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Don’t Touch That Lavender: The Problem With Patenting Plants

This month, inspired by Lavender + Petals, we’re investigating the practice of patenting new plants as private intellectual property. Is it really possible to claim ownership over the natural world — and should we?

Let’s say you’ve been raising a gorgeous lavender plant of the Myrleigh cultivar. Its light purple petals are the envy of all your friends — so much so that they’ve begun to beg for cuttings of the plant so they can grow their own. Never one to hoard the wealth, you eagerly agree.

And, in doing so, you’re breaking the law.

As it turns out, Myrleigh is a patented variety of lavender.1 That means you are forbidden from distributing it — even privately among your friends — without permission from the patent holders.2


Myrleigh (left) is a patented lavender cultivar, which means it cannot be propagated without the express permission of the patent holder, unlike angustifolia (right), also known as “true lavender”; Source: Plantland


In simple terms, a patent grants an inventor protection over their creation for a fixed period of time and allows them to control how their invention can be used or sold. Since the passage of the Plant Patent Act of 1930, the U.S. government has allowed plant breeders to patent new varieties of plants.3

Similar protections for new plants are enforced in countries throughout the world. On the surface, these systems seem obviously fair. Like any invention, the development of a new plant variety often requires a lot of blood, sweat, and tears — or at least soil, sweat, and tears — on the parts of gardeners and growers. Why wouldn’t they be allowed to claim ownership over the fruits of their labor, no pun intended?

“Plants are naturally living, evolving beings, and their own biological processes are just as involved in the creation of new cultivars as the guiding hand of a grower is.”

But a new variety of plant is a different kind of thing than an inert invention, such as an improved vacuum cleaner or innovative smartphone design. Plants are naturally living, evolving beings, and their own biological processes are just as involved in the creation of new cultivars as the guiding hand of a grower is.

Furthermore, the development of genetic technology has allowed multinational agribusinesses to patent new plants at the DNA level. Could all varieties of corn, beans, and rice eventually belong to a handful of megacorporations? Many small farmers fear these patents open the door to a whole host of problems with potentially disastrous consequences for their livelihoods and the global food supply.


In 1931, Henry Bosenberg developed a rose variety called “New Dawn,” pictured above. It was the very first plant patented in the U.S.; Source: Smithsonian Mag


Who Owns Your Genome?



For centuries, growers could only cultivate new plants through careful breeding and selection. That all changed in the latter half of the 20th century, when our expanding understanding of DNA led to the birth of genetic engineering.

American biochemists Stanley N. Cohen and Herbert W. Boyer are widely considered the first genetic engineers, thanks to their successful experiments inserting new genes into E. coli bacteria.4 By the 1980s, genetic engineering technology had advanced enough to pique the interests of large agribusiness companies, like the controversial Monsanto. These organizations began to heavily invest in the genetic modification of plants to increase crop yields and boost resistance to diseases and pests.5

Genetically modified plants often provoke concerns about food safety and environmental danger, but their most troubling repercussions might exist in the realm of intellectual property. When major corporations produce new genetically modified plants, they are allowed to patent the specific genetic traits of those plants. These patents forbid people from cultivating plants with the same genetic traits. 6


Prior to the invention of genetic engineering, growers worked wonders through nothing more than careful breeding and selection. Over the centuries, farmers turned the unassuming Brassica oleracea, pictured above, into such wide-ranging cultivars as kale, broccoli, cauliflower, and Brussels sprouts; Wikipedia and RabbitduckWorkshop


That wouldn’t necessarily be a problem if those patented genetic traits could not occur spontaneously in non-engineered crops. Recently, however, companies have also been winning patents on genetic information for plants produced solely through conventional breeding. In 2013, for example, Monsanto was granted a European patent for a type of long-stalked broccoli produced through standard breeding and selection.7

