RURAL ROUTES/Margot Ford McMillen

Patenting Plants is Nuts

Our United States Supreme Court, the highest court in the land, has made mistakes, reminding us that, despite the robes, they put their pants on one leg at a time. Their decisions, based on legal precedents, are often capricious and unreasonable because the precedents are capricious and unreasonable. Consider Minor v. Happersett, 1875, when the court ruled that women could be citizens, but they couldn’t vote. Overturned by a constitutional amendment in 1919. Or Plessy v. Ferguson, 1896, when the court ruled that separate but equal facilities were, well, equal but separate. Overturned by a court’s reinterpretation the Constitution in 1954.

Then there’s J.E.M. Ag Supply, Inc. v. Pioneer Hi-Bred International, Inc., the 2001 case when the court ruled that “sexually reproducing plants” are patentable and the patents move through the generations, just as if the patent holders invented each new generation. Ridiculous, right?

While you may have thought that would only wreak havoc on agriculture, it was only a matter of time, after that ruling, that the giant ag businesses — Monsanto and Dupont of the US, Syngenta of Switzerland, BASF and Bayer of Germany, moved to patent wild plants used for herbal teas and foraged foods.

Now, Nestle has gotten into the act with a patent claim over Nigella Sativa, a pretty Asian wildflower that reproduces by seeds, spreads like crazy and provides a popular groundcover for American gardens. Turns out that this “fennel flower” is also a cure-all remedy, well-known in the Middle East and Asia.

In a strategy used by scientists (and explorers) for generations, Nestle scientists have claimed to “discover” nigella’s properties. Modern empires are built when scientific papers are published, and that’s how the claim was staked. The benefits might become extremely profitable, because they include the ability to help people with food allergies, such as the burgeoning population that has become allergic to modern wheat.

The wheat allergy is described as turning the stomach against itself so that the eater is subjected to painful spasms that can lead to hospitalization, but rather than figure out what in wheat has changed, Nestle will patent the possible “cure” and peddle it to desperate people in our bread-and-cookie-consuming culture.

The news about Nestle’s potential cash cow came to me in an email the morning after I had served a batch of weed soup for my college gourmet club — chickweed, dandelions, chives — and served it up to rave reviews. Foraging, I told them, is going to be essential for the next generation of locavores. I was sad that I hadn’t had time to hunt for morels to make the message even more clear. The truth is that I already know a group of college kids and recent underemployed grads foraging to make ends meet and there will be more to come.

Foraged foods are good and also nutritious. Chickweed is a great source of Vitamin C, I’ve been told, and one writer says dandelions are “a great source of calcium, potassium, iron and manganese ... replete with vitamins A, C, E, K, Niacin and Riboflavin ... Chock full of beta-carotene. The lecithin in its golden top detoxifies the liver.” Maybe that’s why the old-timers always stoked up on greens in the spring time. They boiled poke sprouts and lamb’s quarters, tossed clover and violets into the salad and fried all sorts of leaves in bacon grease. That knowledge — of how to use the greens, where to find them, when to harvest — is almost gone, but the next generation is trying to reclaim it.

My young friends have cooked up wild greens, mushrooms and even road kill. One shared a piece of barbecued coyote with me — it was delicious. So, the news from Nestle, while not surprising, could mean patents for lots of wild foods, making foraging like theft if you base the decision on established laws that protect patents. It could spell the end to a way for the next generation to get nutritious foods into their diet.

I started this column with a list of bad decisions by the Supreme Court, and there are plenty more examples. Dred Scott v. Sandford took a civil war to settle. Pace v. Alabama, banning interracial marriage, was overturned during a national movement to guarantee civil rights to African Americans in 1967.

Most of the progress toward freedom has come after decades of citizen action. Generations after Virginia Minor was refused the vote, women had agitated enough that the general population realized that discrimination was unfair and, actually ridiculous. The same has happened with discrimination based on race and sexual preference. Patenting plants, wild plants, common plants in the ecosystem, is an equally ridiculous decision that will take decades of new case law or a Constitutional Amendment to untangle, but it will be decided by consumers saying, “This is nuts.”

It’s spring! Let the foraging begin.

Margot Ford McMillen farms and teaches English at a college in Fulton, Mo. She blogs at Email:

From The Progressive Populist, June 1, 2013

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