A Short History of Intellectual Property Rights on Seed and What Farmers Should Know

“The crops that we grow are the basis of our civilization. If anything belongs in the public domain, it is the crops we grow for food.” – Todd Leake, North Dakota grain grower, public testimony at a Department of Justice workshop in Ankeny, Iowa, March 12, 2010

“I have great faith in a seed. Convince me that you have a seed there, and I am prepared to expect wonders.” – Henry David Thoreau, The Dispersion of Seeds (1860-1861)

Once managed as part of our public commons, seed is now one of the most privatized agricultural inputs today. Laws, policies, and practices governing intellectual property (IP) rights on seed, plants, and genetics have fostered dramatic marketplace and cultural changes in a few short decades. The commercial seed marketplace has undergone tremendous structural shifts, with ever more market power concentrating into the hands of fewer firms. IP rights have facilitated this extensive and rapid concentration. Meanwhile, beyond market domination at the retail level, farmers, plant breeders, and independent seed companies are dealing with the consequences of concentration at the more fundamental level of ownership, where IP owners determine whether seed is saved, shared, and how it is used.

This article provides a short history on what led to increased privatization in seed; the impacts of this privatization on breeders, farmers, and innovation; and recommendations for addressing root causes of the problem, including IP tools that are inappropriate for managing a living, natural resource like seed. This article provides new resources for examining how different IP tools compare, and steps farmers can take to better understand what, if any, IP rights are associated with the seed they’re buying or already using.

As an organic community, we have an opportunity – a responsibility – to create a different path for organic seed that is distinct from the biotechnology and chemical industry model. The agrochemical seed industry model is based on secrecy, privatization, and intimidation. Organic seed systems, on the other hand, can further the principles of diversity, fairness, and shared benefit. Understanding the role IP rights play in seed systems will only strengthen the organic community’s work to create a different path for organic seed.

Seed as a collective commons

Figure-1Humans have been co-evolving with plants for thousands of years, saving and replanting seed for survival and cultural purposes. First Nations developed highly evolved systems of seed saving before the dominant agricultural system took root, weaving seed into cultural and social fabrics as much as the natural landscape that fed them. Colonialism boosted the human population in North America, and agriculture and the commercialization of goods expanded to support more people.

A thread throughout this history is the continuation of human-plant interactions, and how they shaped burgeoning societies and the land. If our relationship to plants, to seed, figured prominently in our current place on this planet, it is prudent to evaluate how our relationship to seed will likely affect our current trajectory as a species and organized society, especially as we grapple with the interconnected issues of climate and pollution. The long history of seed saving and plant domestication continues today, though in a very different context.

To trace shifts in our relationship to seed, we’ll focus on the influence of our political society. We’re going to go back to 1862, when two laws were passed that significantly elevated and transformed agriculture in the post-settler U.S. The first launched the U.S. Department of Agriculture, which President Abraham Lincoln, in his last address to Congress, called “the people’s department.” The second law, the Morrill Act, established our land grant university system, intended “to teach such branches of learning as are related to agriculture.”

A core function of the U.S. Department of Agriculture (USDA) when it was formed was the collection and distribution of seed. Concerted efforts to introduce new plants to the U.S. began centuries before. In fact, for much of the nineteenth century, before the USDA was established, the Patent Office fervently carried out these activities, mailing millions of seed packages to farmers across the nation. (There is great irony in this fact, as you’ll read.)

The new infrastructure established through these laws aimed to expand U.S. agriculture for the sake of prosperity and food security – to further research, education, and innovation, and make advancements accessible to all.

In important ways these laws were about sowing seeds, literally and figuratively. But today, their intent has been undermined by policies and practices that collectively privatize seed in frightening ways. The expansion of intellectual property (IP) rights associated with seed has transformed our relationship with these living organisms in ways that were previously unimaginable.

By the end of the nineteenth century, a third of USDA’s budget was allocated for seed collection and distribution. The department encouraged farmers to try new crops and continued the practice of distributing seed free of charge. And, thanks to the Morrill Act, states had a place in the plant sciences. Land grants largely focused on collecting seed and conducting research in areas that were not profitable to burgeoning private ventures.

