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    A Defense Of Plant/Crop Related Patents
    By Steve Savage | March 9th 2013 12:33 PM | 14 comments | Print | E-mail | Track Comments
    About Steve

    Trained as a plant pathologist (Ph.D. UC Davis 1982), I've worked now for >30 years in many aspects of agricultural technology (Colorado State...

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    Patents involving plants are often portrayed as a seriously negative phenomenon.  In fact, they play an important and beneficial role in the development of better and more productive crops.  As I have watched the controversy around the role of patents, particularly as related to biotech crops, it seems that critics have little understanding of why the patent system was created in the first place, how the patent system actually works, and what patents do and don't mean in the commercial realm.

    I would like to explain why, rather than being some sort of sinister tool of conspiratorial control, patents on plant varieties and on biotechnology innovations are key drivers of the investment and creativity that we will need if we are to meet the food supply and environmental challenges that lie before us over the next few decades.

    The Grand Patent Bargain

    Patent systems were set up to provide creative people with the incentive to invest their time, money and talent in the development of inventions that could benefit society.  To do that, the following bargain was struck:  the inventor gets a specifically limited period with the exclusive right to derive economic returns from the sales/use of the invention only if they meet two standards.  First, they must make a sufficiently strong case that their invention demonstrates "novelty," and second, they must fulfill "the obligation to teach."  I'll unpack that below.

    Proving Novelty

    To receive a patent, an invention has to "exhibit novelty" meaning that it is different from similar inventions ("in the prior art"), and that novelty has to be something that is "non-obvious to one skilled in the art."  Anyone who has ever pursued a patent knows, it is quite hard to meet that standards.  Even after a patent is awarded, the novelty question can - and frequently is - disputed in court if the patent turns out to have any significant economic ramifications.  As I heard in my first company-sponsored training on the subject, "a patent is only a license to be sued."  The effort and originality involved in patenting of plant lines and of genes is often spoken of as if it is some trivial, and thus undeserving activity.  That is only believable if you've never engaged in the process.

    The Obligation to Teach

    When someone develops something new and hopes to profit from having done so, the main alternative to patents is what is called a "trade secret." If you pursue a trade secret strategy, you hope that the details of your product or process are sufficiently obscure that others can't imitate it.   To get the more certain period of exclusivity offered by a patent comes with a requirement that you explain your invention in detail sufficient to allow any qualified reader the ability to understand exactly what it is and how it works.  This "teaching requirement" is actually the genius of the patent system. To get temporary exclusivity, you have to reveal information that will very often give competitors ideas about how to do something even better or otherwise "work around" your patent.  Also, often years before a patent can get through the process to be awarded, it is"published" so that what you teach is available to everyone else sooner than you get the patent or even if you never get it. The system forces a level of idea-sharing that would never have happened without it.

    In my paying job as a technology consultant (as opposed to time I spend blogging), I frequently help companies monitor what their competitors and the academic community are doing in a specific area of science.  I find that recently published patents are an extremely useful window on such a question (try this yourself on the search page for the patent office.  type something like ttl/rose to see how many patent applications have been filed just for roses).  Mind you this is not a collegial exchange of information.  Between the dull, precise nature of scientific language and the obtuse nature of lawyer-speak, patent applications must be in competition for the most tedious form of writing (I know because I have to read these).  Still, it is a form of real idea exchange that is forced by the patent system.  The grand bargain works for the benefit of society.

    Who Patents Plants and Plant-related Technologies?

    The modern anti-biotechnology narrative would have you believe that certain companies (Monsanto usually being portrayed as the ultimate demon) are using patents in some new paradigm to "control the food supply." This view ignores the fact that plant variety patents have been a common feature of crop genetics since 1970 and that a great many of those patents are held by universities, by the USDA, and by similar international agencies (Patents for vegetatively propagated plants have been an option since 1930).  Actually, the most foundational tools of biotechnology for plant, pharmaceutical or industrial use were patented by scientists at Stanford University.  For a time, any group that did genetic engineering needed a license to the Stanford-held, Cohen-Boyer patents that are now considered a "gold standard" for university licensing.

    When, in the 1990s, commercial biotechnology entered the agricultural seed market space, the fact that such products were patented was nothing new.  For decades, commercial, academic and government researchers have typically patented their inventions.  None of this is sinister.  If someone develops a crop variety that has real economic value to farmers, it does not matter whether the innovation originated in the public or private sphere, it may well be patented.  For any entity to take the following steps to commercialize that trait, the temporary exclusivity afforded by a patent makes it worth their effort and investment to do so.

    How Much "Control" Does A Patent Provide?

