From VQR:
Revolutionizing American agribusiness from the ground up, one seed at a time.
From a distance, Jim Myers looks like an ordinary farmer. Most autumn
mornings, he stands thigh-deep in a field of wet broccoli, beheading
each plant with a single, sure swipe of his harvest knife. But under his
waders are office clothes, and on his wrist is an oversized digital
watch with a push-button calculator on its face. As his hand cuts, his
eyes record data: stalk length and floret shape, the purple hue of
perfect heads and the silver specks that foretell rot. At day’s end his
broccoli goes to the food bank or the compost bin—it doesn’t really
matter. He’s there to harvest information.
Myers is a plant breeder and professor of genetics at Oregon State
University. The broccoli in his field has a long and bitter story, which
he told me last September at the university’s research farm. We sat at a
picnic table under a plum tree that had dropped ripe fruit everywhere;
around our feet, the little purple corpses hummed with wasps that had
crawled inside to gorge on sweet flesh. Myers has dark hair and dark
eyes that are often set behind tinted glasses. In public, he rarely
registers enough emotion to move the thick mustache framing his mouth.
Still, as he talked about the broccoli his voice buckled, and behind
those shadowy lenses his eyes looked hard and tense.
In 1966, a breeder named Jim Baggett—Myers’s predecessor at Oregon
State—set out to breed a broccoli with an “exserted” head, which meant
that instead of nestling in the leaves the crown would protrude on a
long stalk, making harvest easier. The method he used was basic plant
breeding: Mate one broccoli with another, identify the best offspring,
and save their seed for the next season. Repeated over decades by
Baggett and then Myers, this process produced the broccoli in the field
that day. The heads were so nicely exserted, sparrows used them as
a perch.
Most classical plant breeders will tell you that their work is
inherently collaborative—the more people involved, the better. Baggett
had used versions of another broccoli called Waltham, released by the
University of Massachusetts in the 1950s, as part of the foundation for
his original exserted-head lines. Hoping to advance its evolution by
letting others work on it, he and Myers shared their germplasm (an
industry term for seed) with breeders throughout the United States. One
recipient was the broccoli division of Royal Sluis, a Dutch company that
had a research farm in Salinas, California. Through the channels of
corporate consolidation, that germplasm ended up with the world’s
largest vegetable-seed company, Seminis, which in 2005 was bought by the
world’s largest seed company, Monsanto. In 2011, Seminis was granted US
Patent 8,030,549—“Broccoli adapted for ease of harvest”—whose basic
identifying characteristic was an exserted head. More than a third of
the original plant material behind the invention was germplasm that
Baggett had shared in 1983.
As Seminis began previewing its Easy Harvest broccoli to the farm
press in 2011, the company’s lawyers began calling Myers, requesting
more samples of broccoli seed. The patent they held covered only a few
specific varieties that the company had bred, but now they were applying
to patent the trait itself—essentially, any sizeable broccoli
with an exserted head. They needed the Oregon State plants for
comparison to prove their invention was, in patent language,
truly “novel.”
Last August, the examiner seemed dubious, writing, “Applicant is in
possession of a narrow invention limited to the deposited lines;
however, they are claiming any and every broccoli plant having the
claimed characteristics.” The application was given a
“Final Rejection.”
And yet, as Myers told me at the picnic table in September, “That’s
not necessarily final.” Just before Thanksgiving, Seminis appealed,
beginning a process that may last for years. As one
intellectual-property manager who helps write patents for the University
of Wisconsin told me, some examiners simply “cave and grant the broader
claims as they get worn down by the attorneys’ arguments.” If Seminis
receives the patent, their claim would likely encompass the plants
growing in Myers’s plots at Oregon State, meaning they could sue him
for infringement.
Myers is not alone in this predicament. Irwin Goldman, a professor at
the University of Wisconsin, had been developing a red carrot for
fifteen years when, in 2013, he learned that Seminis had an application
pending for “carrots having increased lycopene content”—in other words,
very red carrots. Likewise, Frank Morton, a small-scale, independent
plant breeder in Oregon, had finally achieved a lettuce that is red all
the way to its core, only to find that the Dutch seed company Rjik Zwaan
had received a patent on that very trait. Their cases are just some
of many.
When Myers talks about the issue, his frustration seems to turn him
inward toward greater silence. But Morton is considerably less reserved.
“It rubs me the wrong way that works of nature can be claimed as the
works of individuals,” he said, his voice growing louder and louder. “To
me, it’s like getting a patent on an eighteen-wheeler when all you did
was add a chrome lug nut.”
Myers contends that, when applied to plants, patents are stifling.
They discourage sharing, and sharing is the foundation of successful
breeding. That’s because his work is essentially just assisting natural
evolution: He mates one plant with another, which in turn makes new
combinations of genes from which better plants are selected. The more
plants there are to mix, the more combinations are made, and the more
opportunities there are to create better plants. Even some breeders who
work for the companies that are doing the patenting still believe
in—indeed, long for—the ability to exchange seed.
“It’s this collective sharing of material that improves the whole
crop over time,” Myers told me. “If you’re not exchanging germplasm,
you’re cutting your own throat.”
If all of this seems like the concern of a specialized few, consider
that plant breeders shape nearly every food we eat, whether a tomato
from the backyard or the corn in the syrup in a Coke. Because of
intellectual-property restrictions, their work increasingly takes place
in genetic isolation and is less dynamic as a result. In the short term,
that can mean fewer types of tomatoes to plant in the garden, or fewer
choices for farmers and, by extension, consumers. In the long term, it
could hinder the very resilience of agriculture itself. Having access to
a large genetic pool is critical for breeders who are adapting crops to
the challenges of climate change. Every time intellectual-property
protections fence off more germplasm, that gene pool shrinks....MORE
