Patents on living things threaten biodiversity and our resilience against climate change. In this episode, we examine how a VLS professor is helping plant breeders use “defensive publication” to keep innovations open-source and promote biodiversity.
Patents on living things threaten biodiversity and our resilience against climate change. In this episode, we examine how a VLS professor is helping plant breeders use “defensive publication” to keep innovations open-source and promote biodiversity.
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This podcast is a production of Vermont Law School's Environmental Law Center.
Mason: [00:00:05] Hello and welcome back to Hothouse Earth. We're your hosts, Mason Overstreet.
Jeannie: [00:00:09] And I'm Jeannie Oliver. Today on the show, broccoli, beans, and Intellectual Property.
Mason: [00:00:28] So, Jeannie, we'll be bringing back Molly McDonough from the Center for Agriculture and Food Systems here at Vermont Law School, as well as Professor Emily Spiegel, to help us explore how intellectual property laws have concentrated power over seed development and seed use in the United States in a few large companies, and how that threatens farming livelihoods, biodiversity, and food security in the face of climate change.
Jeannie: [00:00:53] Hi, Molly. Welcome back.
Molly: [00:00:55] Hi, Jeannie and hi Mason, thanks for having me. So my story today starts with one of my favorite vegetables, which is broccoli. And recently I was lucky enough to talk about broccoli with Jim Myers, who's a plant breeder at Oregon State University. We were actually talking about the broccoli stalk, which Jim says is his favorite part of the plant to eat.
Jim: [00:01:21] To tell you the truth, my favorite part of the broccoli is the stalk. Sometimes we'll do a provencale, like parboil the broccoli and then sautee it with olive oil and garlic and a little bit of parsley.
Jeannie: [00:01:32] I love broccoli stalks, especially steamed. But Molly sadly, we're not going to be talking about our favorite broccoli recipes today.
Molly: [00:01:39] No, I was actually talking to Jim about plant breeding and intellectual property rights, which is a topic that we're involved in at Vermont Law School's Center for Agriculture and Food Systems. So Jim actually told me a crazy story about a variety of broccoli that was developed back in the 1990s.
Jim: [00:01:58] Ok, well, the broccoli thing happened when I moved here and started breeding vegetables. In 1996, my predecessor, Jim Baggett, had started a broccoli breeding program and he had this idea of breeding broccoli that was suitable for mechanical harvest. And part of that was modifying the architecture of the broccoli to make it taller and with a head that stood up above the canopy and was more easily harvestable.
Molly: [00:02:31] So as a plant breeder and researcher at a university, Jim's predecessor, also named Jim, was breeding new varieties of plants that were useful in different ways. He would basically mate plants together, identify the best offspring and then save the offspring seeds for the next year. Just to clarify, we're not talking about genetically modified organisms here. We're actually just talking about regular old fashioned plant breeding. Essentially, it's what plant breeders have been doing since the onset of agriculture like ten thousand years ago. And that practice is why we have so many of the plants that we do.
Mason: [00:03:09] So Molly, what are plant breeders trying to achieve by breeding plants together? What are they looking for in the plant?
Molly: [00:03:16] Breeders might select for a plant that's easy to harvest because it has a stalk that's long and delicious, like in the case of the broccoli. Or they might select for a plant that has other traits that make it more suited to a changing climate, for example. And in doing so, they're not only helping farmers, they're also diversifying the genetic pool. So they're contributing to the biodiversity of the plant world. And that's really important. Coming back to Jim Baggett and his broccoli, Jim Myers explained that Baggett was a big proponent of sharing the germplasm, or the seed, that he developed so that other researchers and breeders could use it, too. So he wouldn't patent the seeds that he developed.
Jeannie: [00:04:00] Molly and Mason, before we go too far, we should probably just pause for a second and talk about patents and that they're a form of intellectual property and they protect people's creative works and inventions. Basically, patents stop people from being able to freely use the work or invention without the creator's permission.
Mason: [00:04:20] Exactly, and our listeners might be surprised to know that plants can be patented. Molly, can you tell us a little more about that?
