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".

The illegitamacy and moral issues of plant patenting

Recently I was trading some seeds with a friend in Europe who also has an interest in the PVP'ing and Patenting of food crops, traits, and genes. He was interested in the idea that had been thrown around on the Homegrown Goodness forum concerning independent plant breeders and preservationist placing the equivalent of a "creative commons" license on traditional or newly bred varieties that would allow them to remain in the public domain but out of the hands of the Big-Ag.


Herein I reprint his e-mail(s):

1. I might mention that I have for several years edited The Journal of World Intellectual Property and, as a consequence, have some contacts among the world of scholars who address themselves to, among other things, Plant Breeders' Rights, UPOV Protection of Plant Varieties, and Plant Patents. I won't argue about patents with you except to say that, other than the BIG issue of COST, you should perhaps not disregard them for your purposes; they (patents) have been around for more years than the USA and aren't going away. On the other hand, I do think that there are some very practical ways that you and others can perhaps make use of Plant Breeders' Rights to protect what you produce in such a way that it can be used freely but not commercially exploited without your agreement. I'm not sure, but I think so. If you want, I can ask some people or maybe link you up with them. Most of the folks I know are either African or Asian or otherwise sympathetic to "Farmers' Rights" and opposed to patent procedures that "lock in" corporate rights to living organisms, so they would probably know how you can use these laws to advantage.


My reply:
I would be interested in the PVP laws, if only to create a creative commons type license that would keep the variety away from corporations but put no standards or rules on home gardeners and independent and traditional plant breeders. If you can get me some info. on this I would greatly appreciate it my friend!

His Reply:

Secondly, I have done a little dredging through old journals, talking to friends and looking at the Internet and can say a little at this time.
Plant Variety Protection in the US (and in general) requires similar standards as any "patent" : i.e. the variety must be:
- new
- distinct
- uniform; and
- stable
These are the same requirements, by the way, as for a patent.

The distinguishing difference between PVP (which I see on the boards at least one otherwise distinguished commentator calls "Plant Variety Patents") and PP is that "Plant Variety Protection" is available for plants that are, can and will be (may need to be) reproduced by seeds or tubers to retain their uniform and stable distinct characteristics; whereas as 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.

A PP will cost in excess of US$10-15,000, given gov't fees and legal costs.
A PVP will cost US$5,150, all in gov't fees.

The bottom line, in either case, is that, beyond the rather well-defined limits of either PVP or PP, you simply cannot "protect what you produce in such a way that it can be used freely but not commercially exploited without your agreement", and that I was wrong to suggest that any such option existed.

Consider the "Absinthe" Tomato (assuming it were stable).
- It is not patentable (it is not asexually produced)
- It would, almost certainly be eligible for PVP
- With PVP, you can prevent "X seed company" from selling "Absinthe Tomato" as a
variety if those seeds are derived from yours
- Without "Trademark", in addition to PVP, you could not, however, prevent "X seed company" (by the way, I don't have and never will such a company, this is just an
illustration) from selling "French Absinthe Tomato" based on any other green
tomato seed except yours
- You might possibly (but my legal friends suggest it would be difficult to do so) be
able to prevent Monsanto from introducing whatever the anti-Roundup gene is and
a "Terminator" gene into germplasm from your Absinthe Tomato, and then patenting
this asexually produced seed as "Killer Absinthe Tomato". (Even if you owned a 'trademark'
on "Absinthe Tomato", they suggest that a fight against a corporation such as this would
maybe award you your legal costs and compensation for your time at professional rates.)
- There is not likely to be much difference, I am told, if you hold a patent

Another thought I have (and that has been reinforced by talking to my African and 1 Indian friend) is that what you and most of the folks at "Homegrown Goodness" are looking for and what the corporations are looking for are, like, RADICALLY different. Some of your interests may cross over into the interests of 3rd World Farmers, but even there, the overlap is really small.
- Big agro corps (even the small ones I love, like TerraNova) want PRODUCTS
They want them to supply either:
- customers who want something nifty in their garden that cannot be easily produced; or
- customers who want reliable, MARKETABLE products (note the repetition) for onward sale
- governments or IOs or NGOs who are trying to feed populations in desperation

- 3rd World farmers are looking for seed that will allow them to :
- provide a product to a commercial market
- provide a product to a local market
- feed their families

- "Homegrown Goodness" folks want :
- good nutrition
- good flavour
- freedom from GMOs
- seed-saving capability
- longer-season production
- probably a lot more, because it is more personal

What is interesting here is that the interests of the Agro-complexes and of Juan or N'gebe in southern Colombia or East Nigeria are much more in consonant than are those of the Agro-complexes and the "Homegrown Goodness" folks.
And to refer back to the discussion above, I think that we may "Protest too much".
Most of what the "HG" community wants to develop is of no or limited interest to the ACs and, I am sorry to say, of about the same interest to the 3rd World.
Should any one of us make a breakthrough that would benefit the world, wouldn't we all know it?
And wouldn't we all help pay the fees to guarantee that it was free to all?
Of course, we'd have to accept that 'free for all' would mean that every seed company in the world could print up packages and sell :
"Alan Bishop's Absinthe Tomato".
And that would mean, well, what? Would it really mean what we would want it to mean?

