“Small-scale farmers concerned about plant patents: the appropriation of nature’s creations.”
For close to four decades, Frank Morton has been creating new plant varieties through breeding. Lettuce in particular caught his interest, and he focused on developing unique salad greens, which were not commonly found in the fresh produce industry. With the help of organic farming methods, the 68-year-old Morton successfully produced completely new types of lettuce and went on to establish his own company, Wild Garden Seed, based in Philomath, Oregon, with his wife Karen.
Despite his passion for the job, being a small-scale plant breeder presents its own set of difficulties. Throughout his career, Morton has observed the seed industry being dominated by big corporations who have utilized utility patents to assert ownership over seeds as if they were inventions.
A utility patent safeguards an innovation from being utilized, copied or traded without authorization. This has left smaller-scale breeders in a state of uncertainty, often unsure of which actions are permissible when creating new plant varieties.
In 2021, Morton personally witnessed the impact of patents. He gave his customer, who is also a plant breeder, a sample of his “Funny Cut Mix” lettuce variety. The lettuce was a combination of red and green heads with spotted leaves of various frilly types. The customer intended to include the “Funny Cut Mix” in their lettuce trials, which are used by plant breeders to assess the performance of a variety in a particular setting.
After a few months, the customer notified Morton that his “Funny Cut Mix” would no longer be included in future trials due to its resemblance to the patented lettuce variety known as Salanova, which is owned by Dutch company Rijk Zwaan. Despite not using any patented materials in the development of his mix, Morton’s variety was excluded solely based on its visual similarity to the patented lettuce.
Morton does not hold his customer responsible. Instead, he identifies the restrictive nature of utility patents and the fear it creates among small-scale seed breeders.
I am attempting to participate in a competition but I am unable to because they refuse to compare my lettuce to a patented one as a precautionary measure.
In 1980, the Supreme Court in the United States made a decision in the Diamond v Chakrabarty case that allowed patent protection for living organisms, including plants. This means that seeds, which have traditionally been saved and exchanged by farmers for centuries, can now be considered as inventions that can be claimed by companies. When a utility patent is granted for a specific type of seed, the company not only owns the seed itself, but also its characteristics (such as color, texture, and disease resistance), any future generations of that seed, and all research rights pertaining to it.
If a plant breeder, such as Morton, creates a new type of lettuce that shares any characteristics with a patented variety, such as color, leaf curliness, or climate adaptability, they may be considered to be breaking patent laws and could potentially face legal action from the patent holder. Examples of utility patents include “Brilliant White Cauliflower”, “Pleasant Tasting Melons”, “Red Lettuce”, and “Heat Tolerant Broccoli”. Some patents are very detailed and can span up to 50 pages in length.
Morton stated that they are essentially describing plants obsessively and making claims about their traits. If anyone else has those same traits, they are considered to be in violation.
The purpose of the US patent system is to foster competition and stimulate innovation. However, it has also allowed for major corporations to obtain patents for numerous plant varieties and characteristics, resulting in the restriction of genetic resources that have been traditionally used by seed savers for many years.
Currently, only four corporations, namely Bayer, DowDupont/Corteva, ChemChina-Syngenta and BASF, dominate more than 60% of the global seed market. Bayer specifically possesses 20 diverse types of lettuce, a few of which have been under their ownership for more than ten years. Each patent includes a thorough inventory of the variety’s features and attributes.
According to Phil Howard, a professor at Michigan State University, the system favors large and influential companies by providing them with the means to create and protect patents. Due to the complexity and uncertainty of patent laws, smaller breeders may be unsure if the seeds they wish to use are already patented. This limits their ability to engage in experimentation.
Large companies may use intimidation tactics to make seed breeders believe that there are wide patent protections for many seeds, even when that is not the case. The lack of transparency and complexity in the industry heavily favors these large companies and creates obstacles for smaller firms.
