This is the first of three posts examining the topic of GMOs and patents. As the first post in the series, I’ll provide an overview on the topic of patents and will describe the concept of “terminator genes”; the second post will examine a few high-profile lawsuits brought against farmers for using GM seeds, and the final post will examine whether there have been cases of lawsuits brought against farmers due to inadvertent contamination.
Before I continue, I must add an important disclaimer: as a research scientist developing genetic assays, my income relies on the fact that I help make unique products whose patents are protected and defended. It takes years to develop a well-functioning product, and companies rely on patents to recover the heavy investment made in R&D.
Even when I went through grad school, we signed documents regarding patents (basically outlining how anything we discovered would be property of the University/Hospital). As such, I believe that patents have a purpose, which is the same purpose as copyrights/patents on art, music, electronics, and software: to respect the work of its authors.
To have a product reverse engineered at a fraction of the price the year after a product’s release is highly unethical and I believe that patents can prevent such incidents from happening. My perspective is that if consumers don’t like the fact that the item they’re purchasing is patented, they can try to find an item that performs the same function that is open-source or off-patent. It is also important that this not be misconstrued into an argument supporting excessive earnings or corporate rights, nor do I believe that patent laws are perfect.
With that in mind, let’s investigate the topic of intellectual property surrounding seeds.
Enforcing Patents on Plants
The International Union for the Protection of New Varieties of Plants (UPOV), is an organization established about 50 years ago with the express purpose of protecting new varieties of plants with Intellectual Property laws. The organization has a long list of member nations, including the US, Canada, Chile, and many nations in the EU. The plants protected under its laws are not only genetically modified plants, but also plants generated through traditional breeding. In order to be granted breeder’s rights, the plant variety must be new, distinct, and must be genetically stable and uniform (basically meaning that each seed should be genetically identical to the next). The breeder’s rights are then protected through legislation in each member nation. Breeders can license their technology to other companies or institutions. There are also exemptions, including uses such as research and subsistence farming.
Some transgenic crops are coming off patent (which basically means that a patent has expired). Monsanto’s Round-Up Ready Soy Bean came off patent late last year, and became the first open-source or generic GMO. Karl Haro von Mogel wrote about the implications of this event in this blog post.
It must be stressed that GM seeds are not the only plants to have patents. Decorative plants, such as orchids and roses, are commonly patented as well. Pluots didn’t just appear in a day: their development took much research and trial/error. As such, there are patented varieties of pluots. Thus, the patenting of seeds is much broader than just GM crops (see here and here for unofficial lists of patented plants).
Genetic Use Restriction Technologies and Sterile Seeds
Before I started learning about GMOs, I had heard about “Terminator Genes” and had been under the impression that many genetically modified seeds used this technology. Legend has it that GMOs are sterile due to terminator genes, which forces farmers to buy seeds from one season to the next. In reality, terminator genes do exist, but they have never been commercialized. The bulk of the information in this section is summarized in the freely available article “Genetic use restriction technologies: a review“.
The technical name for Terminator Gene technology is “Genetic Use Restriction Technology” or GURT, and there are two types of GURTs: varietal GURTs (V-GURT) and trait GURTs (T-GURT). V-GURTs allow breeders to develop plants that grow and form seeds, but the second generation of seeds is sterile. There are different types of V-GURTS, including some designed to prevent gene-flow or “cross-contamination” between transgenics and other crops. The T-GURT technology has the trait (herbicide tolerance, biofortification, etc) controlled by a molecular switch which is activated by a chemical or some other stimulus, such as heat. Using this technology, breeders would provide farmers with “activated” seeds which would have the trait of interest, but the seeds of these crops would not have the trait activated.
The first patent for a GURT was filed in 1991 by Dupont, followed by a second one in 1992 by a company now owned by Syngenta. But the topic of GURTs never caused much ruckus until a patent was filed in 1995 by the USDA together with the Delta & Pine Land Company for seed sterility by means of a “genetic switch”. This patent was promoted in scientific publications and other fora, and the term “Genetic Use Restriction Technology” was adopted to describe it.
Many groups started protesting GURTs, including NGOs, farmers, and the general public, primarily due to the fact that many farmers in developing nations practice seed saving. Several papers published around the time examined the impact that GURTs may have in developing countries and predicted that it would likely “increase the polarization between commercial and subsistence farmers, as well as between developed and developing regions and societies” (see here and here and here).