The patent was revoked in 2018 after significant public outcry, but it nevertheless stands for small-scale farmers as a worrying sign of what could come.8 It is entirely feasible that a person could create a similarly long-stalked broccoli — intentionally or not — through simple breeding. Were Monsanto able to hold its patent on this broccoli trait, it could claim ownership over those broccoli plants, even though they were not grown from Monsanto seed.9

We’ve already seen variations of that scenario unfold. In 1999, Monsanto sued Canadian canola farmer Percy Schmeiser for growing its genetically engineered canola plants without buying a license to do so. But Schmeiser had never intentionally planted Monsanto seeds: He argued the plants ended up in his fields because wind and insects carried the pollen in from elsewhere. The Canadian Supreme Court ruled in Monsanto’s favor on the grounds that, in its view, unintentional possession is still possession.10


“Patents on specific genetic plant traits could lead to further domination, forcing more small farmers to either grow the crops of major corporations or bow out of the business entirely.”

Canola fields in Luoping, China; Source: Rove.me


Just three companies — Monsanto, DuPont, and Syngenta — control more than 50 percent of the global seed market, thanks to the fact that their genetically modified crops often produce higher yields than organic alternatives. Patents on specific genetic plant traits could lead to further domination, forcing more small farmers to either grow the crops of major corporations or bow out of the business entirely.11

On an even larger scale, the patenting of plants and genetic information could be devastating for food security and biodiversity. As more and more plants become protected intellectual property, farmers become more restricted in the kinds of crops they can grow. That directly reduces the diversity of agricultural crop production. That reduced diversity, in turn, makes our food supply more prone to pests and pandemics. If everyone is growing the same seeds from the same companies, then everyone’s crops will be vulnerable to the same threats.12

“For the average consumer, that [seed-patenting] would also mean far less say over what you put on your plate.”

As James Campbell, chief executive of U.K.-based nonprofit Garden Organic, put it, “We can foresee a time when not just plants, but the very DNA of a seed could be patented — leading to control of our heritage seeds by the large agribusinesses. This will affect farmers, small plant breeders, and ultimately the food supply chain.”13

For the average consumer, that would also mean far less say over what you put on your plate. If big agribusiness has de facto control over the food supply chain, fewer farmers would be able to bring organic, sustainably grown produce to market. Despite your ethical, environmental, or health concerns, GMOs would be on the menu.

Patented in 1935, the Hass avocado tree was the first tree patented in the U.S. The above drawing accompanied inventor Rudolph G. Hass’s patent application; Source: Invention Protection


Beware the Biopirates



For much of human history, farming was a communal and cooperative activity. Growers readily traded seeds and secrets, with the understanding that the natural world was a public good — and better crop yields were a benefit to all.

Plant patents can disincentivize that behavior, motivating growers to closely guard their crops. Even if a farmer wanted to share their plants and processes, seed-licensing agreements with the companies that own those plant patents might legally bar them from doing so. In fact, seed-licensing agreements even prevent farmers from saving seed to plant a new crop; instead, they have to buy new seed every year.14

It’s one thing for companies to patent plants they’ve developed through their own direct efforts. There may be troubling repercussions, but at the very least, one could argue these organizations are simply claiming ownership over their own inventions. But there’s another side of plant patenting — one that raises even bigger ethical problems.


“It’s called 'biopiracy': the act of patenting a biological resource that previously existed as a public good in a community.”


It’s called “biopiracy”: the act of patenting a biological resource that previously existed as a public good in a community.15 For example, in 2013, the Indian newspaper Business Standard reported that some 30 patents had been granted in the U.S. for culinary, medicinal, and cosmetic uses of tamarind. Many of those patents claimed ownership over uses and processes that had long been traditional knowledge in India, the world’s largest producer of tamarind.16

Biopirates claim ownership over previously existing natural resources and cultural practices that have not been patented yet. Tamarind, a staple of Indian culture and cooking for centuries, has been the subject of numerous U.S. patent claims; Source: YouTube

The biopiracy of tamarind echoes Monsanto’s patenting of conventionally bred broccoli: It becomes conceivable that a private company could claim ownership over a good it had no hand in producing. People could be prevented from engaging in long-standing customs, all because some unscrupulous (or simply misinformed) person saw an opportunity to make some money. The privatization of plants, then, is not just the privatization of the planet: It restricts our very means of relating to the world and continues the Western world’s tendency to view nature as an economic resource separate from culture and our broader natural ecosystem.



