-a-liberated-domain-of-plant-genetic-diversity/
Botswick, H. (2017, August 8). Plant Patents: How Has This Altered Farming Practices? Retrieved March 21, 2020, from https://www.legalzoom.com/articles/plant-patents-how-has-this-altered-farming-practices
Claire. (2020, January 27). Welcome to the Open Source Seed Initiative. Retrieved March
21, 2020, from https://osseeds.org/
The dangers of seed patents explained. (n.d.). Retrieved March 21, 2020, from https://www.gardenorganic.org.uk/seed-patents-explained
Weidner, M. (2019, April 23). Open-Source Seeds Keep Big Ag out of Home Gardens. Retrieved March 21, 2020, from https://medium.com/asparagus-magazine/open-source-seed-initiative-home-garden-intellectual-property-rights-patent-corporation-7c30e62ac773