    A patent on something like a gene for potential use in a biotech crop means very little by itself.  There are typically many patents covering parts of or steps in the process of bringing that trait gene to the market - often patents controlled by different entities.  For instance, as soon as genetic engineering became a possibility in the 1970s, many groups were interested in finding a way to make plants resistant to the very broad spectrum, low toxicity herbicide - glyphosate.  It turned out to be difficult to get a form of the effected enzyme, EPSPS that would not be inhibited by glyphosate but which would still serve its normal function for the plant.  It ended up requiring two distinct changes at different positions in the enzyme.  The group that finally generated a modified gene that did the trick (designated as "CP4") worked for a small start-up biotech company in Davis, California called Calgene.  The investors and scientists there were rewarded for that breakthrough when Monsanto commercialized the trait.  Still, that was only the beginning.  For this enzyme to function properly it has to move into the chloroplasts in the cell.  That means it has to be linked to a Chloroplast Transit Peptide and the patent for that was awarded to a European biotech company (there were several major European players in the early days of this science).  Monsanto had to pay a royalty to that company for rights to use the patented sequence.

    There are patents covering the steps required to actually get a new gene into a plant.  For some time, the preferred method of doing that has been with the help of an organism called Agrobacterium.  For many years, any company that wanted to use a special strain of that bacterium which would do that job with monocot crops (e.g. corn, wheat, rice...) needed to pay for rights to use a strain that was discovered by scientists at a Japanese company called JTI.

    Once a gene is successfully inserted in a particular specimen of a crop in such a way that it is expressed functionally and does not cause any other problems, such an "event" is patented.  This still means little in the commercial realm.  Next the trait has to be "introgressed into elite germplasm," meaning it has to be crossed using conventional breeding methods to get that trait into many of the best hybrids or varieties which seed companies have developed for specific geographies and/or specific uses.  This part of the seed industry is very competitive for the crops which have been engineered to-date.  A company that has developed a new trait has the option of only commercializing in their own seed lines or of licensing it broadly even to their competitors.  Monsanto picked the later path with their Roundup Ready Soybeans, and even though farmers rapidly adopted the technology and used it in over 90% of what they planted, those seeds were purchased from many different seed company competitors whose elite germplasm was every bit as important for the sale as that one trait.

    Of course patents have a finite term.  For instance, the key patents covering the original Roundup Ready Soybeans will expire in 2014 and Monsanto will have no future control of those lines.

    Patents also don't always block uses.  When Cornell University developed virus resistant papayas that could save the Hawaiian industry, Monsanto gave them rights to certain necessary patents for free.  Similarly, many companies have waived their patent rights for technologies involved in "Golden Rice." 

    Behind Each Patent, There Are People

    Part of why I am so positive about the role of patents in agriculture is that over the years I've had privilege of meeting many of the individual scientists who have been involved in the inventive process of plant biotechnology - the sort of innovations that can be patented.  The people I have met/known have innovated in both small and large companies, in universities and in the USDA and if you met them you would be impressed with both their scientific acumen and their positive ambitions for making a societal contribution.

    Cohen and Boyer taught sections of a biochemistry class I took at Stanford in the late 70s.  One of the inventors at Calgene that found the CP4 gene worked in the neighboring lab when I was a graduate student at UC Davis.  One of my previous employers had a partnership with JTI and I met scientists at their plant biotechnology center that came up with the monocot-specific Agrobacterium strain.  I have done projects in which I met several university scientists whose inventions were licensed by the companies that commercialize biotech and other crops.  I've met many of the scientists in the big ag/biotech companies and interacted at various stages of biotech crop development from ideas to full commercialization.  I wish you could meet these scientists.

    From what I have seen, the potential of patent protection has been an extremely important driver of creativity and of getting the resources necessary for scientists to be creative.  In every case what I've seen involves scientific rigor, real-world problem solving, and excitement about being able to make a contribution.

    I've seen universities get a stream of money to support additional research because of a patent they were able to license.  I've seen small companies reward their staff and investors because of important patents they generated.  I've seen the advanced level of scientific effort that is possible in large companies for whom the potential of patented products allows a high rate of plowing profits back into research - something that does not happen in the companies that sell generic products.

    Based on all these experiences, I cannot share the concerns that are being so widely expressed about the role of patents in agriculture.  In fact, I cannot imagine a path forward without them.

    You are welcome to comment here and/or to email me at savage.sd@gmail.com

    Patent image from Wikimedia commons


    Gerhard Adam
    I think you did a fine job of explaining the patent issue.  However, there are two questions/problems I would raise here.

