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Pioneer v. J.E.M AgSupply may sprout rude awakening

by David Dechant

(Aug. 20, 2001 -- CropChoice opinion) -- A few years ago, JEM Ag Supply resold 600 bags of Pioneer brand corn seed. It would seem this shouldn't be such a big deal, because if one buys and pays for some bags of seed, why shouldn't one be able to resell them? However, Pioneer doesn't see it that way, as it has sued JEM. The case has been appealed all the way to the Supreme Court, which will hear it in October. The implications are enormous, both here and abroad. At issue is whether utility patents can be extended to seeds or if the PVPA (Plant Variety Protection Act) should be the exclusive means of granting IPRs (Intellectual Property Rights) for seeds.

In addition to preventing the resale of its patented seed, Pioneer also has used utility patents to prohibit other companies from using its varieties in their breeding programs. Other seed companies have done likewise. So far, only Monsanto has taken an extra step and prosecuted farmers for saving seed for their own use. Utility patents may also be used to control who may market and process crops grown from patented seed. For example, Podners LLC, a Colorado company, uses its patent on yellow beans to prevent Mexican farmers from selling their beans in the US without paying it a royalty. Ironically, Mexicans have grown yellow beans centuries before Podners LLC came along and Mexico is where it got its yellow beans to breed in the first place. Even stranger yet is the fact that Mexicans' export beans are grown from their indigenous seed and not Podner's patented variety.

Attempts to monopolize seeds are nothing new. Apparently, Thomas Jefferson rejected the notion that someone could do so. While envoy to France, he smuggled rice seeds out of Italy for planting in South Carolina and Georgia. Also, he paid some Turkish spies to help him smuggle prized hemp seeds out of China, where they were illegal to export and doing so was punishable by death. Interestingly, Jefferson played a leading part in writing the early Patent Acts and administered the Patent Office for a time. If he had intended for seeds and plants to be patented, he would have added them to the definition of what can be patented. By today's rules, Jefferson probably could have patented the seeds he smuggled. But, most likely, he never would have dreamed that someone would try to do so. Neither would have another Founding Father, George Washington, who emphasized the importance of saving seed in his letters to his farm manager, William Pearce.

Of course, plant breeding has changed greatly since Jefferson's days. And that's precisely why Congress recognized later on that a special form of protection was required for new varieties of plants and seeds. It passed the Plant Patent Act in 1930, for asexually reproduced plants, and the PVPA in 1970, for sexually reproduced plants. Congress has amended the PVPA several times since, always making sure farmers could save seed for their own use, as well as allowing the use of PVPA protected varieties in research and for breeding new varieties.

Patents on seed are a relatively new phenomenon. In 1985 the Patent and Trademark Office (PTO) decided on its own that plant varieties and their seeds could be patented. Of course, by doing so, it completely ignored Congress, which never intended for the PTO's utility patents to be extended for seeds.

Many farmers think that only GMO seed is being patented. They are unaware that the PTO grants patents on conventional seed, too. None of the corn seed JEM resold was GMO, yet it was patented. So are many of Pioneer's conventional, non-GMO soybean varieties, as well as Asgrow's, Stine's, etc. A quick search, for example, on www.delphion.com for "Pioneer and corn" turns up numerous patents for varieties, inbreds, and hybrids thereof, many of which are non-GMO.

Monsanto's lawsuits against farmers for saving seed are now on hold pending the outcome of Pioneer v. JEM Ag Supply. If Pioneer prevails, then Monsanto will resume and intensify its prosecution of farmers. With the Supreme Court's blessing, other seed companies will follow in Monsanto's footsteps and also prohibit farmers from saving seed. Moreover, they will find ways to patent any seed worth planting, whether it be GMO or conventional. Farmers who think otherwise will be in for a rude awakening.

As for farmers abroad, they may eventually lose their historic right to save seed, too. The US government and the multinational seed companies will put renewed pressure upon other countries to adopt stricter IPR's for seeds. They will use the WTO and trade related threats as tools. Patents on seeds will even help seed companies justify the terminator gene as a means of patent rights enforcement.

A ruling favoring patents will hurt public plant breeding, too. Already, public plant breeders complain that there is less and less sharing of information and germplasm, which is hurting their breeding programs and the training of graduate students. It also means that public research institutions can prohibit farmers from saving seed that they develop in part or in whole, if they so wish, as the Bayh-Dole Act gives them permission to patent their research. Consequently, public food and farm research will be directed more and more towards satisfying the wants of business, as they will buy rights to the patents or otherwise coop public research, and less and less towards what farmers and consumers want.

What JEM did doesn't mean jellybeans to Pioneer. However, the legal precedents this case will set could mean everything: a worldwide forced expansion of the seed market, increased monopolization of germplasm, reduced competition, including that from public breeding, and control of the crops grown from patented seed. That's precisely why DuPont/Pioneer, Monsanto/Asgrow, and the other multinationals very much want such cases to go forth, especially being that they know they would have a hard time getting their farmer and consumer unfriendly schemes pushed through Congress.

The Supreme Court would do well to recognize Pioneer v. JEM AgSupply for what it is: a ruse to circumvent the will of Congress. It should rule against utility patents on seeds. Then, if the biotech/seed companies want greater IPR protection for their seeds, they can go to Congress. If we farmers are to lose our historic right to save seed for our own use, then Congress should be the one to take away what it took great strides to make sure we could keep in the first place. Likewise, if public plant breeding is to be hurt because patents override the PVPA's research exemption, and if the seed market becomes more concentrated because small seed companies can no longer find new breeding material, then Congress should be the one to do so.

Finally, consumers should really think what the consequences would be if the production, processing, and marketing of food and fiber were to be monopolized all the way from the seed to the grocery store. Though this may seem far-fetched at the moment, the broad rights granted by utility patents make it entirely possible. Again, Congress should be the one to define when and to what extent such rights are justified. Otherwise, consumers may be in for a rude awakening someday, too.

David Dechant is a Colorado wheat, alfalfa and corn farmer.