The subject of plant patents may sound like a boring one, but it affects every single one of us and the food we eat. The resurgence of interest in plant patents stems from the fact that "new and improved," genetically modified crops are eligible for patents, and these plants' patents have a significant impact on farming practices and the future of traditional, independent farmers across the country.
What are Plant Patents?
A plant patent is a patent like any other, except that it applies to new varieties of plants. Pursuant to the U.S. Plant Patent Act of 1930, revised in 1995, plant patents are valid for a period of 20 years from the date of filing. They permit the patent holder to control who grows the plant, how it is used, and even the importation of the plant.
The original idea behind plant patents was to patent new varieties of plant created by asexual propagation. However, newly developed plants that produced seeds through sexual reproduction were not perceived as patentable under the system. Therefore, a sweeter corn developed by cross breeding two types of corn seeds could not be patented under the old rules. This restriction on plant patents encouraged farmers to think collaboratively about ways to develop new and improved food crops, which would benefit all growers, the agriculture industry, and American consumers.
A 2001 federal court case changed the rules. In J.E.M. AG Supply Inc., d/b/a Farm Advantage Inc. et al. v. Pioneer Hi-Bred International Inc., the US Supreme Court ruled that patents could be issued for plants developed through genetic engineering or other breeding techniques. As a result, most plant patents today are applied for and granted to genetically engineered crops mainly by large scale corporate farms and agribusinesses. Furthermore, these plant patents are also issued for the DNA of the seed.
How Do Current Plant Patents Affect Farming Practices?
Traditionally farmers saved a portion of the seed from their crops to plant the next year or trade with other farmers. Most farmers referred to this practice as "farmer's rights." However, if there is a patent on the seed a farmer has grown, especially if the seed is genetically modified, the farmer may be prevented from saving the seed to plant the following year. To continue to grow plant patented crops, farmers are often required to sign written contracts stating that they will not save any seed at all. Instead, they must annually purchase their seed from a biotech company rather than other farmers or local seed companies. In fact, seed stores are not the resourceful option they used to be, as larger companies buy them up in an effort to control seed sources. With the changes in plant patents, the ancient rights of farmers and the traditional local seed stores will soon be things of the past.
Along with the changes in practice and seed purchasing, farmers are, by necessity, developing an improved understanding of licenses and technology user agreements issued by seed companies that sell patented seeds. Understanding these agreements is becoming critical as farmers begin to face lawsuits over patent infringement. In recent cases involving genetically modified, patented corn, farmers were considered liable for inadvertent cross-pollination between their non-patented crops and patented crops grown nearby. In another soybean patent infringement case, a North Dakota grower's preference for arbitrating a dispute with the patent-holding Monsanto Company was disregarded by the St. Louis-based agribusiness conglomerate. Instead, Monsanto opted to take the issue to federal court, thus burdening the farmer with large legal and travel expenses to resolve the dispute.
Undoubtedly, the change in plant patents has brought about increased competition between independent farmers and larger agribusinesses. Moreover, as the patent changes affect the way plant seeds are patented by major companies, and as large businesses increasingly control seed distribution and sale, some predict the wide diversity of American farmers' crops will disappear. In the future, it is likely that the fundamental power and responsibility of feeding the Americans and the world will shift from the independent farmer who works the land, to the agribusinesses and corporate farms who own the plant patents, created in the lab.
UPDATE: Following this original posting, Monsanto took an even more aggressive stance regarding its patents and (at least according to some) sued—or reserved the right to sue—farmers guilty of only “inadvertent” infringement: farmers whose crops may contain Monsanto-patented DNA as a result of the wind blowing pollen from nearby fields. (Monsanto denies bringing such lawsuits.) In an interesting turn of events, Monsanto was then sued by organic farmers worried that this pollen, from nearby farmers' fields planted with Monsanto seed, might blow onto their organic fields and mix with their organic crops. These suits sought declaratory judgments that the organic farmers did not infringe Monsanto's patents…and were thrown out as not presenting an actual controversy (as required for a declaratory judgment suit). One imagines that this ground is not through being tilled.
This article was updated in April 2012.