Evolution Empire

What you are eating is not natural. Seeds and Patents on Life

In 1930, the United States began granting patents for plants. By 1931, the very first plant patent was issued to Henry Bosenberg for his climbing, ever-blooming rose. Under patent law, the inventor of a plant is the person who first appreciates its distinctive qualities and reproduces it asexually. In other words, a plant can be created (such as by breeding or grafting) or it can be "discovered."

Plants discovered in "the wild" or uncultivated state cannot be patented, because they occur freely in nature. But a plant discovered in a cultivated area can be patented, even if it is discovered in a cultivated area owned by someone else. In addition, a tuber plant such as a potato cannot be patented.

In order to acquire a plant patent, the inventor must have actually asexually reproduced the plant. Asexual reproduction means that the plant is reproduced by means other than seeds, usually accomplished by cutting or grafting of the plant. Asexual reproduction is the cornerstone of plant patents because that is what proves that the inventor (or discoverer) can duplicate the plant. The patented plant also must be novel and distinctive.

"A new rose variety of the hybrid tea class distinctive in its character by being near thornless and by having blooms which open with the outer petals being a cream color and the center petals yellow orange as hereafter shown and described. This rose is novel and distinctive from previous rose plants in the following ways: (1) near thornlessness (i.e., only a few thorns appear on some bushes); (2) an attractive full foliaged spreading plant; and (3) a medium to large, tight centered, full, symmetrical, two toned cream and yellow orange bloom. Asexual reproduction of the Smooth Angel was performed in California and was continued through succeeding propagations."

If a plant has existed in nature and has reproduced, it is not novel. In other words, if the patent examiner can find a previously reproducing version of the plant in nature, a patent will not be granted. However, a patent will be granted if the only previous version was a spontaneous, one-time aberration incapable of reproducing. For example, imagine someone discovers and asexually reproduces a seedless fig plant. Even though the seedless fig plant existed in nature, it was not capable of reproducing. Therefore, the plant is novel and would qualify for patent protection. To be distinctive, the plant must have characteristics that make it distinguishable from other varieties.

Plant varieties produced sexually (i.e., by seed) cannot be protected under patent law, but can be protected under a federal law enacted in 1970 known as the Plant Variety Protection Act. This law is administered by the Department of Agriculture and is set forth in 7 U.S.C. §§ 2421, 2422 & 2541.

It is important to understand the history of plant patenting and the difference between various patent-type protections for plants in the United States. The first attempt to privately own plant genetic material was the Plant Patent Act (PPA) of 1930. With this legislation, breeders of vegetatively produced plants (i.e., by grafts or cuttings, as with fruit trees) could claim their newly developed variety as intellectual property. Unauthorized propagation of these patented plants was now illegal. However, other breeders could still use these crops as the basis for creating new varieties. Importantly, the law did not prohibit seed saving as those crops that reproduce sexually (that is, by seed germination) were exempted.

Next came the Plant Variety Protection Act (PVPA) of 1970. This law granted intellectual property rights over many seed- and tuber-propagated plants to Plant Variety Protection certificate holders. For the first time, seed saving from protected varieties was prohibited. This law included some important exemptions: farmers and gardeners could save and replant seed from PVP certificate crops, as well as sell their saved seed to other farmers. (Amendments to the act in 1994 eliminated farmers’ right to sell saved seed.) Similarly, researchers were permitted to use protected varieties in breeding projects.

These vital rights for the free and open use of seeds were effectively ended by plant utility patenting. Two landmark court decisions – Diamond v. Chakrabarty (1980) and Ex parte Hibberd(1985)—cleared the way for this most restrictive form of proprietary ownership over our seeds. In the Chakrabarty case, the Supreme Court radically reinterpreted existing patent laws to state that “anything under the sun made by man” was patentable – including forms of life. This premise was extended to plants by the Hibberd decision, leading to the first utility patents of plants. Utility patented crops have legal protections that forbid growers from saving or sharing seeds or using the plant in research or other plant breeding projects. Nearly 17,000 utility patents have been filed for plants to date, including many popular vegetable varieties.

The way seeds – the very basis of our food system – are treated globally is a strong reflection of the privatization of agricultural knowledge. Describing the development of the past hundred years, the IAASTD voices deep concerns regarding the future of our plant genetic resources, their diversity and natural universal accessibility.
For millennia, farmers have maintained seeds as a common heritage, and freely exchanged them.