Molly: [00:04:28] Sure. So even though they're living things, plants can be patented. And just to give a quick context, up until the 1920s, plants were considered products of nature and you couldn't patent them. But over time, there's been a lot of pressure from the private sector, from companies that could potentially profit off of owning rights to genetic material, to make living things patentable. In 1930 Congress passed the Plant Patent Act, which allowed for patenting asexually reproducing plants. And then in 1970, the Plant Variety Protection Act was passed, which allowed for a kind of protection for sexually reproducing plants and gave breeders intellectual property rights over the new varieties that they released. So at that point, farmers could still save seeds for their own use from year to year, or they could share them with neighbors, for example, until a couple of court decisions that happened in the 1980s. There was Diamond v. Chakrabarti, and that case involved patenting a genetically modified bacteria. And the Supreme Court actually ruled that anything under the sun made by man could be patented and that included forms of life. Then there was the case Ex parte Hibbard, which involved corn, and that cleared the way for ultra restrictive utility patenting of plants. So as opposed to regular patents, which only cover the plant itself, utility patenting protected plants' genetic traits, and it could forbid growers from saving or sharing seeds or using the plant in research or breeding, for example. So since this type of ownership can be very lucrative, the number of plants with utility patents has since skyrocketed. But there are still plant breeders who don't work for private companies or who don't want to patent their seeds. People who want to encourage biodiversity, build resilience against climate change and encourage collaboration and research. And Jim Baggett was one of them.
Jim: [00:06:37] What he would do is he would periodically release germplasm and when he would release it, he would send it to various companies and tell them what the significance of it was. And he sent it to a company that was eventually merged to become part of Monsanto. And, you know, for many, many years I heard nothing about it.
Molly: [00:06:58] So basically what happened is that this Dutch company got hold of Jim's special broccoli and the researchers at the company used it to breed their own broccoli with an exserted head. That's the long stalk that I mentioned that makes it easier to harvest. And that company eventually became part of Monsanto, which is not actually surprising. In recent years, the seed industry has really consolidated to the point where four companies now control more than 60 percent of global seed sales. So the company actually pursued a US patent on the broccoli with an exerted head, meaning that they claimed ownership of the trait, even though about half of the genetic material in their seed came from Oregon State University. And Jim Baggett, unrelated and independent from Monsanto, is the one who invented the trait.
Jim: [00:07:50] If they had gotten the broad patent, it would have meant that I would have had to ask permission to be able to read and release any of the material that that I was curating and continuing to breed with.
Molly: [00:08:01] Fortunately, the patent examiners ultimately in this case decided that the patent was too broad, but the process took years with continued appeals from the company drawing it out. And it was very stifling for the team in Oregon because they didn't know whether they would end up getting sued for infringement over the plants that they'd been working on that entire time.
Jeannie: [00:08:26] So Molly, Monsanto used the genetic material from Jim's new broccoli variety to create a new but very similar type of broccoli, and then Monsanto tried to patent the new broccoli. And if the patent had been granted, Jim or anyone else wouldn't be able to grow Jim's broccoli anymore. That doesn't really seem very fair. Does this happen often?
Molly: [00:08:49] Yes. So these intellectual property issues are super intense in the plant breeding world, Jim has other stories, too, like he talked about how back in the 90s somebody patented a yellowish colored bean variety and the patent itself actually laid claim to any bean with that certain shade of yellow color .
Jim: [00:09:11] The patent turned out to be rather egregious in its overreach, is what I would say, because there are beans, many beans in the public domain that have this particular seed coat color. And of the way the individual got this variety was also somewhat dubious and that he had gone down to Mexico and bought a pack of beans and there were seeds in there. And so he grew them out for like a couple of years and selected something that he thought was pretty good. And then that's what became this variety enola.
Mason: [00:09:46] Wow, so my understanding is that basically this person went down to Mexico, took some seeds for yellow beans, brought them back, and then patented anything that had its color.
Molly: [00:09:58] Yeah. And there were actually customs agents at the US Mexico border with color charts turning away exports of Mexican beans that had this color and sending them back to Mexico, even though the patented bean trait had essentially been taken, you might even say stolen, from Mexico. So eventually the patent did get invalidated, but that took 13 years. And that means that there were 13 years where any breeder who wanted to release any seed with this color of being would have had to get permission from a private company to do so.
Jeannie: [00:10:30] That's that's crazy. I imagine this situation makes it really difficult for plant breeders to do their jobs.
Molly: [00:10:36] Jim told me that it absolutely does and that it's just gotten worse and worse over time.