    The first is that the issue of "prior art".  This is fine when it comes to inventions that are truly unique, but when it comes to biological systems we have to consider those that existed before [i.e. wild or unmodified varieties of plants/animals] and those that have been modified through some patentable process.  In biology there is no circumstance of where competition between such varieties isn't likely to occur, so part of the concern is that money-making ventures will tend to crowd out other forms of these organisms.

    As a result, the concern is that patentable plants/animals will take precedence over other such organisms to the point of where the latter eventually go extinct or become impossible to obtain without licensing.   For example, in animals such as pigs or cows, if a species becomes modified by a patentable process, what procedures are in place to truly segregate these from other animals so that every variety of that animal doesn't become patent protected?  After all, beyond the costs of initially acquiring the animals, today there are no costs associated specifically with breeding, so someone that has the basic money/resources [some land, grass, and water] can indefinitely raise their own beef or pork.

    So, again, the concern is whether this practice would be protected or subject to the possibility of these older species eventually going extinct in favor of only patentable versions.

    The second issue comes from the testing around genetically modified foods.  In that case, we have the standard of "substantial equivalence" which is used as a criteria to determine whether or not additional testing needs to occur to establish safety, etc.  So, how does this square with the argument that these plants or animals are substantially equivalent and therefore are safe, versus the point that they are supposedly unique enough to qualify for patent protection? 
    Mundus vult decipi
    As for your first concern, patents and the sales of proprietary seed actually bring about a level of investment and competition that drive continuous improvement.  The crops that are not hybrid-based and for which most seed is simply saved out of the harvest (e.g. wheat), are dependent on poorly funded public breeding efforts and thus they tend to lag behind in terms of yield progress.  The way to protect genetic diversity is not to grow lots of non-elite lines in farmer's fields, but to intentionally store it in seed banks are raise it as often as necessary to maintain viability.

    As for genetically engineered crops, moving around one or a few genes certainly does not change the fundamental nature of the crop.  Conventional breeding is making thousands of times as much change in the crop's combination of genes and yet we don't generally think of that is needing safety testing.  With a transgene, because you know what the gene is and how it is expressed you can logically consider whether the change is something that would require special testing.
    Steve Savage
    Gerhard Adam
    Conventional breeding is making thousands of times as much change in the crop's combination of genes and yet we don't generally think of that is needing safety testing.
    I often hear this, but expect that it's based more on public ignorance of what is occurring than tacit approval.  Certainly there are some that simply regard genetic modification as some "mad scientist" technology, but I expect that if more people understood just how much change occurs in our food, regardless of method, you'd hear more about safety testing.  After all, ignorance of a process isn't tacit approval of that process.

    Regarding the first point, I understand what you're saying and agree with your point.  I suppose my primary concern regards animals more than plants [just my own ignorance of the latter, I expect].  As a result, knowing how economic pressures work, there will be a tendency to reduce competition among species so that only the most profitable tend to be used.  As a result, there is still a sense that we are relinquishing too many of our freedoms to vested economic interests.  I understand the role of those involved in large scale production, but this is more about protecting the individual that isn't involved in business, but simply wants to grow their own food.

    Modern society has always been about reducing choices, not increasing them. 

    Part of the problem is that we, the public, have been kept in the dark far too long regarding the actual methods of production and GM foods have simply raised attention into areas that have been ignored. 

    Now one could readily argue that these steps are important in order to feed an ever growing population, yet to me that seems like a fool's errand, because we already know that we can never keep up.  So, until we get our population under control [and not merely invoking the magic incantation that somehow wealth will magically bring about a reduction], then we need to consider how much of our future choices we are mortgaging in our blind attempt to avoid population limits.
    Mundus vult decipi
    When you look at global demographic trends, birth rates have fallen greatly and what is going to keep us increasing until around 2050 is moderate reproduction rates from the recent generations which had much higher survival rates as infants than in the past.  Indeed, in some countries (like Italy, Russia and Japan) birth rates are alarmingly low meaning that there will be a difficult period when a very old population will have to be supported (or not) by a small younger demographic.  I remain an optimist that we will be able to meet future food demand because there are so many areas where all that is needed is to farm in the optimal ways we already know about.
    I don't really know that much about animal agriculture, but I do know that the genetics of cattle are more diverse than something like chickens.  We have a highly decentralized cow/calf industry run mostly be small, part-time operators.
    Steve Savage
    Gerhard Adam
    When you look at global demographic trends, birth rates have fallen greatly...
    Can you provide that data?  This seems to be a tacit assumption, yet there is no biological reason why this should occur, the wealth argument is simply magical thinking, so what is the basis for this?  Even more importantly, this great drop in birth rates is still a part of the U.N.'s high estimate, since even the U.N. calls the birth rates of 1995-2000, "impossible".  In other words, even a whole order of magnitude drop [which is the current rate] may still produce undesirable outcomes.