Adaptive Seeds is a company that produces organic seeds without the use of chemical fertilizers and does not claim any intellectual property rights. This means that their seed varieties can be openly saved and shared by anyone. In April 2020, the company received a letter from BASF, a multinational chemical company based in Germany and the owner of Nunhems, the fourth-largest vegetable breeding company in the world. The letter did not explicitly accuse Adaptive Seeds of using patented material, but did mention specific seed varieties and traits that Nunhems had patented. This served as a worrying reminder of the extensive control that BASF has over various traits and varieties.
In 2009, Andrew Still founded Adaptive Seeds due to his observation of the growing consolidation in the seed market. When developing new seeds, Still typically utilizes open-source and non-patented seeds. However, the concept of patents can be complex, causing concern about unintentionally using a large corporation’s patented materials, according to Still.
“There is a constant worry that at some point, they will accuse us of selling something that they believe belongs to them and take legal action against us,” Still expressed. “We would likely give in since we lack the resources and legal representation compared to them.”
Kristyn Leach, a breeder at Second Generation Seeds, operates a seed hub that specializes in selling Asian heirloom seeds. To her, seeds hold much more significance than just being a product. They carry with them a history of values and farming practices unique to each region and farmer. Leach expressed that for her smaller business, utility patents are not a major concern on a daily basis. However, they do pose a threat to the preservation of culturally significant seeds in the long run.
Leach stated that numerous crops have been patented by companies that are not responsible to the regions or individuals where these crops originate from.
According to Leach, the greater number of individuals who hold patents and control over a particular seed, the more likely it is for that seed to lose its genetic diversity. At Second Generation Seeds, Leach and her team are working towards the opposite goal – increasing genetic variety by recognizing the ties between seeds, their origin and cultural significance. The company serves as a platform for small-scale farmers to sell seed packets and receive the majority of the profits, minus production costs. This offers an opportunity for smaller breeders to enter the commercial seed market, which has become challenging due to industry consolidation, explains Leach.
Due to consolidation, many public plant breeding programs have been shut down. In the past 30 years, about 33% of these programs in the country have closed. Leach occasionally works with the remaining public university breeding programs and must be careful not to use any patented materials.
In June 2023, the Farmer Seed Liaison was launched by the US Department of Agriculture and the US Patent and Trademark Office (USPTO). This online tool aims to assist farmers and seed companies in navigating the seed patent system more effectively. It offers a search engine to access existing plant patents, guidance on interpreting patent applications, and a complaint portal.
“In our ever-changing climate, it is crucial for farmers to have a variety of seed options available. However, currently farmers do not always have a wide range of choices, which was acknowledged in the Biden-Harris executive order on competition,” stated Jenny L Moffitt, under secretary for marketing and regulatory programs, in an email. The USDA’s Farmer Seed Liaison initiative aims to increase options for farmers and strengthen the resilience of our seed and food supplies. This will be achieved by promoting access to seeds for research and plant breeding, ensuring transparency in seed purchases, and including the perspectives of farmers, plant breeders, and small businesses in the seed patent review and policy-making process.
However, the founder of Adaptive Seeds sees the program as a positive move, but as a breeder who operates on a small scale, he is cautious of government-funded initiatives and the red tape that comes with them. He believes that the true issue is anything that hinders breeders from freely exchanging information, such as the current patent system.
To do their part in ensuring at least a portion of seed remains a public resource, both Adaptive Seeds and Wild Garden Seed participate in the Open Source Seed Initiative (OSSI). Through OSSI, breeders pledge their plant varieties will not be patented or licensed in any way that can restrict use. Through the pledge, OSSI is developing a pool of seed that is available to all farmers, scientists and researchers for unrestricted use. There are currently over 500 plant varieties under the OSSI pledge.
Morton, one of the original members of OSSI, has committed to more than 100 different varieties, guaranteeing that his crops can be utilized by others without limitations. He strongly opposes the idea of individuals claiming ownership over natural creations and will persist in supporting independent breeding efforts.
He stated that the issue is not about him, but about the overall principle and the potential impact on breeders’ freedom to operate in the future.