Try to picture it: USDA freely distributing seed to farmers (at the time, half the population) not so much as a commodity but as an essential natural resource best managed in the hands of the people. The department understood that the nation’s growing (and now rich) crop diversity was a product of farmers serving as plant breeders in their own right. Their labor and land – and the knowledge base they built through experimenting, screening, and selecting – effectively adapted plants, some exotic, to regional agricultural economies.

Meanwhile, land grant universities’ regional breeding programs gained momentum, providing new plant varieties to farmers. These public programs supported U.S. agriculture by increasing yields and developing a strong base of scientific knowledge in research facilities. Private companies emerged, but at first their products were inferior in quality and quantity.

The private seed trade expanded, and organized to confront their most formidable competitor at the time: the government. Congress shut down the USDA’s distribution of free seed in 1924 following heavy lobbying by the seed trade. Over the decades that followed, the number of independent seed companies grew.

The political climate was such that lawmakers were facing heightened pressure throughout the twentieth century to create policies that protected investments in research and development. IP rights had been discussed for decades, and the first law to provide breeders some protection passed in 1930. Importantly, this law, the Plant Patent Act, excluded sexually reproducing plants as patentable subject matter, and only applied to asexual reproduction, such as grafting and cuttings.

In fact, Congress long argued that sexually reproducing plants shouldn’t be awarded utility patents – “patents for invention” – for fear of curtailing innovation, threatening the free exchange of seed, and increasing market concentration.

But the lobbying efforts of plant developers, including members of the seed trade, were eventually successful in convincing Congress that more protection was warranted. This came in the form of a “patent-like” protection under the Plant Variety Protection Act (PVPA) of 1970. The law represented a compromise: Breeders had the exclusive right to propagate and market the variety for 20 years, but the law provided important exemptions: 1) other plant breeders can use protected varieties for breeding and research, and 2) farmers can save seed from protected varieties to replant on their own farm.

Although many breeders still use PVP protections today, Congress’ concerns regarding IP rights on plants have been realized – but not because of this law. At the turn of the twenty-first century, the Supreme Court upheld a case where the Patent and Trademark Office (PTO) awarded the first utility patent on a lifeform. (The PTO had originally refused to award this patent, but the U.S. Board of Patent Appeals and Interferences disagreed and granted it.)

Once the provider of free seed, the modern day PTO is responsible for setting a precedent that forever changed our access to, and relationship with, seed.

Privatization leads to consolidation

Figure-4---1-&-2Owners of utility patents have far-reaching control over access to and use of their protected products. While the PVPA has exemptions for researchers and farmers, utility patents can be legally enforced to forbid access to protected seed for purposes of innovation as well as on-farm seed saving. Patents therefore remove valuable genetic material from the pool of seed that public breeders rely on for improving crops. What access breeders do have often hinges on restrictive licensing agreements (i.e., restrictions on how the seed can be used, what can be researched, and whether findings can be published).

Furthermore, patent owners can deny licensing agreements for strategic purposes to prevent competition. This in turn denies breeders from improving and expanding the plant genetics on which agriculture depends. Especially problematic is the increased trend in broad patents covering traits that also occur in nature and can be selected for through classical breeding methods, such as “red lettuce,” “brilliant white cauliflower,” and “heat tolerant broccoli.”

Utility patents are also commonly enforced to remove a farmer’s right to save and replant seed, the very practice that conserves and generates diversity of domesticated crops. By being forced to repurchase seed each year, farmers not only shoulder higher annual expenses, they lose the ability to adapt seed to regional climates, soils, and disease pressures.

The increase in IP rights has been coupled with a concurrent loss in growers’ knowledge and skills to keep seed diversity alive and co-evolving with human communities and climates.

In the seed sector, utility patents quickly led to increased concentration of financial and genetic resources. Transnational chemical and biotechnology firms entered the seed industry to capitalize off the new IP rights playing field. Their expansion of agricultural biotechnology, and the profits from their patented products, led to dozens of unchecked acquisitions and mergers.