Due to these protests, agricultural companies began stating that they wouldn’t use GURTs, including Monsanto who acquired Delta & Pine Land Company in 2007. Yet, despite such statements, the number of patents on GURTs by public and private institutions/companies has not ceased, suggesting that companies are still seeking the “development of alternative strategies to prevent the unauthorized use of patented seeds and plant varieties“.
Seed piracy is a serious issue. Setting aside the millions of dollars in revenue loss for companies, seed piracy can mean that seeds are being sold and planted in regions where they have not been approved. As this BBC story outlines, crosses are being performed by farmers using GM seeds and local varieties. Often times the transgenic seeds were developed using strains not suited for the climate where they are being illegally grown, which has led to crop loss. As such, GURTs can be an important regulatory tool, as well as an important revenue generating mechanism for companies.
However, most analyses I read highlighted how GURTs will most likely widen the gap between developing and developed agricultural sectors. T-GURTs may be a viable solution, so that farmers in developing nations can replant the seeds but would not benefit from the biotech trait that has been introduced in them. However, if the trait is not active, there isn’t much value in the seed. As such, I feel that it is best not to implement GURTs until an ethical solution is envisioned.
If GMO Seeds are not Sterile, how do Companies Prevent Replanting of Seeds?
Instead of using Terminator Gene technology, ag-businesses have their customers sign a contract whereby they obtain an annual license. Here’s a copy of Monsanto Technology Stewardship Agreement and here’s a copy of Syngenta’s agreement (I was really surprised at how short the documents were. I was expecting something similar to the 56 pages in the iTunes Terms of Agreement). The clauses are fairly straightforward.
As an example, by signing Monsanto’s Stewardship agreement, you agree not to sell or distribute the product in regions where the product is not registered. You agree to follow all the directions and instructions for growing the product, particularly EPA restrictions. The document outlines that if Monsanto believes that a customer has retained seeds, the company will request all the appropriate documents to determine if new seeds were purchased. Monsanto also has the right to test and inspect a grower’s field.
Such agreements are not unique to GMOs. BASF’s Clearfield seeds, which are herbicide tolerant but are not transgenic, have stewardship guidelines very similar to the examples provided above.
Despite the availability of copies of licensing agreements online, many activists believe that farmers are forced to buy seeds from companies annually. Farmers have written about the choices they have when purchasing seeds (see here, here, and here). By purchasing seeds from a company, in no way is a farmer locked into a life-long contract: as outlined in this post, farmers can even choose to buy glyphosate/Round-Up from a different vendor when buying Monsanto’s Round-Up Ready seeds. Farmers can choose whichever seeds they’d like, from whatever company they prefer, be they GMO or not, patented or not.
It is equally important to note that many farmers buy new seeds each season, even if the seeds are not GMO or are not under a licensing agreement. This is due to the fact that seeds are often sold as hybrids, a fact explained in this video. Briefly, hybrid seeds have the “best” of the traits that breeders were looking for. However, once these plants grow and produce seeds of their own, it is unlikely that the latter will have all the beneficial traits present. So many farmers choose to repurchase new seeds each year to get the best crops they can.
In the next post, I’ll go over a few key lawsuits between farmers and Monsanto.
Great article about a highly controversial issue. Stopping ‘piracy’, whether it be movies or specially designed seeds continues to be such a great challenge. Thank you!
One of the most bizarre aspects of this debate is that Vandana Shiva goes around telling everyone that GMOs were horrible because patents.
But she brags about keeping patent laws out of India. http://vandanashiva.com/?p=260
She also lied about terminators extensively. It’s astonishing to me that people take her seriously.
Am I missing something obvious? What exactly is the problem with having a product that can only be used once? Surely there are plenty of other products we buy that fit this description (airline tickets, breakfast cereal and toilet paper are a few that spring to mind). Of course, consumers might be delighted to have never-ending airline tickets, bottomless bowls of cereal, etc., but why are seeds inherently different?
It’s ironical that many people complain about the risks of genetically engineered organisms escaping into the environment (e.g. herbicide tolerant canola or Aquabounty salmon): why isn’t terminator technology applauded as an extra safety measure, rather than being vilified?
