The Illegitamacy and moral issues of patenting part 2

This is a follow up to a blog from a couple days ago wherein a friend and I were discussing plant patents and particularly the ability to create a "open source" patent that would allow gardeners, traditional plant breeders, and farmers to share seeds but place limitations on coporations "stealing" those sees. My friend had a few new insights, particularly in regards to Siegers trying to patent "warty" pumpkins and the traits associated with them, this is interesting and goes deep, be sure to read it all the way through!

Well, Alan,

I must say that I was pretty surprised to open your main blog yesterday and discover that I had become an anonymous "star". No problem, but I am glad you did remove my "identity". As I mentioned, I've colleagues on both sides of this issue, and I know that the cross communications can become more than just "vituperative" at times.


Well, one of the best ways to learn is to shoot your mouth of and then get corrected.

I mentioned in my previous email that : "Plant Patents are only available for plants that are (and nearly always require to be) asexually (i.e. cloned, divided, "boutured" [sorry, can't think of the English word], etc.] to retain their uniform and stable distinct characteristics."

Well, this is, in fact true; and supported by the USPTO's own "Guidance" on Plant Patents (see http://www.uspto.gov/web/offices/pac/plant/#1) which makes quite a point of the "asexual reproduction" facet.



However, I have been referred to an interesting article by a Hawaiian “Patent Agent, Dr Robert Hunter, who points out that securing a “Plant Patent” is not necessarily the “best” way to secure rights to a plant discovery (or even a plant “creation”). In this article, which can be seen at : http://www.webpatent.com/news/news1_02.htm , he points out that Plant Patents, requiring asexual reproduction, have been available in the US since 1930. (Makes one wonder where the “loyal opposition” has been all these years), but, FAR MORE importantly, that “utility patents” for plants have been clearly legal since the US Supreme Court ruling in J. E. M. AG SUPPLY, INC. V. PIONEER HI-BREDINTERNATIONAL, INC. (99-1996), Opinion of 10 December 2001 (see : http://supct.law.cornell.edu/supct/html/99-1996.ZO.html) .



Now the scary thing about utility patents is that they are NOT limited to asexual reproduction; they are NOT limited to a claim of a particular plant variety; but they allow multiple claims, and , MOST FRIGHTENINGLY of all, and a fact that appears, so far as I can see in all of the opposition filings/blogs/criticisms, to not be addressed by critics of these patents, is that they permit patenting of “a method of achieving” the plants with the traits claimed in the patent.



I note that in an earlier blog, you make reference to Sieger’s Seed Company’s Patent Application US20080301830A1 wherein Sieger’s Seeds makes application to claims on a “warted pumpkin”. I would point out that this is NOT a “Plant Patent Application”, but is an application for a “utility patent”, claiming not just the variety, and its traits, but “Claim 25. : A method for producing a new variety of plant, the method comprising the steps of: pollinating at least one plant of a variety capable of producing warted pumpkins with another variety of Cucurbitacae plant to produce fruit with seeds; and germinating the seeds to produce the new variety of plant.”



A “Plant Patent” on Sieger’s Seeds “Super Freak” pumpkin would, as I mentioned in my previous message to you, be, essentially, a “non-issue”. It would restrict nothing you, I, or traditional producers of, say “Galeux d'Eysines” squash do from continuing to do what we do. This “utility patent’ application if granted, would however, probably legally prohibit you or me from making crosses by “pollinating [Galeux d'Eysines] with another variety of Cucurbitacae plant to produce fruit with seeds; and germinating the seeds to produce the new variety of plant.”



Another interesting point about this patent application is just how poorly (sloppily) it is written. It cites US Patent No. 6,300,546, a Patent issued for “Baby Boo” miniature white pumpkins ( patent, by the way, that appears to have stirred NO controversy in the gardening community). However, a point that really distinguishes this poorly constructed application from that of the “Baby Boo” patent or other previous utility patents for plants, is that each of the previous patents claimed only a “method” based on sexual propagation of the “discovered sport, mutant or hybrid”, whereas the present (warted pumpkin” application claims the “method” on the basis of a general, “traditional” breeding technique.



If I were going to be frightened by anything, I would be frightened by the “Method” claims in these “new” “Utility Patents” for plants, not by a 70-year-old “Plant Patent” procedure.



It appears to me that, in this poorly written application, Sieger’s is just “trying it on”, either on their own behalf or as representative for others. If THIS can get by the USPTO Examiners, then the gates really ARE open. In a final comment on Sieger’s Seeds’ application, I would like to refer to their own “About Us” statement on their Website, where they say : “Today, in the 21st century, Sieger's Seed Company continues with a long tradition of providing honest, dependable service that is based on Christian family values.” As does at least one Christian blogspot I ran across, I would have to remark that their concept of “Christian family values” is in significant conflict with my concept of “decent community values”.



In a final comment on “warted pumpkins”, however, I return to a remark I made in my last email to you : even this “patent” would have no practical impact on gardeners or farmers or on non-gardening/farming families that use their good sense and free will. How many market gardeners (which is to whom Sieger’s Seeds is peddling this “product”) have never heard of or seen Galeux d'Eysines or a similar squash/gourd? Probably almost none. I mean, market gardeners are not stupid or naïve people. If they use their good sense and free will, there simply will be no market for this phony “patented” plant.



I’d like to address the “urban mythology” of “Monsanto’s lawsuits against individuals” as well as the claim that Bayer somehow is further liable for some “bad practice” after agreeing to compensate indigenous farmers for their traditional knowledge (Bayer’s major offense seems to have been not “bio-piracy” but “contaminating” the crops of US & European rice producers who sell their products at well above the world market price), but I don’t want to open myself to a lot of personal invective. so I’ll leave it here at the moment.



Meanwhile, however, just in case you find it useful, I include (in attachment) the texts of the US Patent Law and the CFR regulating Plant Patents, as well as the text of the WTO’s own Agreement on Trade-Related Aspects of Intellectual Property Rights, which makes it clear that patents for plants, other than micro-organisms, that are sexually produced, are a national option. In other words, Americans have chosen/allowed to issue such patents. They can change this.



I’m still talking with my colleagues, bouncing what I “know” off their better knowledge, and gaining info. Will keep you posted, if you wish.

Here is the attachment sent to me published to google docs

My friend also adds:

By the way, you may want to check this out/share it with others.
There is an alternative way, perhaps, but as CAMBRIA points out :
""Biological Open Source" is not a new way to patent, but a new way to share the capability to use patented technology".