Today, four seed companies now control more than 60% of the global market. These companies include Bayer (which recently acquired Monsanto), DowDupont (a merger that resulted in the agricultural firm, Corteva), ChemChina (which recently acquired Syngenta), and BASF. Economists say that an industry has lost its competitive character when the concentration ratio of the top four firms is 40% or higher. The seed industry continues to exceed this benchmark not only across the entire global supply, but across crop types as well. For example, even before the Big 4 merged, three firms (Monsanto, Syngenta, and Vilmorin) controlled 60% of the global vegetable seed market.

History shows that seed industry consolidation leads to less choice and higher prices for farmers. These companies also aggressively protect their IP rights, which means less innovation and more restrictions on how seed is used and exchanged, including for seed saving and research purposes. These restrictions affect conventional and organic agriculture alike by making a large pool of plant genetics inaccessible to public researchers, farmers, and independent breeders, which in turn limits the diversity of seed in our landscapes and marketplace, and weakens our food security.

The extent of market concentration is most obvious when looking at biotechnology traits, namely Roundup Ready and Bt crops. Bayer’s (formerly Monsanto’s) genetically engineered (GE) traits are planted to nearly all U.S. corn, cotton, soybean, and sugar beet acreage. A number of patents are associated with these GE varieties (see Figure 1).

Today, many smaller companies cannot compete with large firms that have patented much of our crop genetics and sell only proprietary products. Licensing genetics from these firms is costly, creating a barrier to new private research firms. More than 200 independent seed companies have been lost over the last 20 years alone, including companies that were interested in organic farmers interested in organic and conventional (non-GE) seed. The result has been less competition and choice in the marketplace, and a lack of infrastructure to provide for the diverse and regional needs of farmers.

For example, Trisler Seeds, Inc., based in Fairmont, Illinois, is a well-established seed company with a 70-year history in seed corn. In 2006, Monsanto’s holding company, American Seed Incorporated (ASI) purchased Trisler, after which the diversity in seed options decreased dramatically. In 2004, Trisler offered 33 conventional (non-GE) corn varieties, about 40% of its seed corn platform. In the years following the acquisition, Trisler’s conventional (non-GE) corn options were cut by 91% even in light of a major resurgence in demand for non-GE corn and soybean varieties. This demand was due to the increased cost of GE seed and herbicides, the emergence of glyphosate-resistant weeds, and premium prices paid for non-GE grain. Monsanto purchased Heritage Seeds, based in Reynolds, Indiana, the same year, in 2006, and eventually stopped selling non-GE varieties through this new acquisition altogether. Lewis Hybrids, an Illinois family business established in 1946, underwent similar shifts in catalogue offerings after it was acquired alongside Trisler and Heritage (see Figure 2).

Dicamba-resistant soybeans are a more recent example. Within three years of their introduction, these GE soybeans made up 60 – 75% of the soybean market. One interpretation of rapid adoption is demand. Another is lack of choice. In the case of Dicamba-resistant soybeans, as the new trait began to dominate catalogues and farm fields, many farmers across the Midwest and Southern states chose to grow these varieties not because of superior performance or other production considerations, but out of fear. A class-action lawsuit underway is representing farmers who believe they have no choice to grow these varieties or they risk losing their soybean crops that don’t survive contact with Dicamba. Non-resistant varieties are easily damaged by this herbicide because it volatilizes and drifts. The concerns are warranted: Dicamba drift affected approximately 3.6 million acres of soybeans in 2017. More than 1,000 farmers are currently suing Bayer for damage caused by Dicamba drift on account of this new chemical-seed package. And, as if organic and other non-GE grain growers didn’t have enough to worry about: Bayer is currently applying for government approval of Dicamba-resistant corn.