It has always been about amusing to me that the same people that complain about GMO escapes into the natural environment also complain about terminator tech.
I don’t think we have problems with using a product 1x in developed countries. However, farmers in developing nations may not have the means to continuously purchase seeds. If GURTs were to exist, big-Ag companies would probably start investing heavily in restricting their newer (and arguably more innovative) traits. As such, it is reasonable to think that agriculture in developing countries would lag even further behind, or only farmers with significant means would be able to afford the seeds for such traits.
Sure, but no one forces farmers in developing (or developed) countries to buy plants from big-Ag, right? And remember, patents expire after 20 years. So even farmers in developing countries don’t have access to the latest GMO varieties, they will get access at some point.
That’s pretty much the whole point of having patents. People get govt protection to make and sell new things, but only for a while, and only if they tell everybody how to make their new thing. Then once the oatent expires, it’s available to anyone.
You’re missing a lot of things. A brain is #1. Integrity is #2
It’s true that no one forces anyone to buy a specific type of seed, but to me there’s a difference between having options on the market vs having true choice: given finances, predatory lending, etc, it’s quite possible that purchasing the latest GMO variety may not be a feasible choice for a small farmer in a developing nation. It’s true that patents expire after 20 years, but that’s a very long time in the development of a nation’s ag sector.
I think that there are solutions: for example, if there’s an innovative trait, Monsanto/Syngenta could license it to a local seed developer who could introduce the trait into local varieties without the GURT, for regional use only. But countries would need to invest more heavily in developing local seed varieties and would need to start addressing seed piracy. I’d imagine that such systems would need to be in place before the first GURT is marketed, to avoid public backlash.
Here’s an example of how pharma works with developing nations when they have a life-saving/important innovation: http://www.gilead.com/news/press-releases/2014/9/gilead-announces-generic-licensing-agreements-to-increase-access-to-hepatitis-c-treatments-in-developing-countries
Also keep in mind that patenting a genetic innovation is not always in service of commercial endpoints. Public and philanthropic seed developers also patent genetics but not with the purpose of monopolizing for commercial return to investors. And even where the patenting serves private, commercial purposes, there are also public benefits that accrue.
The patenting in and of itself is not where the restriction lies, its how the patent holder chooses to license the use of the product and the effort to enforce its chosen license restrictions. New seed varieties developed by the public sector, and even sometimes by the private sector, may be patented but are liberally licensed. Golden rice, bt brinjal are examples of very liberal licensure where the public sector developers purposely exercise their intellectual property with the intent of widespread free or nominal cost distribution, and indeed encourage seed saving (and the intellectual property in the bt trait was essentially donated). Sometimes, genetic innovation is intentionally developed as a public good, and public and philanthropic seed developers still patent for the purpose of avoiding privatization. Additionally, patenting and license restriction does facilitate dissemination of even public sector, public good genetics since granting exclusive licensure enables private sector companies to invest in the seed propagation and distribution necessary to make new seed varieties widely available.
Patent and licensing restrictions, even for the public sector, further enable the ability to police the marketplace to enable and guarantee seed quality and identity so that farmers wanting to purchase certain seed genetics can be confident they are actually getting those genetics. Poorly enforced intellectual property results in bootlegging and black market activity and a caveat emptor situation where farmers are often sold misrepresented seed or of dubious genetic quality. For example, suppose a land grant university produces a variety of wheat that is resistant to rust, a trait that would be highly valued sought out by producers. Unfortunately, there are those who would seek to pad their income by brownbagging some of the wheat they produce from this new variety. Downstream buyers however, are not guaranteed that the brownbagged wheat genetics are not diluted and some wheat represented as the new rust resistant variety may not carry that trait at all. In such case, the market can be inundated with seed farmers purchase thinking they are getting rust resistance when it is really inferior wheat without or of diluted rust resistance. In India, prior to the approval of bt cotton, there are reports of a thriving cottage industry and black market in pirated bt traited cotton. Reports of examples of failure of bt cotton are likely attributed to a great extent to seeds being represented as bt that were of diluted or dubious genetic purity or flat falsely misrepresented, or the bt trait being available and sold only in varieties not suitable for some growing conditions. The approval of bt cotton by companies that could control the seed production and distribution stages restored integrity to the marketplace.
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