    What I find disconcerting, is that the assumption regarding population at 2050 is based on the U.N. demographic projections low or perhaps medium estimates.  Yet, the U.N. itself also provides a high projection, which everyone routinely ignores, because it wouldn't be good news.
    I remain an optimist that we will be able to meet future food demand because there are so many areas where all that is needed is to farm in the optimal ways we already know about.
    I don't share your optimism, because it hasn't even come close to being achieved today, despite possessing the means to feed everyone.  Technologically, I agree that the methods are available.  However, that isn't the problem and has never been the real problem. 
    Mundus vult decipi
    thank you very much for the effort you put into this article. I know its a lot of work...

    As breeders of non-toxic Jatropha (see: http://jatropha.bionic-enterprises.com) we are investing serious time and money in the development of a new bioenergy and animal feed crop. How could we ever recover our investment without proper protection of our IP? Especially looking at a perennial tree crop!

    The general public has been profoundly misled regarding the issues around plant patents and even more on the subject of GMO. Who understands the many positive implications of genetics without ever getting into artificial in-vitro genetic manipulation? And who understands why natural genetic manipulation like hybrid breeding is ok while GMO is not?

    Today international IP rights for plant breeders are an absolute mess, leaving a small breeder with essentially no means what so ever to recover his investments while the big fish can do what they want - more than ever before.

    Ulrich,Jatropha is a great example of a crop that will greatly benefit from breeding and other improvements, and your efforts certainly deserve protection.  I agree that the cost of filing broadly around the world does get to be prohibitive.  For instance the need to pay for each country in the EU is just dumb.  
    Steve Savage
    Great article. From my experience, the major problem on this topic is uninformed activists. Sometimes they conflate IP and risk assessment. An actual IP issue is whether or not farmers may reuse the seeds. Is whether or not farmers use seeds responsibly an IP issue?
    Randall Mayes
    I have no issue with plant patents. I see them as necessary for future development. What I do have a problem with is overly aggressive defense of these patents and the potential for crop contamination. I have yet to hear about a case of contamination followed by lawsuit but the threat is there. Let's say I was growing organic open pollinated corn saving the biggest and best ears every year. My neighbor starts growing Bt corn and some of his pollen blows in. I might not notice it that year, but perhaps as the years go on I think I have selected some fantastic insect resistant corn and I start to sell it as Nick's Select OP. Then I am sued by Monsanto, Dupont, or Syngenta (depending on which event blew in) for patent violation. I did nothing wrong, but will likely lose my battle in court and be highly unsuccessful for suing them or my neighbor for letting pollen blow in.

    I can't imagine a court in America will say you lose that case. Heck, the SC is giving a farmer a fair chance who blatantly violated the agreement about the seed he bought - he knew how to get around the agreement and did it and just didn't want to pay because it was for a second crop he said would have poor yield. I think we all appreciate the slippery slope aspect but there has to be a perfect daisy chain of events leading to anyone actually losing the case. That is why seed companies don't want to sue; the myth of suing is powerful but losing a court case would make them powerless.
    Patent law is strict liability, you are liable for violating the patent even if you weren't aware that you were violating the patent. And I think you are right that the seed companies may not be willing to pursue a case like this because it may set up a legal precedent that is not to their benefit. The only case that I am aware of that addressed pollen drift was rejected because no damages had yet occurred.

    I don't think even organic growers in the developed world grow much open pollinated corn, the productivity is so much lower than with hybrids.  Corn pollen also does not travel very far.  Even so, if this was the scenario it would be pretty clear if it was accidental because the trait would be present at a low percentage unless someone intentionally selected for it for several generations.
    Steve Savage
    The amount of open pollinated corn is certainly very small, but I run across it occasionally here in southern Florida. Commercial seed companies haven't done a great job making tropically adapted corn. I see stuff that was brought over from Cuba or Mexico. I know that corn pollen does not travel far, but I have seen plenty of farms separated by 50' or less, which is close enough. And in a place like Florida with intense insect pressure, you would likely be selecting for insect resistance when you chose your ears for the following season. Even removing the thought of selection, what about growers who are growing identity preserved non-gmo corn. They are having to change their production practices because of pollen drift from neighboring fields.

    I would agree that the insect pressure on Florida corn is intense and that the non-GMO corn might require some isolation - something that is done particularly for seed production of many crops, GMO or not.  Planting a perimeter of some dense, tall crop might do the trick.  If such things make that sort of production more expensive, those who wish to buy it should pay a bit more.  As with all identity preservation and specialty crop situations, there needs to be a reasonable tolerance set for "adventitious presence."  Again, standard industry practice from long before biotech.
    Steve Savage