At the beginning of the 20th century, seeds were still a public good that scientists improved according to the latest discoveries in genetics, especially Mendel’s laws of inheritance that saw a ‘rediscovery’ at that time. Public institutions systematically categorized seeds and made them available to farmers (the beginning of taking the freedom of planting natural food in the guise of “improved technology”)

Based on modern knowledge, the first large public seed collections were established, among others by Nikolai Vavilov in Leningrad. For the first time in the 1930s and 40s, private plant breeders claimed intellectual property rights to newly developed varieties. However, the International Convention for the Protection of New Varieties of Plants (UPOV), which was agreed in 1961, still ensured that the genetic material remained freely available to everyone for the purpose of breeding other varieties (breeder’s exemption) and that farmers were permitted to re-use the seeds they obtained from their own harvest on their holdings (farmers’ privilege). With the introduction of hybrid seeds in the 1920s through the company Pioneer Hi-Bred the foundation was laid for plant breeding to become a profitable business for private companies. As these high-yielding hybrid varieties do not produce seeds of uniform quality in the next generation, they have the effect of a “biological” plant variety protection (not needing a pesticide to resist the affects of insects and other natural occurrence).

This is a complete set-up to monopolize food to humans across the whole earth. A fact that is FAILED to be MEANTIONED is that these “improved technology seeds” are GMO “Genetically Modified Organisms” and once these GMO seeds are planted into the earth’s soil, NO OTHER NATURAL SEEDS CAN NO LONGER BE PLANTED THERE. Now that no other natural Heavenly Father given seed can be planted there, this gives perfect opportunity for corrupt humans to move in with there Companies and make you pay for their Dr. Frankenstein seeds from their laboratories, because they have poisoned the Earth with their GMO seeds to the point where no one can provide for themselves food, but have to crawl to the beasts who destroyed the Earth’s fertility for food. If the Heavenly Father made food free, why, seas of Humans, would you allow corrupt humans to put an ownership patents on God’s free water and food to live. These same GMO seeds not only destroy the soil of the earth, but they also causes all sorts of cancers in humans, then the pharmaceutical industry turns follows up with selling you their witchcraft pills for the illnesses that their Companies of destruction causes.

Since the 1940s, international agricultural research centers have specifically developed new high-breeding varieties, with funding from groups such as the Rockefeller Foundation or the Ford Foundation. These varieties were mainly developed in public non-commercial programs and made an important contribution to increasing cereal yields and fighting hunger in the 1960s and 70s. However, these high-yielding varieties were accompanied by a rapid global increase in the commercial use of pesticides and fertilizers. In the 1980s, some companies began to systematically invest in genetic engineering. For the first time, exclusive patents on genetic modifications and isolated genetic information made it possible to stop others using certain genetic traits in plant breeding. Since the turn of the millennium, companies have been increasingly successful in even obtaining patents on the results of conventional plant breeding, for example the content of certain substances or in the case of Monsanto’s “severed broccoli” patent, the element of having a long stalk. In addition, plant variety protection was tightened. The UPOV version from 1991 prohibits farmers from exchanging or selling patented seeds and restricts their reuse. Many farmers get government financing only if they use GMO seeds, which ruin their soil for any future use of natural sees, forcing them into a servitude to the unnatural entity now controlling the food.

The large companies had the GM products and, perhaps more important, the patented techniques to insert genes into plants. (There are patents covering non-GM crops, but it’s the GM technology that’s mostly at issue.) The smaller companies had lots of different kinds of seed adapted to different conditions and purposes. The easiest way for the large companies to get their GM varieties out into the market (and thus recoup the major investment they’d made in developing them) was to buy seed companies and attach their GM traits to those seeds.

In the 1990s, the seed market became increasingly dominated by a small number of multinational chemical companies, a concentration process that is still ongoing. At the same time, Monsanto, DuPont, Syngenta, Dow, BASF and Bayer control the global pesticide market. In 2008, the IAASTD warned that the top 10 agribusiness companies dominated 50% of the global trade of protected varieties. A few years later, only three companies control 53% of commercial seed sales. These companies focus on just a few profitable plant species, which are cultivated by solvent farmers on a large scale, as well as on regions that offer the necessary infrastructure and legal protection.
The IAASTD questions the benefit of patents and intellectual property rights for innovation, research and the dissemination of knowledge in the seed sector. Over the past years, hopes were smashed that access to patented seeds could be maintained if public universities and research institutes jointly affronted the private sector. Hopes were also dashed that the International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA) would uphold the fair exchange of genetic resources between private and public plant breeders which is oriented towards the common good.

Multinational companies stockpile patents on plants, animals, genetic information and processes, thus making research, development and especially marketing more complicated for their competitors and in publicly funded research. Their exploitation strategy for the new “raw material of knowledge”, including the increasing amounts of accumulated genomic data, mainly consists in barring others from using and further developing this knowledge. The looming threat alone of a long legal dispute of uncertain outcome is often sufficient to hamper further development.