How do these trends in IP rights and concentration impact organic seed? Consolidation in the seed trade is as much about concentrated ownership of seed as it is about concentrated market power in the seed trade. One factor is that independent seed companies that don’t have the financial means for breeding programs heavily rely on licensing seed from bigger companies. For example, hybrid seed corn companies license inbred lines for their hybrid seed production, including organic hybrids. The largest biotechnology companies own the majority of these lines and are unwilling to license them in an untreated form; that is, without chemical seed treatments prohibited in the organic standards. It is illegal to use these lines without a license. It is also common for these licensing agreements to prohibit testing for patented, GE traits. This puts companies that want to protect their reputation as a supplier of “clean” seed in a vulnerable position of risking litigation if they decide to test for detectable levels of GE traits illegally.

The president of Albert Lea Seed House, Mac Ehrhardt, estimates that of more than 1,940 hybrid lines available, only 8% are available as a non-GE line and in an untreated form (see Figure 3). Field corn is one of the most widely planted organic crops in the U.S. and yet choice in organic seed is limited due in part to lack of access to appropriate lines. This lack of access serves as a barrier for expanding choice in organic hybrid seed corn, since these inbred lines can’t be treated with chemicals and ideally shouldn’t have the presence of GE traits.

But farmers, plant breeders, and seed companies are getting organized to both confront these troubling trends and find alternative paths. In 2016, the University of Wisconsin-Madison, in conjunction with the National Association of Plant Breeders, organized an Intellectual Property Rights for Public Plant Breeding Summit. The purpose of the summit was to identify mechanisms that facilitate investments in, and broader distribution of, publicly developed plant varieties. In other words, how can public breeding programs better ensure that farmers and the broader public benefit from tax-dollar investments and that these breeding programs remain viable? Best practices and policy recommendations have since been published at https://agronomy.wisc.edu/ipr-summit/.

Around the same time, a group of plant breeders, seed companies, academics, farmers, and nonprofits announced the Open Source Seed Initiative (OSSI). Inspired by the open source software movement, OSSI was created to “free the seed” – to create a protected commons. After finding it difficult to develop a practical and legally enforceable open-source license, the initiative instead published a pledge that farmers and breeders can use on their seed packets to communicate their intent for these varieties to remain freely available to everyone.

The pledge states: “You have the freedom to use these OSSI-Pledged seeds in any way you choose. In return, you pledge not to restrict others’ use of these seeds or their derivatives by patents or other means, and to include this Pledge with any transfer of these seeds or their derivatives.” OSSI has generated a lot of interest in the U.S. and abroad, and currently lists more than 400 varieties representing more than 40 crops on its website.

Nonprofits and universities are also re-evaluating, and elevating, the role that fair licensing agreements can play in furthering open-source principles when commercializing new varieties. These agreements neither prohibit farmers from saving seed nor restrict breeders from using the seed for breeding or research purposes. Fair licenses can also generate income, where reasonable royalties provide a return to farmer-breeders and public and non-profit breeding programs to help fund ongoing projects, as described below.

What should farmers know about IP rights on their seed?

Growers who want to know what, if any, IP rights are associated with the seed they are purchasing or already use can take the following steps:

Educate yourself. There are numerous forms of IP used in the seed trade, and most are legally binding. A comparison of these IP tools is included in Figure 4.

Check variety descriptions in seed catalogues. Look for language or a symbol in a variety’s catalogue description that indicates whether it’s a protected variety. For example, Fedco Seeds lists which varieties are covered by PVP certificates, or an OSSI pledge, or a host of other categories to guide your decision making.

Call your seed suppliers. If it’s unclear whether a variety you’re buying or already using has any IP rights associated with it, call the seed supplier to ask for this information and about what, if any, IP policies they hold as a company. As a customer, communicating your needs and concerns directly to your seed suppliers is the best way to let companies to respond to requests for more transparency. They may even start prioritizing varieties held in the public domain.

Read your seed packets and bags. Some seed packaging may have restrictions listed in fine print. Two decades ago, these licensing agreements on packaging – think of a shrinkwrap agreement on software – were only seen on bags of GE varieties of seed, such as Roundup Ready soybeans. Today, even non-GE crops sold by larger firms come with a “bag tag” that restricts seed saving and research, and delineates other egregious terms as well.