Jim: [00:10:42] I think at the moment it is very stifling. What I would say it's a silo thing where everybody has their own silo, where they're working with their material and making crosses. But there's very little exchange happening between those silos. The only way you can get this material is if you get a license. And usually there are restrictions on them, what you can do with the material, either in terms of breeding or, you know, when you go to release something, the company may want a piece of the royalties that come out of it. So, yeah, this is ... There's a quote, I can't remember who it's by at this point. But basically the individual is saying that if we had had the same intellectual property regime that we have now back when the Green Revolution was taking place, it would never have happened. The Green Revolution would never have happened. Just because of the restriction and in access to germplasm among breeders.
Molly: [00:11:47] So just to clarify, the Green Revolution was a time during the 50s and 60s when agriculture throughout the world transformed and became a lot more productive due to advances in research. And it's also a controversial time because those advances are associated with environmental degradation. But it definitely was a moment where researchers were working collaboratively to confront the challenge of feeding a growing world population by sharing knowledge and sharing seeds. And now we're facing another huge challenge, which is climate change. And we're going to need biodiversity and plants that are able to survive in the warming climate. But unfortunately, in the past century, about 75 percent of crop genetic diversity has been lost. And as I mentioned, what remains is mostly controlled by just a few big companies. So there's a big lack of collaboration. I should also mention that the situation puts farmers in a bind because they have fewer options for planting. If they grow plants with utility patents, they can't save seeds. So they have to buy new seeds every year. And just like breeders, they live under the threat of legal action from patent holders if they inadvertently use plant varieties that are too similar to patented ones.
Mason: [00:13:17] So let's back up and talk about the legal issues here. We have big companies patenting genetic traits, putting seed breeders and farmers in tough spot and potentially making it harder for us to achieve biodiversity and food security in the face of climate change. So what can plant breeders like Jim do about this?
Molly: [00:13:38] Well, we're fortunate here at Vermont Law School because Professor Emily Spiegel of the Center for Agriculture and Food Systems is an expert in this issue. I think Emily's work is so interesting because she's figuring out how to take a legal method called defensive publication that's often used in other industries like tech to keep inventions in the public domain. And she's figuring out how to use them in seed. So I caught up with Emily to learn more about that. First, I asked her what plant breeders have typically done in the past to prevent their inventions from being locked into patents.
Emily: [00:14:16] The most straightforward option is for a plant breeder to patent their invention themselves, and that prevents anybody else from being able to get a patent on it. However, many plant breeders don't do that either because of the expense involved in filing a patent application and the the difficulty of obtaining the patent, or sometimes because they object on principle to locking up their own plants into patents.
Jeannie: [00:14:47] And Molly, that's Jim's position, right, and why he gave his leases to Monsanto because he objected to locking up his own plants and patents.
Molly: [00:14:56] Yeah, that's exactly right. Emily also mentioned another method plant breeders can use called open source seed pledges.
Emily: [00:15:04] Open source seed pledges typically attach to seeds when they're sold. And essentially the packaging includes a pledge that the buyer will not seek intellectual property protections on anything that's created from those seeds. And I think there have been some different attempts over the years to do this as a binding contract and also to do it as a non binding pledge. One of the main challenges with the open source seed approach is that that open source promise might not be passed down from the first buyer to subsequent buyers in later generations of seeds. So it's easy for something that starts as open source to lose that designation within a few generations. At the same time, I think the open source pledges have done a lot to raise the profile of intellectual property issues in plants and have galvanized some members of the plant breeding community to really think about what it is that they want from an intellectual property regime in plants and and what would best fit the needs of that community. So I think there's a lot of value to that approach. Even though it's not necessarily legally binding.
Molly: [00:16:40] So Emily is saying that patents and pledges both have their shortcomings. Pledges may not have enough of a legal standing, while patents can be overly restrictive if a breeder wants to keep genetic material open source. And that's why Emily is a proponent of this lesser known strategy I mentioned called defensive publication. Basically, you can take the plant variety or the breeding method or genetic material that you've developed and you can publish information about it so that everybody can access it and therefore it becomes prior art. Here's how she describes the strategy.