Since the publication of the IAASTD, the global concentration of the seed markets has further advanced. In Africa, many attempts have been made to drastically tighten plant variety protection at regional and national level. Together with the seed industry and private donors, industrialized countries are exerting pressure on African governments to harmonize their seed laws through free trade agreements and development projects. Establishing an economically profitable seed market is one of the central strategies of the Alliance for a Green Revolution in Africa (AGRA), which was initiated by the Bill & Melinda Gates Foundation and the Rockefeller Foundation. In Latin America, one of the fastest growing seed markets, the privatization process is further increasing, especially in the case of the major cash crops soybeans and maize. In Asia, by contrast, especially in India and China, farmers still have relatively strong rights. In the European Union, as everywhere else in the world, patents on seeds are a bone of contention, reflected in the resistance movements against large seed companies.

Patents on vegetables are no different than other patents. The U.S. Patent and Trademark Office (USPTO) defines a patent as a property right granted by the Government of the United States of America to an inventor “to exclude others from making, using, offering for sale, or selling the invention throughout the United States or importing the invention into the United States” for a limited time in exchange for public disclosure of the invention when the patent is granted.

The patent term is generally 20 years from the filing of the application.

Seminis is among many seed companies who utilize patents to protect their intellectual property.

Here’s more shocking news: You may already be growing patented plants and not realize it! Many popular seed catalogs now contain utility-patented varieties, some improperly labeled or not labeled as such. Plant patenting regulations intended to serve as an incentive for crop breeders can create the opposite effect. They have become tools to restrict our right to save and share seeds. How much patent protection, if any, should be granted to GMO companies, especially when the companies are place in a position of power where patent rights have been utilized rightfully against farmers.

Resist Plant Patenting. Plant patenting is unacceptable. It stands in direct opposition for a resilient, regenerative local food systems.

Here are some things you can do to take action against seed patenting:

Avoid purchasing or planting utility patented seed varieties. Seed saving is an ancient tradition and fundamental right for all people that must not be infringed. Source your seeds from small, bioregional companies or community seed libraries and exchanges. Look for terms like “open-pollinated,” “heirloom,” and “landrace” which are not likely to be patented. Always contact seed sellers and ask about a variety’s patent status.

Demand full patent disclosure from seed companies. Plant utility patenting is becoming increasingly prevalent, yet few seed companies, especially organic seed companies, openly declare the extent to which they are now selling patented varieties. For example, by count in one popular 2019 organic seed catalog, 49% of the lettuce varieties listed for sale were now patented. This company declined to provide a complete list of the patented varieties they sell. This must change. Make your voice heard: Contact seed sellers and insist that patented varieties be clearly labeled in catalogs and on packets. Complete lists must be made available to growers.

Grow, save, and share your own seeds. The best way to oppose a system is often by creating something better to replace it. Save your seeds each season and share them with friends and neighbors. If you don’t know how to save seed – learn!

There’s no definitive research that can tell us the percentage of farmers who can’t get a seed they want. It does happen. It happened to Todd Leake, who grows soybeans in North Dakota. “After GM soy became available, we weren’t able to access conventional soybean seed in the Northern Plains, except for some old varieties that didn’t have good disease resistance,” he says. He adds that a program at North Dakota State University, which had bred soybeans adapted to local conditions, couldn’t compete with the big companies and stopped developing new varieties.

Among the dozen or so farmers and the corn and soy growers’ associations I’ve talked to, Leake is the exception. Although the widespread preference for GM seed ensures that there are often more GM choices than non-GM, farmers report a wide variety of both kinds, and an experience similar to that of Brian Scott, a fourth-generation farmer with 2,100 Indiana acres of corn, soy, popcorn and wheat. “I wouldn’t have trouble getting non-GMO seed,” he says, and seeds with just one GM trait, or several, are also available. One of the seed companies in his area specifically markets non-GM corn.

The story of Big Ag forcing GMOs down the throats of unsuspecting farmers, ensuring that those farmers not only pay through the nose but also can’t save seed and thus have to pay through the nose again next year, is largely fiction. And it’s a story that lots of farmers find really irritating, because it makes them out to be dupes or patsies. Roundup-Ready corn and soy, which can be sprayed with the herbicide glyphosate (used to kill weeds) and show no ill effects, are widely planted because farmers want them. And Monsanto has made piles of money because it developed plants that the vast majority of farmers wanted to buy. Had patent protection not existed, those companies might have focused almost exclusively on the one megacrop that farmers can’t save seed for regardless: Corn, a hybrid, doesn’t breed true. Patents ensure that crops like soy, for which farmers can save seed, also get attention.

