Should We Patent Plants?

On Oct. 3, the US Supreme Court heard arguments in a case that could change the face of agriculture worldwide. In this David-and-Goliath battle, Pioneer (now owned by DuPont) is charging JEM Ag Supply, a small Iowa seed and agricultural supply company, with unauthorized resale of the giant's patented seed corn. In its defense, the smaller company claims the patents were invalid as a matter of law on grounds the US Congress never intended "products of nature" to be patented.

Three times over the years -- in 1930, 1968 and 1970 -- Congress specifically rejected the application of patents to new varieties of plants grown from seed. Then, in 1985, the US Patent and Trademark Office went ahead and granted full patent rights to plants grown from seed. Since then, companies holding plant patents have exercised their monopoly rights to build an immensely valuable portfolio of proprietary seed. Those able to afford it have gobbled up smaller companies, at times just to acquire access to the restricted germplasm. Of 1,500 seed companies in the world in 1995, 24 held a combined market share of more than 50%. By 2000, after years of merger-mania, the top ten controlled 33% of the $23 billion seed market and 90% of the $31 billion agrichemical market.

The Supreme Court's decision will rebound worldwide. Every country in the world that depends upon agriculture for its economic base -- and that includes the US as well as most Third World nations -- would benefit from a decision that disallows the patenting of plants. Such a decision would force a public debate about whether patents should be given for any kind of life form. Such a decision would be consistent with the United Nations Universal Declaration of Human Rights, and recent resolutions of a UN Sub-Commission on Human Rights finding an "actual or potential conflict" between the World Trade Organization's intellectual property rights agreement and the rights to self-determination, food and health.

One of the least understood injustices arising from globalization is the extension of the United States' patent system to other countries via the World Trade Organization (WTO). The WTO's Trade Related Intellectual Property Rights (TRIPs) agreement privatizes the ownership of plants and seed, giving the agri-chemical and pharmaceutical industries monopoly rights over what nature distributes widely and freely.

As luminaries ranging from Thomas Jefferson to Lester Thurow have noted, intellectual property rights are intended to balance the interests of private inventors and society as a whole. The public needs access to useful innovations, while the inventors need an incentive to innovate. Unfortunately, today's patent system is not helping to balance the industry's gain with public welfare. To the contrary, more and more researchers are reporting that the drive to be first in line at the patent office means their bosses tell them NOT to publish their work, and NOT to confer with fellow scientists trying to cure the same horrific disease or to breed a more drought-resistant variety of wheat. Instead, if they keep their experimental data out of the public record, their company (or university) is more likely to get the full windfall when the research finally pays off.

Companies are now patenting plants, animals and even bacteria at a fever pitch. Thanks to industry lobbying during WTO negotiations, this highly profitable scheme to privatize plants and medicines now applies to most of the rest of the world. Not only does it ensure sick people and farmers pay top dollar for the opportunity to buy proprietary drugs and seeds, it also sends billions of dollars from the developing world to wherever the pharma-agri-chemical companies do their banking. In the case of basmati rice, for example, India stands to lose $500 million per year in exports due to the US Patent and Trademark Office's decision that a Texas company can retain patent rights to three basmati lines -- bred outside India. Not only is the Indian economy a loser, but so too are India's basmati farmers.

All over the world, farmers and farm organizations are seeking to reverse TRIPs and other free trade deals with TRIPs provisions in them -- like the proposed Free Trade Area of the Americas. At the WTO, African governments have proposed amending TRIPs to ban patents on all forms of life.

Perhaps Jonas Salk, inventor of the polio vaccine, understood the conflict between intellectual property rights and the public good best. When asked by television commentator Edward R. Murrow decades ago who would control this new pharmaceutical, Dr. Salk replied, "Well, the people, I would say. There is no patent. Could you patent the sun?"

Kristin Dawkins is vice president of International Programs at the Institute for Agriculture and Trade Policy, 2105 First Avenue S., Minneapolis, MN 55404. She also wrote the book Gene Wars.

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