I have MANY more thoughts on this subject, but it would make a LONG letter.
I have to stress that I have NO political/ideological/moral/ethical position whatsoever on the issue. In fact, after several years of working with people on both/all "sides" and a lifelong heritage as a gardener and seed & plant trader, I actually rather think that it is a non-issue in anything but a political/ideological sense; that it really has no practical impact on gardeners or farmers or on non-gardening/farming families that use their good sense and free will; and, therefore, has only minimal moral/ethical content.

Well, since i obviously cannot share your worldview, I hope I can still get seeds!


Anyhow, I thought this was an interesting exchange. Mostly in the way that my friend views such issues as "non-issues", which by all means is his right and I respect that. However, I myself have no interest at all in PVP'ing a variety for profit, only to protect it for other traditional farmers and plant breeders as I can make plenty of money to cover my work from simply growing and selling the produce or starting a traditional seed company and selling the seeds. I do think that the PVP'ing of varieties and traits that are present in traditional crops and varieties and the ongoing PVP'ing of known traditional OP lines is a very big issue for traditional farmers and independent plant breeders and that the battle is very worth fighting, our agricultural heritage is being stolen right out from underneath of us and sold back to us minus our traditional rights to the use of this material and the saving of the seeds.

Today I was browsing another forum on the net and came across this exchange from another user:

It can take 6-8 years from the initial cross to introduction into commercial trials,full adoption into the commercial market can take more than a decade. It also takes a core team comprised of scientists, plant pathologists, entomologists, molecular biologists, food scientists breeding technicians and growers. [Angela Smith-Vegetable growers News-Mar.'09] Every one gets a pretty good salary. There are many other expenses involved also. Still wonder why some want to patent thei discovery and recover expenses, even profit from it all.
Private companies bear these expenses, they should reap the benefits of their work. public monies are drying up due to several causes, one of which is the demand to spend less tax dollars at the colleges whu do these trials. pretty hard to bad mouth private enterprise at the same time we demand less govt. monies be spent on crop research.


Wrong on all accounts! While companies do sink large amounts of money into agricultural varieties there has been more than ample evidence that many new "novel" varieties are nothing more than re-introductions of old and traditional agricultural crops, crops who's traits were raleighed together by traditional farmers and molded into useful agrarian material for generations, sometimes thousands of years, before some jackass in a lab suit decided that it was "novel" and that he could turn a buck from it at the expense of traditional and independent farmers and indigenous people the world over. Even when there is some amount of novel breeding program (in the context of traditional breeding, not GMO "breeding"), most of the time when a patent or PVP is placed on that trait it is a trait that is already common to that particular crop species and effectively attempts to "lock up" that trait from the general gardening public and their ability to save seed from this crop or use it for independent breeding.

Plant breeding has been an ongoing public domain endeavour for at least the last 10,000 years, mostly on a shoestring budget, and didn't become an act of major economic importance in the seed trade until just a couple hundred years ago. The early American seed companies fared well because they existed during a time where they focused on the regions that they served and selected for the traits needed for successful growing in that region, at the same time they were developing new varieties as much for the success of the whole of the region as they were for the monetary compensation from such development, such sentiment remained until the implementation of the sale of unstable F1 varieties (which made purchasing seeds annually much more common) and the expansion into country wide hubs of seed that "do O.K. anywhere as opposed to doing great in a particular "somewhere" ". At some point in time lobbyist learned to manipulate the system to allow the patenting of life, an atrocity in itself, no one owns life or genes, ever, and I dare you to tell me otherwise. Plants and animals are only the beginning, that was testing the water, now human genes are becoming subject to patents, for anyone to think of this as a "non-issue" really gets under my skin.

This is our world. Every living thing on this planet has it's place and it is not yours for the taking and pillage, particularly in regards to sovereign human rights and what I am now calling "the right to free and open traditional agrarian society" or variously "my right to tell the manipulators of the human race to go fuck themselves" (this includes you Monsanto).

Of course once you patent a trait in an open pollinated crop, it's only a matter of time before that trait ends up in your crops, even traits you don't want like genetically modified traits, at which point you no longer own your crop, the owner of the patent then owns you crop, it's called bio-piracy, but unlike their allegations, it is bio-piracy on their behalf, a cheap and easy way to amass money and materials is by the systemic rape and pillage of traditional farmers that get in the way. These people have no morals.

Of course the next step up is GMO, but I think I have ranted enough about the dangers of this particular manipulation. Though I do think and encourage Americans to take up the practice and example of the French and their destruction of GMO crops.


Then came a very interesting Rambling Posting about some Sweet Fingerling Peppers and their concerting origins via the Long Island Seed Project. All in all a good day to think about how screwed up it is to think you "own" life, or genes, or agricultural history.

BTW, anybody else with a blog notice the Lockheed Martin Corporation trolling their blog on a daily basis for time periods only long enough to allow a browser to troll and record data?

Their motto after all is: "We never forget who we are working for"

I'm sure you don't ass kissers!