Emily: [00:17:16] For an inventor to obtain a patent, the invention has to be new or novel if it already exists elsewhere. It would be considered prior art, meaning that it is part of the existing body of knowledge within a particular field. A defensive publication is an intentional way of producing prior art. It's the practice of publishing a description of an invention just to show that that invention exists so no one else can later claim a patent on it. And it's a practice that can be applicable to any industry. It's sometimes used by companies as a component of a broader intellectual property strategy in which the company might seek patents on its most important inventions, but then use defensive publication as a cheaper and simpler alternative for secondary or maybe less lucrative inventions. The main advantage of defensive publication is that if it's effective, it can stop patents from being issued to other people at a relatively low cost to the person making the defensive publication. It takes advantage of the novelty requirement within patent law itself to ensure that nobody who subsequently develops an invention that substantially the same can get a patent to exclude others from using it.
Molly: [00:18:48] Emily also explained how she got involved in applying defensive publication to plant breeding.
Emily: [00:18:55] This wasn't a new idea. It's something that other legal scholars have written about, including legal specialists at Biodiversity International, and something that has come up with me in discussions with colleagues who are concerned about maintaining access to plant genetic diversity for farmers and plant breeders. But at CAFS, what we wanted to do was to take the next step in making the practice of defensive publication more accessible. We wanted to take this theory that defensive publication could be an effective tool for plant breeders and figure out what information plant breeders need to put that theory into practice.
Mason: [00:19:41] So Molly, say there's a plant breeder who wants to use defensive publication and establish their invention as, quote, prior art. Do they need to hire a lawyer? How do they even begin?
Molly: [00:19:52] Well, about a year ago, Emily and a student named Cydnee Bence, who's now a fellow on our team at the Center for Agriculture and Food Systems, collaborated with a group called the Rural Advancement Foundation International. And they coauthored a guide for Plant Breeders that outlines exactly how they can do this themselves. It's free, it's available online, and we'll definitely add a link to it on the resources page for this episode. It's a bit more complex, but Emily, give me a quick overview of how it works.
Emily: [00:20:24] There's not much formal process to it, actually, but there are several elements that people should keep in mind if they want to create a defensive publication. The publication needs to include the name of the inventor or inventors. It needs to include the name of the new plant variety or whatever the new invention is. Another key factor is it needs to include an enabling description, and that's a description that allows a reasonably skilled plant reader to recreate the breeding process without having to go through undue experimentation.
Molly: [00:21:06] So it's pretty straightforward. And another thing I think is really interesting is the potential implications for food justice and seed justice. Because in contrast to regular patents where there's an individual inventor, with defensive publication, you could conceivably use it in situations where a plant variety has been stewarded through many generations, like within a community. And I think that could be a strategy for indigenous seed savers, for example, to publish information about a plant variety and thus prevent outside entities from patenting the same invention. Now, it might not be the right strategy if a community doesn't want to disclose traditional knowledge to the public at large. But it's definitely an interesting idea, and it's something that I think Emily hopes to explore a bit more in the future. In any case, Emily says that so far the defense of publication guide has been really well received in the seed breeding community, Jim Myers, for one, is super excited about it. When it came out, he described it as being essential for anyone in the plant world, trying to prevent plant genetic material from being co-opted or simply trying to navigate the laws and regulations surrounding intellectual property.
Emily: [00:22:24] The most exciting thing for me has been to see interest from the plant breeding community in working together on what those next steps should be. At the Center for Agriculture and Food Systems, we're working with our partners to continue to find ways to make defensive publication more practical and accessible for plant breeders and farmers.
Mason: [00:22:50] Wow, well, this is just a fascinating and really complex issue and pretty daunting what's facing the US and the world at large regarding this. We're really looking forward to kind of hearing more and seeing what the team comes up with and and are so fortunate just to hear from you, Molly, and the folks who you interviewed.
Molly: [00:23:12] Well, thank you. Yeah, I know Emily is exploring some interesting options, like possibly creating an online repository for prior art in seeds. And if anyone listening is interested in staying updated about this and other projects from the Center for Agriculture and Food Systems, you can follow us at @CAFSCenter on Instagram, Twitter or Facebook. You can also visit vermontlaw.edu/cafs or you can find links to the resources I've mentioned on the Hothouse Earth Resources page.
Jeannie: [00:23:48] We'd also like to thank our production team here at the Environmental Law Center, Director Jennifer Rushlow, associate director Anne Linnehan, and editor Emily Potts. If you enjoyed this episode of House Earth, subscribe wherever you get your podcasts.