Open Source: It’s Not Just for Software



Janna Rose, a researcher with the French business school Grenoble École de Management, warns we may see instances of biopiracy intensify in the coming years.

“Biopiracy is not likely to disappear any time soon,” she writes. “As climate change threatens, many large agribusinesses and researchers are patenting drought-resistant, heat-resistant, and salt-resistant genes from plants for future use in crop species.”17

Yet the future need not be a bleak one. Taking cues from the open-source software movement, activists and scientists around the world are already pushing for a more equitable and democratic approach to plant ownership. Sometimes, they even have government backing.

Seed packets from the Open Source Seed Initiative; Source: TreeHugger

Take GenBank, a public database of genes maintained by the U.S. National Institutes of Health. By making this genetic material freely available, GenBank makes it harder for private companies to patent genes by claiming they are unique or newly discovered.18

Some groups are intervening in agriculture more directly. Formed by a coalition of plant breeders, farmers, seed companies, and sustainability advocates, the Open Source Seed Initiative (OSSI) is developing a collection of public-domain seed varieties. OSSI’s intent is similar to GenBank’s: By releasing these seeds to the public, OSSI ensures neither they nor their derivatives can ever be claimed as private intellectual property.19 As of now, OSSI has entered more than 375 varieties of more than 50 crops into the public domain.20

Meanwhile, MIT’s Open Agriculture Initiative (OpenAg) has developed what it calls “Personal Food Computers” to further democratize agriculture. Built and run on open-source code and 3D-printed parts, these box-like devices can fit comfortably on a typical kitchen counter. Once a Food Computer is up and running, it can grow a variety of produce right inside a person’s home. The system can track and control environmental variables like carbon dioxide concentration, humidity, and temperature, using a public library of “climate recipes” to recreate the exact conditions necessary for a given plant to thrive.21

A bank of OpenAg’s Food Computers, fully assembled; Source: This is Mold


Skeptics may be unsure of how organizations like OSSI and OpenAG can compete with the major players in agribusiness, but the goal of achieving fully public seed vaults and farming methods may not be such a pipe dream. Supporters note that, in the analogous open-source software movement, companies — like Red Hat — have built billion-dollar businesses on open-source code.22

Could something similar happen in gardening and agriculture? Could we return to our agricultural roots and reimagine nature as something shared, something we steward rather than own?

It just might. The natural world is our common heritage, and as the growing outcry against corporate agriculture has shown, we don’t take kindly to being closed out from the very planet we live on.

— The Keap Team



Citations


1. Justia

2. USPTO.gov

3. Technically speaking, patents can only be granted for plants that are reproduced asexually (through cuttings, for example, rather than through pollination). For sexually reproduced plants, on the other hand, growers can apply for “plant variety protection certificates.” Authorized by the Plant Variety Protection Act of 1970, the protection certificates are functionally similar to patents, except they also allow for the use of protected plants for research and “public interest” purposes.

4. Britannica

5. Global Agriculture

6. Ibid.

7. Ibid.

8. Life Sciences Preview

9. Garden Organic

10. NPR

11. Garden Organic

12. Ibid.

13. Ibid.

14. FastCo.

15. The Conversation

16. Business Standard

17. The Conversation

18. Ibid.

19. FastCo.

20. Wikipedia: OSSI

21. OpenAg.mit.edu

22. FastCo.


Article Credits



Words by Matthew Kosinski
All other credits noted.


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