Unearthed: Are patents the problem?

If you’re at the right party — a party populated by agriculture wonks — the issue of patenting living organisms might get more of a rise than either religion or politics, demonstrating both that patenting is a hot issue and that agriculture wonks aren’t much of a hit at parties (trust me on this one).

A 1980 Supreme Court decision that allowed patents to be granted to living things kicked off the controversy. The basic genetic materials of the things we eat have been around, and have been tinkered with, for millennia, and the idea that a new version of one of them could earn protection that would prevent farmers from saving seed and, perhaps, give the patent holder inordinate control over our food supply has raised a number of concerns. I’m going to tackle the ones that seem to worry people most.

The first is that patents allow patent holders to restrict research, and that’s true, although many of the restrictions arise from the contract that farmers sign in order to buy the seed rather than from the patent itself. Monsanto, for example, requires buyers to sign a “Technology/Stewardship Agreement” that explicitly prohibits using the seed for research or breeding. Other companies have similar agreements.

Christopher Holman, a law professor at the University of Missouri at Kansas City, explains that there is a de facto — not a legal — protection for basic research on patented plants. “As a practical matter, basic researchers are never sued for patent infringement,” he says. What’s basic? “Pure science that is meant to increase our scientific knowledge base,” says Holman. Given the imprecision of the definition, and the fact that the exception isn’t a legal one anyway, this strikes me as an eye-of-the-beholder situation.

Each patent and each research project is different, and I’ve come across stories of scientists who have felt stifled and of scientists who got full cooperation. Jim Myers, a professor of vegetable breeding and genetics at Oregon State University, says that patents, or patent disputes, sometimes lock up the building blocks of plants that used to be freely available to scientists. “Before patents, there was a lot of innovation that came out of trading germplasm [the genetic material of a plant]. Now, everyone has their own set of material that they do not share. . . . My sense is that we’re missing something here because of the lack of access to each other’s programs.”

Monsanto has agreements with more than 100 universities that allow academic scientists to do independent research with no oversight (although those agreements don’t cover plant breeding). That’s one reason why, despite what you might have heard, there have been hundreds of independent studies on genetically engineered organisms. Biology Fortified, an independent nonprofit organization, is cataloging GMO research and is 400 studies into a database that eventually will hold more than 1,000. The database, GENERA, shows that, of those 400, more than half report receiving no industry funding.

There’s no line in the sand that says researchers can do this but not that. Sometimes patent holders grant licenses to academic researchers, as when Cornell scientists used a process patented by Monsanto to develop a papaya resistant to the ringspot virus, and Monsanto granted the license with no charge. But those same companies protect their patents from being used in commercial applications, and sometimes it’s simply a judgment call. Eye of the beholder.

A second concern is that patenting has driven the consolidation of the seed industry, and that is also true. Phil Howard, an associate professor at Michigan State University, studies just that. “The top 10 seed companies made nearly 200 acquisitions between 1996 and 2013,” he says, “and the top three — Monsanto, DuPont and Syngenta — now control just over half the industry.”

Everyone I spoke to agreed that patents were a factor, although not the only factor, underlying the shift. The large companies had the GM products and, perhaps more important, the patented techniques to insert genes into plants. (There are patents covering non-GM crops, but it’s the GM technology that’s mostly at issue.) The smaller companies had lots of different kinds of seed adapted to different conditions and purposes. The easiest way for the large companies to get their GM varieties out into the market (and thus recoup the major investment they’d made in developing them) was to buy seed companies and attach their GM traits to those seeds.

The real question, though, is whether that’s a bad thing. Specifically, does it restrict farmers’ choices and force them to buy (and pay the higher price for) GM crops when they want non-GM, or seeds with more than one GM trait when they want only one?

There’s no definitive research that can tell us the percentage of farmers who can’t get a seed they want. It does happen. It happened to Todd Leake, who grows soybeans in North Dakota. “After GM soy became available, we weren’t able to access conventional soybean seed in the Northern Plains, except for some old varieties that didn’t have good disease resistance,” he says. He adds that a program at North Dakota State University, which had bred soybeans adapted to local conditions, couldn’t compete with the big companies and stopped developing new varieties.

Among the dozen or so farmers and the corn and soy growers’ associations I’ve talked to, Leake is the exception. Although the widespread preference for GM seed ensures that there are often more GM choices than non-GM, farmers report a wide variety of both kinds, and an experience similar to that of Brian Scott, a fourth-generation farmer with 2,100 Indiana acres of corn, soy, popcorn and wheat. “I wouldn’t have trouble getting non-GMO seed,” he says, and seeds with just one GM trait, or several, are also available. One of the seed companies in his area specifically markets non-GM corn.

The story of Big Ag forcing GMOs down the throats of unsuspecting farmers, ensuring that those farmers not only pay through the nose but also can’t save seed and thus have to pay through the nose again next year, is largely fiction. And it’s a story that lots of farmers find really irritating, because it makes them out to be dupes or patsies. Roundup-Ready corn and soy, which can be sprayed with the herbicide glyphosate (used to kill weeds) and show no ill effects, are widely planted because farmers want them. And Monsanto has made piles of money because it developed plants that the vast majority of farmers wanted to buy. Had patent protection not existed, those companies might have focused almost exclusively on the one megacrop that farmers can’t save seed for regardless: Corn, a hybrid, doesn’t breed true. Patents ensure that crops like soy, for which farmers can save seed, also get attention.

That’s not a compelling argument if you don’t like Roundup-Ready crops, and there are good reasons not to like them: They’ve led to an increase in herbicide use and the emergence of glyphosate-resistant weeds. But the built-in pesticide in Bt corn and soy has allowed farmers to cut back substantially on large-scale pesticide applications. And how about the DuPont yeast that makes long-chain omega-3 fats, thus allowing us to generate those fats, vital to human health, without harvesting a single fish? Improving agriculture can be an expensive proposition. Patenting means there’s a way for people and companies that invest time and money to recoup that investment.

Every year, when my husband and I buy our oyster seed (which is what the pinhead-size oysters from the hatchery are called), we pay a patent fee to get triploid oysters, which don’t reproduce. Diploid, which do, are readily available, but the advantages to us of triploid — they don’t spawn, they grow faster — vastly outweigh the cost of the patent fee. Farmers who buy patented seed make the same decisions. If the increased seed cost and, in some cases, the inability to save seed outweigh the advantages of patented seed, they buy. If not, they don’t. They’re not dupes or patsies.

And perhaps the single most important thing about patents is that they’re finite. Some of Monsanto’s patents have already expired and entered the public domain, and have enabled smaller companies to jump into the mix. Okanagan Specialty Fruits, for example, has taken advantage of the now-public technology to develop a non-browning apple. And, although DuPont has the sole right to its yeast until about 2023, from 2023 until Armageddon, anyone can make one.

Patents on life forms certainly changed the agricultural landscape. As with most complex issues, there are advantages and disadvantages to the patenting of the things we eat. On the downside, I think concerns about control of our seed supply by just a few companies are legitimate, and I hope the Department of Justice is keeping a sharp eye out. And the profit motive certainly helps ensure that, at least initially, the widely grown commodity crops will get the most attention, perhaps at the expense of some of the more healthful things we eat.

But patenting is standard operating procedure in a capitalist world, and I don’t think food is substantially different from other industries. There will be bad decisions, there will be hamstrung scientists, but there will also be innovation. We’ve got a lot of people to feed, and we need all the innovation we can get.

Haspel farms oysters on Cape Cod and writes about food and science. On Twitter: @TamarHaspel.