The documentary David versus Monsanto, released in 2009, moved many people. It tells the story of a Canadian farmer whose land was contaminated by proprietary GMO plants from Monsanto, a big biotechnology company, and was sued by Monsanto for infringement. The Canadian Supreme Court ruled in favor of Monsanto. The documentary and other social media reactions have caused a backlash directed towards the GMO industry, and Monsanto has since become notorious for allegedly abusing legal rights. As one commenter on Amazon said, “whether or not you believe that GMOs are safe for human consumption, … you want to avoid GMOs at all cost” because of the “unbelievable greed” of biotechnology corporations. What is the truth behind the story? Has the patent system truly become a vehicle for big corporates to monopolize the market? To answer these questions, it is important to understand what is legal under current patent laws.

Why are GMO companies granted patents?

Patent rights on novel inventions are authorized by the US Constitution. The purpose of the patent system is to give inventors a period of exclusivity for commercial development of products, thereby encouraging innovation. The discovery, development, and authorization of a new GMO plant costs $136 million on average [1], and companies would not have been willing to make such investment without a period of exclusivity and profitability granted. But in the long run, the patent rights are not intended to be given at the price of public interest.

Utility and plant patents have a patent term of 20 years from the initial filing, so GMO patents protect a marketed product for about 15 to 20 years after the time of product development. For instance, Monsanto’s Roundup Ready soybeans launched in 1996, and US Patent Nos. 5,352,605 and RE39,247, the core patents underpinning the product, expired in 2011 and 2014, respectively. After a patent expires, the invention becomes public knowledge to which other companies, farmers, and other interested parties have free access. At that time, the GMO can be mass-reproduced and the underlying genetic design can be utilized by anyone to develop improved versions of the GMO. This eventual free access is one way in which GMOs developed by private companies could bring about public benefit.

What is covered by the GMO patents?

At first sight, GMO patents should protect GMO plants. Among the wide spectrum of inventions covered by US patent law, plants are indeed patent-eligible. As long as one discovers or invents a new plant in a cultivated state and is able to asexually reproduce it, he or she may obtain a patent on the plant. Congress passed the Plant Patent Act in 1930 as a result of plant breeding and other agricultural efforts, making new plant strains derived from crossbreeding patentable. Since then, the act has also incorporated plants produced from modern biotechnological methods, such as integration of foreign DNA into plant genomes.

Interestingly, GMO companies often don’t seek plant patents for their plants and seeds. Instead, they obtain utility patents, a different type of patent with more stringent requirements on the description of the invention. While plants discovered by chance or generated by crossbreeding oftentimes don’t satisfy these requirements, detailed information of GMOs at the molecular level is usually available. Utility patents have several advantages over plant patents. First, utility patents may cover inventions beyond plants. If a GMO involves integration of novel, foreign DNA into the plant genome, the uniquely designed DNA can also be protected by utility patents. Second, utility patents provide better protection against infringement. As seen in the Supreme Court case Bowman v. Monsanto, utility patents prohibit the replanting of seeds harvested from a licensed plant. In contrast, plant patents allow licensees to sexually reproduce indefinitely, as long as they don’t provide or sell the seeds to others for planting. Therefore, utility patents provide more extensive protection for GMO plants.

The two patents involved in Bowman v. Monsanto are utility patents for DNA sequences. One relates to engineered genes that allow for robust production of foreign proteins in the plants. The other covers the gene encoding an enzyme that gives rise to Roundup tolerance. Gene patents were recently ruled by the Supreme Court as invalid, but GMO companies are still able to obtain patents on complementary DNA (cDNA), an edited version of the original gene. By patenting the cDNA sequence of a gene and its variants, GMO companies can prevent others from introducing the gene to any other plants without having to obtain individual patents for each plant. Under such patent protection, Monsanto generated Roundup-tolerant soy, corn, cotton, canola, and alfalfa using the same core technology. Other GMO front-runners, such as Bayer and Syngenta, also predominantly possess utility patents on GMOs.

The history of seed development, distribution, and ownership reflects today’s dominant economic paradigm of the last several decades, which converts basic elements of life – such as seeds and genetic resources – into private, commercial assets.

Until the last few decades, seed development and distribution in the U.S. was largely under the purview of the public sector and augmented by hundreds of small, often family-run, seed breeder businesses, which acted mainly as distributors of publicly developed seed varieties. This contrasts sharply with the situation today in which the top ten companies control 65 percent of proprietary, or intellectual property (IP)-protected, seed.