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, GaS, 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 GaS 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 GaS 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 GaS 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 GaS, 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 GaS for virtually the same purposes that are described in the Hoegemeyer patent.
But until someone invests considerable time and money to challenge the GaS 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.
Shamrock Seed Co. of California wants to patent a honeydew melon with "improved firmness." If the patent is granted, other melon breeders will either have to make sure their own varieties are a bit mushier than Shamrock's, or pay a license fee. The company's January 2005 application applies not only to its own strain of melon, but to any honeydew melons that meet certain specifications in a standard squeeze test.
Pure World Botanicals, Inc. of South Hackensack, New Jersey now holds patents on root extracts from maca, a plant native to Peru, for use in treating sexual dysfunction. As you might have guessed, maca has long been used by indigenous Peruvians to improve fertility, enhance libido and treat impotence. If the patented extract works (or, at least, if it's advertised with sufficient gusto), it could stimulate some exciting profits for Pure World.
Similarly, HerbalScience LLC of Naples, Florida filed a patent application in 2002 for a method of extracting the compound kavalactone from kava, a plant traditionally used by the people of the western Pacific to make a drink with mildly psychoactive properties. The application includes a description of "a rapid dissolve tablet formulation for use in the delivery of kavalactones."
One of the most notorious cases of "biopiracy" was the 1997 patent awarded to RiceTec, Inc. of Alvin, Texas for basmati, the popular aromatic rice of South Asia. Thanks to unrelenting pressure by Indian seed activists, the Delhi government successfully challenged the patent.
But this year, there comes word that a group of scientists in Thailand is applying in Europe and the U.S. for a patent on jasmine rice. They claim to have traced that rice's distinctive scent to a nonfunctional gene. But surely no government would award a patent for a gene that doesn't work -- or would they?
Sure they would. Monsanto holds a European patent on the indigenous Indian/Nepalese wheat variety Nap Hal, which lacks one of the genes that gives bread dough its elasticity. The patent covers not only Nap Hal, but any wheat developed by using Nap Hal as a breeding parent.
The claim is that Nap Hal's flour, with its genetic impairment, will be useful in making unleavened products like cookies. Using that logic, a shrewd inventor could patent a telephone with a broken ringer as "a voice-communications device impervious to telemarketing calls."
In 2000, Jeff Ehlers and Mark Sterner of Appropriate Engineering and Manufacturing in Riverside, California received a patent on "popping beans." Such beans, which pop when heated, are descended from varieties grown since ancient times in the Andean region. Ehlers and Sterner's patent was approved because they bred popping beans that can flower and produce a crop under the longer summer days of the United States.
Breeding the beans for insensitivity to day length would hardly seem to meet the Patent Office's criterion of non-obviousness; it's routinely done by breeders of many crops who want to make use of tropical varieties. Nor was it novel. A few months before Ehlers and Sterner applied for their patent in 1997, scientists from the University of Wisconsin published a paper describing their development of non-patented popping beans adapted to northern latitudes.
Not just for Monsanto
Note that only one of the above incidents involves a major biotech multinational. Patent fever isn't an exclusive disease of the Fortune 500. But with their myriad biotech patents, Monsanto, Syngenta and other "gene giants" have pushed smaller competitors into making their own grab for patents on life, both wild and tame.
Sometimes it's a matter of self-defense. For instance, Tom Hoegemeyer says his main reason for patenting the corn gene GaS was that he "didn't want it to fall into the hands of the big tech companies" which might restrict its use by organic farmers. And he says that his company is leaning toward granting free license to Cornell to use the system.
Frank Kutka, now assistant director of one of North Dakota State University's research centers, isn't impressed. He says that the well-worn defensive-patent rationale ("If we don't do it, someone else will") is rarely justified for genes or crop plants.
He says, "Hoegemeyer Seeds should just admit that this patent is not valid since it was obvious and not novel, and release this idea back into the public domain from which it clearly came. Then they should go out and sell their seeds as well as they can. I bet they will sell just fine, patent or not."
At the heart of the problem, says Kutka, is a U.S. Patent and Trademark Office inundated with applications targeting naturally occurring genes and organisms -- and they shouldn't be treated like patents on cancer drugs or can openers.
He asks, "How can we help the patent evaluators get around their inexperience in matters of plant breeding and the conflict of interest built into the system, wherein the applicant is their sole source of information? It is a bizarre and inefficient system begging for reform and assistance from the plant breeding community."
Hope Shand, research director for the Canada-based ETC Group and co-author of The Ownership of Life: When Patents and Values Clash, says genetic patents are not serving their intended purpose: "Whether it's a multinational or an individual, it doesn't matter -- a patent gives the owner the same rights, and those rights are being used to inhibit innovation rather than promote it."
A crop variety plays two distinct and crucial roles in agriculture. In the farmer's hands, it is a producer of food, feed or fiber, while in the breeder's hands, it's a section of pipeline through which genes that evolved in the wild for millions of years flow through the present and into the future.
Since 1970, the federal Plant Variety Protection Act (PVPA) has provided a means for plant breeders to obtain intellectual-property protection for crop varieties. At the same time, through exemptions that allow seed saving and breeding, PVPA keeps that variety's genes in the public domain.
PVPA is still widely used. But with their 2001 decision, Justice Thomas and the Supreme Court legitimized a parallel system -- patenting -- that is clogging the genetic pipeline.
Today, efforts to find innovative ways around the patent system, such as Science Commons and Biological Innovation for Open Society (BIOS) are adapting some of the methods of Creative Commons-type copyright licensing and open-source computing to the living world. So far, they have been focused on biotechnology, but it should be feasible to build a comprehensive system for genetic resources, both wild and domestic. The tried-and-true PVPA law has characteristics of an open-source system, but getting a single variety approved costs the breeder a few thousand dollars in fees.
Reflecting on his own collision with the world of patenting and the need for an alternative, Frank Kutka concludes, "I see the granting of private monopolies on genes by the government as a 'takings' from the rights and property of the public and farmers."
Hope Shand sees a broader lesson: "Even though many people recognize that intellectual property laws are stifling research and thwarting new discoveries, a 'culture of enclosure' is pervasive in our economy. It is important for people to resist the increasing pressure to accept that culture."