The development, testing, and regulation of genetically engineered crops usually takes a significant investment of time and resources, and it comes as no surprise that these crops are patented so that their developers can recoup their investments. Farmers who grow these crops usually pay licensing fees for the use of the technology, and sign license agreements that restrict their ability to save the seeds. Now, a variety of GMO herbicide-tolerant soybeans has been released by the University of Arkansas with no technology fees, and no license agreements to sign. The farmers are free to save the seeds and replant them ad infinitum. This is possible because the patent for the first genetically engineered trait in soybeans – Roundup Ready – has expired. The world of “generic” or Open Source GMOs is upon us, however, there are still some practical challenges ahead.
The University of Arkansas tells the story of this new variety.
The University of Arkansas System Division of Agriculture has released its first soybean variety that features Roundup Ready® technology.
Division soybean breeder Pengyin Chen said the new variety, called UA 5414RR, offers the weed control advantages of Roundup Ready® soybeans without the added cost of technology fees. He said growers could also save seed from each harvest for planting the following year.
Monsanto’s patent on the first generation of Roundup Ready® products expires in March 2015, Chen said, and the company shared the breeding material with public breeding programs, including the Arkansas program directed by Chen. He said UA 5414RR fills a niche for growers who want to use the Roundup system of weed control but don’t want to pay the higher cost of the next generation Roundup Ready 2 Yield® technology.
They then go on to explain that this variety yields about 7% lower than the top varieties in the area, however, the benefit to the farmer is the same weed control technology but without the licensing fees. The ability to save seed is also an attractive prospect for some farmers, particularly for marginal areas.
Last year, a high-profile Supreme Court case was fought over whether a farmer could purchase genetically engineered soybean seeds from a grain elevator and plant them without a license agreement. Bowman v. Monsanto was decided unanimously in favor of Monsanto’s position, meaning that this practice was not legal. Bowman had argued that he only did this for a second planting of soybeans, which may or may not reach harvest-able maturity before winter sets in. The high cost of GMO soybeans would make this too expensive for him to do. The arrival of this new variety means that for farmers like Bowman who wish to reduce their planting costs for risky or low-profit soybean crops can now do so – with the same weed control that they have grown accustomed to.
The goal of patents is to encourage investment in the development of new technologies by allowing an inventor to have a temporary monopoly on profiting from their inventions. But when applied to self-reproducing organisms (and other replicating inventions) it can lead to issues that are independent of the technology itself.
It is not common that you will find a patented computer chip technology accidentally landing in another company’s products, but with patented seeds, this can happen with pollination, admixture, and wind. There has been no verifiable case of any farmer anywhere being sued for accidental mixture of GMO crops in their fields at a low level, and it would be quite silly for a company to attempt to do so. Nevertheless, it is frequently brought up as a risk of GMOs. Restrictions on research and development with a company’s patented products also feature widely in the current meta-debate over this technology. This new soybean variety has the potential to separate the issues with the technology itself and the patent system we use to incentivize the development of the technology.
The kind of patents that are used with GMOs (and a few conventionally-bred varieties) are “utility patents.” Many of the issues over patents and GMOs may stem from the fact that utility patent violations are judged on the basis of strict liability. That means it doesn’t matter how the patent violation occurred, or how much – just that it did. Some critics of GMOs and patents on them want to end strict liability to prevent these kinds of lawsuits. (Ironically, some of the same organizations also argue for strict liability on the part of a company that develops a GMO crop that you find on your land and don’t want.) It is patently obvious that a few stray plants in another farmer’s field do not affect the goal of patents to encourage innovation, and we should take steps to ensure that no one abuses the technicalities of patent laws in the future.
But utility patents are not the only kind of intellectual property in the plant breeding world. There are also plant patents and Plant Variety Protections (PVPA) which protect the work of the plant breeder who crosses, selects, and develops the genetic background of the plants themselves. PVPA allows for seed saving by farmers, which is what the press release at the University of Arkansas mentions – and nothing more. It is likely, but not yet verified, that the new soybean variety will be protected under PVPA, so using these seeds for breeding purposes may still require a license from the breeders at the University of Arkansas. This new soybean variety demonstrates that off-patent GMOs can be useful for the development of new varieties with benefits, however, it would be necessary to have someone release a public variety with this off-patent transgenic trait for there to be truly Open Source GMOs.
The Real Challenge for Public, Open Source GMOs
The prospect of off-patent Open Source GMOs for public benefit is an exciting one, and is the right and intended outcome of the patent system. However, the enthusiasm for these off-patent GMOs must be reigned in by a looming threat that could jeopardize their continued use – the expiration of approvals in export markets. It is not widely known, but if Open Source GMOs are to become a reality this issue must be addressed head-on.
The greatest impediment to saving seeds once the patent on the trait expires is not the technology developers, it is the regulatory systems in other countries. Many of the key US ag export markets approve a trait for a limited number of years. Once that approval expires, the trait developer must go through the regulatory approval process all over again – which means spending money to do more research and submit data to the regulators. Similarly, the EPA requires renewals and the submission of new data as well for crops such as Bt crops.
So once the patent expires and farmers start saving seed, who is going to maintain those regulatory approvals in the export markets? Who will continue to provide data to the EPA for the continued use of traits when they go off-patent? Without regulatory approvals in export markets, and maintaining the EPA registrations, we may see these traits wither on the vine.
The same thing goes for any public research project to develop GMO crops. While initial development, regulation, and approvals can be achieved for such projects, maintaining them perpetually can be a challenge.
While public resources are stretched thin as it is, the collective resources of farmers – the primary beneficiaries of the current round of traits – could make it possible to maintain these approvals. Currently, Monsanto – the developer of the Roundup Ready trait, has pledged to maintain the approval status of the first Roundup Ready trait in soybeans through 2021, which gives about 7 years of time.
Coming back to the goal of patents, as Ramez Naam puts it, “The inventor gets a temporary monopoly to reward them for their research and development, and in exchange, society gets the permanent benefit of their invention.” But in the current state of affairs, the permanent benefit may be curtailed by the expiration of approvals elsewhere. If we are to turn GMOs that go off-patent into public, open source, and new proprietary varieties of crops that will endure, this is the challenge that we face.