GE Seed Patents, Cross-Contamination, and the Trouble with Cyborg Super Shills from the Future

In being involved public science communication, I come across a number of people who accept the international scientific consensus on the safety of Genetically Engineered (GE) foods for humans, animals and the environment, but who nevertheless dislike them because they are against patents and licensing agreements. Regardless of whether one likes the current IP laws, or whether one even likes the concept of patents at all, it’s important to understand why seed patents exist and why a dislike for IP laws is not a valid argument against GE foods.

The issue with patenting plant technology is analogous to software agreements. We’re talking about a product which requires years of development and massive overhead investment, and as soon as the product goes out the door, anyone can make as many copies as they want at virtually no cost if given a Carte Blanche to do so. In the case of GE plants, it takes an average of about ten years and $136 million to bring a new product to market. That includes R&D as well as multiple tiers of safety testing. The premise is that by allowing a means by which companies can recoup their investment, the option of patenting an invention incentivizes further innovation.

Now, you might argue that there are also instances in which patents on a versatile new technological idea might delay additional innovation by postponing when other people can legally incorporate it and build on it in new ways, but even if you could demonstrate that, it still wouldn’t constitute an argument uniquely against GE foods.

Why?

Because being a GE product is neither a necessary nor sufficient condition for being patented. Not all GE products are patented, and there are many non-GE products which are patented. In fact, plant patents precede genetic engineering by well over half a century due to the plant patent act of 1930:

Here are some examples from the 1930s, of which this one was the first. And you can see several other from around that time here, here, here, here, here, here, here, here and here. This one here is an example of a patented organic seed (yes, they do indeed exist).
For anyone interested in learning more about the history and development of seed patent law, you can follow up with this Delta Farm Press article.

In other words, seed patents aren’t some new phenomenon that arose concurrently with GE crops, nor are they uncommon in non-GE crops. This author from Europabio puts it thusly:

“Agricultural innovation plays a key role in driving long-term agricultural productivity, rural development and environmental sustainability by encouraging new solutions. For this reason, innovation needs to be supported and protected.

Contrary to what some say, GM seeds are not the only seeds with Intellectual Property Rights. Almost all conventional (non-GM) and organic hybrid seeds are patented and cannot be saved for use in the next planting season.

In any industry, the maintenance of IPR is an essential basis for innovation and progress.”

So, if you run across someone whose justification for opposing GE seeds is that they often involve patents, then you immediately know that either

A. they don’t realize that the same criticism could be used against other breeding methods, and that it doesn’t even apply to all GE products.

Or

B. they are applying a double standard in terms of which they’ve somehow arbitrarily chosen to single out one technological line of innovation for involving patents to the exclusion of all other breeding methods, all of which can (and often do) involve patents as well.

In the former case, a person can’t know what they don’t know. Nobody knows everything, and sincere mistakes do happen. You can try explaining to them, and they’ll either reevaluate or they won’t.

In the latter case, however, the act of singling out one breeding method may be a symptom of motivated reasoning, and may be indicative of an ideological (or in some instances possibly even financial) bias that really has nothing to do with patents or with other arguments he or she might make against the technology to which he or she is opposed.

It’s also worth mentioning that patents have expiration dates.
Here is an elucidating article on Monsanto’s own page about patent law and what happens when a plant patent expires. In this case, their original roundup ready soybean trait just expired in 2015.

That said, another misconception I sometimes hear is that patenting a food product permits its holder to “control the food supply,” and to set prices as they deem fit. However, plant patents do not give the owner the ability to regulate seed quantity and price. The market does that. Patents merely permit a time windows during which to recoup their investment for their innovation by disallowing people to use the product without permission and sell it as their own. There are other seed companies, and they compete for farmers’ business by offering good seeds at competitive prices.

Yet another particular outlandish misconception I’ve sometimes heard people claim is that the patents somehow allow companies (usually Monsanto is the accused party) to “force people to use their seeds.” This is of course complete nonsense. That has never happened. A seed company can’t force anyone to use anything. Many farmers choose to use GE seeds because they permit them higher outputs for fewer inputs, or for whatever other benefit they deem pertinent to their particular goals.

Moreover, it’s simply not the case that most farmer’s find the stewardship agreements of Monsanto and other seed companies onerous. If they did, then they’d just keep shopping around until they found a company whose seed licensing agreements they liked.

But doesn’t the Great and terrible MonSatan have complete and unchallenged dominion over the Intergalactic Food Supply, you ask?

Here is a Tee Shirt of this.

Not hardly.

The truth is that farmer’s have more choice in seed than a lot of city folk realize. Here’s one seed catalog, but if one googles around, it is easy to find others. The anti-GMO people have been simply been spreading incorrect information:

In this excellent follow up article (which I highly recommend), Steve Savage sums it up brilliantly:

“The modern anti-biotechnology narrative would have you believe that certain companies (Monsanto usually being portrayed as the ultimate demon) are using patents in some new paradigm to “control the food supply.” This view ignores the fact that plant variety patents have been a common feature of crop genetics since 1970 and that a great many of those patents are held by universities, by the USDA, and by similar international agencies (Patents for vegetatively propagated plants have been an option since 1930).

