Last summer, my dad bought some "Carefree Wonder" roses from the nursery. They sported a tag reading "Asexual reproduction of this patented plant without license is prohibited."
"What the heck does that mean?" he asked. Read on, Dad.
It's garden-planning time, and the mailboxes are crammed with seed catalogs offering not only the old standards but new, scrumptious, showy, splashy, colorful hybrids in illustrations to make you reach for your plastic card. And, after a few years, when they're big enough to divide and trade with your neighbors -- well, the Supreme Court has something to say about that.
On Dec. 10, 2001, the Supreme Court ruled 6-2 in the case of J.E.M. AG Supply v. Pioneer Hi-Bred Int'l that plants -- any plants -- can be patented. My dad's "Carefree Wonder" red roses don't look any different than the sprawling "Medillund" red roses I bought five years ago. Nothing on the tag says that the bushes have been specially engineered, radiated, grafted or extruded from some machine. In fact, the only difference may be that somebody claimed them under "US Pl. Patent No. 7793."
The Supreme Court ruling, written by Clarence Thomas, protects seed companies rich enough to pay for patents. Before the ruling, the status of plant patents was undetermined. Patents, after all, were designed to protect inventions -- human creativity -- not to claim living things.
The "US Pl. Patent" tag on Dad's rose bushes had little meaning until Dec. 10. Before the ruling, rights to unique plants came under a different law -- the Plant Variety Protection Act or PVPA. That 1970 law gave developers of unique seeds -- genetically-altered seeds -- the right to claim royalties when a farmer bought them. It also had protection for seed savers.
Compare the situation to a song writer claiming royalties when an artist records his music. Some songs -- camp songs -- are passed from generation to generation. They were in "public domain," that is, free to you and me whenever we burst into "Happy Birthday to You" or "John Jacob Jingleheimer Smith." Only the truly greedy would claim one of these old tunes. But the truly greedy did claim them, putting copyrights on them and forcing campers to write new songbooks.
In the same way, seeds have passed from generation to generation without anybody "owning" their genes. For 10,000 years, since the dawn of agriculture, farmers have saved the best seeds each year to plant next season. "But," seed companies said when they invented genetically-altered seeds, "if a farmer saved some of his crop of genetically-altered seeds to plant them, he has stolen our genes and he owes the seed company royalties."
But what if a genetically-altered crop got mixed with a regular one? In one case, a Canadian farmer saved old-fashioned canola seeds year after year. Let's call his canola the "A" strain. One year, a neighbor's biotech canola -- let's call it "B" -- fertilized "A," creating "AB." No more "A" strain, lovingly cultivated for years. And, the "B" genes were patented by a big company.
The big company wanted royalties, and they sued, claiming gene theft.
Most reasonable people would agree that if someone gives you something you don't want, and then sues you for theft, you're not guilty. But, unbelievable as it may seem, the farmer lost the case.
In that particular case, the biotech seed wouldn't have appeared on the planet without the scientist in his lab. But the Supreme Court ruling upholds the right for greedy people to patent seeds that farmers have raised for centuries.
In 1997, RiceTec, Inc. claimed Basmati rice, a rice that had been treasured by Indian growers for centuries. Traditional Basmati rice has a "perfumed" fragrance that might remind you of popcorn or flowers. Now patented, the Texas company can claim royalties from Indian farmers who developed the strains. In the words of Vandana Shiva, "The US Patent Office has protected not invention but biopiracy."
This is the way the life sciences business is going. First, the patent-seekers create genetically-modified plants not found in nature and applied for patents based on the scientist's creativity and the uniqueness of the plants. Next, the patent-seekers claimed discovery of unusual plant qualities in existing plants and claimed patents on that basis.
This discussion may strike non-farmers as unimportant, but seeds are the basis for plants. Plants are the basis for food, and many medicines, from cortisone to undiscovered cures for cancer. The implications reach into every aspect of horticulture from farming to pharmaceuticals to roadside landscaping to home gardening. With these laws, the most innocent wildflower bouquet will contain genes owned by a multinational corporation.
It may seem like a dark, sci-fi scenario to believe that someone's going to check on my dad's rose bush, but in 1998 Monsanto sent Pinkerton detectives into the countryside to ferret out farmers saving seeds with the Roundup-Ready patent.
The Roundup-Ready patent, designed to make crops resistant to a drenching with Monsanto's Roundup herbicide, was supposed to help farmers raise more bushels per acre with less chemical applications. Didn't work, but it sold a lot of Roundup. When it found farmers that saved the seeds, Monsanto fined them up to $35,000.
Remember the camp songs? In the mid-1990s, when ASCAP -- the American Society of Composers and Performers -- was raging at its most incorrigible, a member dropped in on a nursing home near here and caught a little old lady playing "Redwing" on the piano for the residents. "Redwing," for those unfamiliar with the tune, is a staple for square dances and old-time jam sessions. Anyone who plays old-time music knows the tune, they've picked it up "by ear," but almost nobody could tell you where it came from.
The ASCAP member stopped the music and told the piano player she owed him money for the performance. She was, naturally, frightened and intimidated. It took a long time and a lot of support from her friends before she played the piano again. Since those dark ages, ASCAP has been subdued. Thank you, Napster.
The Supreme Court wanted to make some history, and they look forward to a world where everything has a price. In Washington, D.C., every grassy patch is planted with carefully chosen designer plants, ripped up and replaced as they pass their prime. Visiting Washington a few years ago, I took notes on the flashy combinations.
Soon, the perfection became tedious, exhausting. I threw my notes in the hotel waste basket. Landing in Kansas City, at the sight of gangly yellow goldenrod and sky-blue chicory on the weedy roadside, I was unexpectedly moved to tears.
Goldenrod and chicory pop up in places even when the land is impossibly poor. In a world where little old ladies are threatened for playing piano tunes learned in childhood, it isn't hard to imagine a corporation claiming these wild pioneers and charging the state when they bloom on the roadside.
And how about the seeds and starts you share with your neighbors?
In the case of a "carefree" rose bush like my dad's, the right conditions of weather and soil cause untrimmed branches to sprout into new bushes when they touch the ground. That's "asexual" reproduction, and as long as there have been gardens, gardeners have dug the sprouts and given them away.
We can have a world with "public domain" plants, but we need laws to protect them. Alan Guebert, an influential ag columnist, calls for strengthening the PVPA, keeping the right to save seeds. Today, call your congressman's agriculture liaison and say that you're disgusted with the Supreme Court's Dec. 10 opinion.
Let's make some history.
Margot Ford McMillen farms and teaches English at a college in Fulton, Mo. Email: firstname.lastname@example.org. See the opinion in J.E.M. Ag Supply, Inc. v. Pioneer H-Bred at www.supremecourtus.gov/opinions/01pdf/99-1996.pdf