But not all IP is restrictive to managing seed as part of our commons. As one example, the breeding team at Organic Seed Alliance (OSA) co-released an organically bred sweet corn variety, ‘Who Gets Kissed?’, in partnership with the University of Wisconsin-Madison and organic farmer Martin Diffley. The variety was initially released to High Mowing Organic Seeds under an exclusive three-year contract, which has now ended, and returned a royalty to collaborators. Furthermore, unlike restrictive forms of licensing agreements, this agreement did not restrict farmer or breeder rights. In fact, in conjunction with the variety’s release, OSA published an on-farm organic sweet corn breeding manual for farmers looking to save seed and make selections on sweet corn. The manual teaches farmers how to adapt this variety and other sweet corns to their specific climate, farm conditions, and market needs – skills that are especially important as our climates change. In other words, seed saving is encouraged!

OSA also released an organically bred spinach variety developed in partnership with eight organic farms on the Olympic Peninsula in Washington. ‘Abundant Bloomsdale’ spinach is sold freely without restrictions through at least six catalogues. Some of these companies have chosen to return a small royalty back to OSA’s organic breeding program, but it’s not required.

IP can also be thought of as a way to acknowledge the contribution of seed stewards that long preceded us. Royalties can foster more trust and respect as part of seed exchanges. For example, insufficient attention has been given to the rights of Indigenous Seed Keepers who have stewarded seed over generations. Over the course of our violent history as a nation, their rights and relationships to seed were ignored and outright severed.

In a humble gesture toward reparation, Fedco Seeds initiated an Indigenous Royalties (IR) program that: “Recognizes the Native breeders and Seed Keepers of the past, whose varieties have endured and continue to sustain us here on Turtle Island.” A percentage of IR variety sales is given to a Wabanaki project in Maine. Giving back to the rightful stewards of a particular variety is one way to honor our relationships to seed and to each other, and to use the current commercial system, as broken as it is, to further social justice.

If you are a grower looking to commercialize a variety that you’ve developed on your farm, take a look at Figure 4 to understand what, if any, IP rights might fit your needs and values. Releasing new varieties into your region and beyond expands – and can generate new – diversity in our fields and marketplace, but only when coupled with a commitment to open access and shared benefit. In other words, grow and sell seed for the common good.

Creating a path toward decentralization

new-IP-Timeline-2019All of us have a role to play in fostering more decentralized models for how seed is bred, produced, and distributed.

From a policy standpoint, Congress should do away with utility patents to level the playing field and establish the PVPA as the sole IP protection for sexually reproducing plants. In so doing, farmers would regain their right to save seed, and breeders and other researchers would have better access to, and freer use of, protected seed. This is one step that could be taken to confront utility patents and the privatization of public research.

We should also continue to call for adequate funding of public plant breeding programs that are truly responsive to the diverse and regional needs of growers, that are fulfilling their mission to serve the public good first, and that support the health of both people and the planet. These investments should align with USDA’s mission to release new and resilient seed options into the public domain.

Think about the power encapsulated in each seed, the potential it embodies. We can leverage the collective power of people and plants to co-evolve in ways that generate more genetic and biological diversity, and allow us to adapt to a future that we can only try to predict. But to realize the full potential of our human-plant partnerships, we must create structural changes to how seed is managed and shared.

As discussed, the seed market is highly concentrated, as is the ownership of seed itself. The Department of Justice has abdicated its role in breaking up oligopoly power so it is up to the public to demand action and resist practices and companies that put the sustainability and security of our food and farming future at risk. Becoming educated on IP rights is one step in building a democratic seed system. Letting your seed suppliers know where you stand on restrictive IP tools is another one, and can ripple into a mighty wave of awareness and action that results in more seed remaining in our collective commons. Continuing to save, share, and sell seed in a way that supports access and fairness is a third way to participate in a seed system that is more just.

We, the people, hold the power. And we hold the seed, if we choose.