Actually, the most foundational tools of biotechnology for plant, pharmaceutical or industrial use were patented by scientists at Stanford University.  For a time, any group that did genetic engineering needed a license to the Stanford-held, Cohen-Boyer patents that are now considered a “gold standard” for university licensing.

When, in the 1990s, commercial biotechnology entered the agricultural seed market space, the fact that such products were patented was nothing new.  For decades, commercial, academic and government researchers have typically patented their inventions.  None of this is sinister.  If someone develops a crop variety that has real economic value to farmers, it does not matter whether the innovation originated in the public or private sphere, it may well be patented.  For any entity to take the following steps to commercialize that trait, the temporary exclusivity afforded by a patent makes it worth their effort and investment to do so.”

The patent argument is also related to a couple of other common anti-GMO arguments. Those arguments involve complaints about so-called “terminator seeds,” which are seeds engineered not to be sterile so as not to produce second generation plants.

Terminator seed technology was researched but never deployed (Monsanto had bought a company that had been researching it, but chose not to use it-in part due to screaming on the part of activists). The reason why farmers can’t save the seeds produced by their GM plants for next season is due to contractual terms of agreement, which stipulate not to re-use them. That usually brings up a related argument regarding seed saving, which I’ve already covered here.

The cliff notes version is that the trend towards not saving seeds predates GM foods by several decades though, so it’s not a uniquely GM or uniquely Monsanto-related phenomenon. Hybrids in particular tend to produce inferior second generation crops. If it’s the contracts telling them not to reuse seeds that people don’t like, the they just buy from someone else. There are a lot of seed companies out there as we saw earlier.

Here is an article from Monsanto concerning the Terminator Seed tech:

“Monsanto has never commercialized a biotech trait that resulted in sterile – or “Terminator” – seeds. Sharing the concerns of small landholder farmers, Monsanto made a commitment in 1999 not to commercialize sterile seed technology in food crops. We stand firmly by this commitment, with no plans or research that would violate this commitment.”

The irony of the protests against terminator seeds is that they would have rendered it physically impossible for cross contamination of crops to occur, which is another thing activists often complain about Monsanto allegedly suing for (but which in reality has never happened, and probably never will). They do occasionally sue people for deliberate copyright infringement, in which case they then donate the money to youth leadership initiatives and scholarship programs. They have to defend their patents or else they become meaningless and they lose them.

In 2012, a coalition of organic farmers known as the Organic Seed Growers and Trade Association (OSGATA), with the help of the Public Patent Foundation (PPF) attempted to sue Monsanto over the issue of cross pollination. They were asked to provide evidence that anyone had ever been sued by Monsanto for accidental trace cross-contamination, and lo and behold, they lost the case because they couldn’t produce a single case of it ever happening. SCOTUS declined to hear the case because OSGATA had no evidence that it ever had or ever would happen. You can peruse the court documents here.

“Indeed, plaintiffs’ letter to defendants seems to have been nothing more than an attempt to create a controversy where none exists. This effort to convert a statement that defendants have no intention of bringing suit into grounds for maintaining a case, if accepted, would disincentivize patentees from ever attempting to provide comfort to those whom they do not intend to sue, behavior which should be countenanced and encouraged. In contrast, plaintiffs’ argument is baseless and their tactics not to be tolerated. “

The PPF and OSGATA case was particularly ridiculous in my opinion because it was a preemptive lawsuit for something that Monsanto has never done, and claims they never will do. Yet, the plaintiff wanted to push them into a stronger relinquishment of their rights to protect their patents, such that pretty much anyone could get away with stealing their products.

They were ostensibly trying to preemptively sue Monsanto for something they had never done on the grounds that they “might” do so in the future (even though Monsanto has explicitly declared that it will never do that). OSGATA intentionally tried to make up a controversy, but the courts weren’t buying it.

“The Public Patent Foundation had written a letter to Monsanto basically asking for a blanket immunity for all the plaintiffs against ever being sued for patent infringement, even if they did intentionally engage in infringing activity. Monsanto responded with a statement of its policy, which it had previously published in other venues:

‘It has never been, nor will it be[,] Monsanto policy to exercise its patent rights where trace amounts of our patented seeds or traits are present in [a] farmer’s fields as a result of inadvertent means.’

Amazingly, the Public Patent Foundation characterized Monsanto’s statement as an implicit threat, and as such the basis for declaratory judgment action.

The court totally rejected this flawed logic, declaring it “objectively unreasonable for plaintiffs to read [the language of Monsanto statement] as a threat.”

In conclusion:

Singling out GE foods by admonishing seed patenting is not a valid argument. They incentivise technological innovation by allowing inventors to recoup their investments. Plant patents are not unique to GE seeds. They’d already been common for over half a century before GE technology, and not all GE seeds have patents or expensive licensure agreements, and the ones which do, eventually expire. There are no terminator seeds on the commercial market, the trend of not saving seeds predates GE by over half a century, and no, farmers don’t get sued for accidental trace contamination.

BOOM!

• Credible Hulk