The Gene Rush

As biotech crops blanket more and more of the countryside, America's organic farmers are struggling to keep their crops organic. The natural tendency of pollen and seed to wander from field to field, along with improved genetic-detection methods, have made it harder than ever to produce organic food that can be labeled as free of patented, engineered genes.

So in 2002, a group of plant breeders led by scientists at Cornell University set out to breed organic corn varieties with built-in protection against stray genes.

To do so, they took advantage of a well-known, naturally occurring gene, Ga^S, that inhibits fertilization of a corn plant by uninvited pollen. It looked like a neat way to keep patented pollen out of the organic gene pool, but there was one hitch.

The key to the breeders' plan, the Ga^S gene, was patented.

Last April, Nebraska seedcorn company Hoegemeyer Hybrids was awarded United States Patent 6875905, entitled "Method of producing field corn seed and plants." It described the use of Ga^S to block foreign corn pollen. When I asked Tom Hoegemeyer, chief technology officer of his family's company, how he first hit upon the idea, he said, "There was no particular flash of insight. It just occurred to me back in '95 or thereabouts. I remembered reading about it back in grad school."

But members of the Cornell team don't understand how patent examiners ever could have approved the application. They say the gene Ga^S is extremely common in tropical corn varieties, that it has been transferred many times into US strains, and that the idea has been published in the scientific literature.

Novelty and "non-obviousness" have always been two essential characteristics of a patentable idea. But the use of Ga^S, says Frank Kutka, who worked on the project as a Cornell graduate student, "is not novel and is perfectly obvious."

He points to an article published exactly 50 years ago in Agronomy Journal, then the premiere journal of agricultural research. In that paper, an Iowa State University scientist described the use of Ga^S for virtually the same purposes that are described in the Hoegemeyer patent.

But until someone invests considerable time and money to challenge the Ga^S patent, it will stay on the books.

Hoegemeyer's is only the latest in a long parade of patents laying claim to naturally occurring plants and genes. In 2001, the U.S. Supreme Court upheld the validity of patents on crop varieties and all of their parts, including pollen, egg cells and genes. The effect of the Court's opinion, written by Justice Clarence Thomas, was to declare the agricultural gene pool open to genetic prospectors. And the rush is on.

Bean counters and melon squeezers

In the world of patents, novelty is supposed to be king. Many of today's genetic patents demonstrate cleverness -- no argument there -- but too often it's the cleverness of the poacher, not the inspiration of the inventor.

In one widely discussed case, a Colorado business executive named Larry Proctor obtained a patent on a yellow version of the common dry bean. To come up with his "invention," he pulled a few yellow specimens out of a bag of normal-colored beans bought in a Mexican market. After growing plants and selecting among them for a few generations (a generally ineffective way to breed beans), Proctor applied successfully to the U.S. Patent and Trademark Office.

The 1999 patent covers much more than his own variety of bean. If you want to market any beans with a similar shade of yellow in the United States, the patent requires that you get a license from Proctor. Proctor has brought lawsuits to defend his claim, but as of July 2005, his family professed never to have collected a penny.

News of Proctor's patent caused more than a little bafflement in Latin America, where people have been growing, trading, cooking and eating yellow beans for millenia. Indeed, Proctor's beans are almost identical genetically to yellow varieties from Mexico. Despite protests, the patent continues in effect.