2012 22.3 Remembering the ‘People’s Department’
A look at genetic resources, intellectual property rights, and public interest
This year marks the 150th anniversary of two laws that significantly transformed U.S. agriculture. The first law launched the U.S. Department of Agriculture, which President Abraham Lincoln, in his last address to Congress, called “the people’s department.” He placed the farmer’s interest above all others. The second law, the Morrill Act, established our land grant university system, intended “to teach such branches of learning as are related to agriculture.”
The new infrastructure established through these laws aimed to expand U.S. agriculture for the sake of prosperity and security – to further research, education, and innovation, and make advancements accessible to all.
In important ways these laws were about sowing seeds, literally and figuratively. But today, their intent has been undermined by policies and practices that collectively leave farmers with less access to what was once a public resource.
GERMPLASM TO THE PEOPLE
A core function of the Department of Agriculture when it was formed in 1862 was the collection and distribution of germplasm. Concerted efforts to introduce new plants to the U.S. began centuries before, but for much of the nineteenth century, before USDA was established, the Patent Office fervently carried out these activities, mailing millions of seed packages to farmers across the nation. (There is great irony in this fact, as you’ll read.)
By the end of the nineteenth century, a third of USDA’s budget was allocated for germplasm collection and distribution. The department encouraged farmers to trial any crop that seemed economically important to U.S. agriculture, and continued the practice of distributing seed free of charge. And, thanks to the Morrill Act, states had a place in the plant sciences. Land grants largely focused on collecting germplasm and conducting research in areas that were not profitable to burgeoning private ventures.
Picture it: USDA freely distributing seed to farmers (at the time, half the population) not so much as a commodity but as an essential natural resource best managed in the hands of the people. The department understood that the nation’s growing (and now rich) crop diversity was a product of farmers serving as the nation’s first plant breeders. Their labor and land – and the knowledge base they built through experimenting, screening, and selecting – effectively adapted exotic plants to regional agricultural economies.
Meanwhile, land grant universities’ regional breeding programs gained momentum, providing new seed varieties to farmers. These public programs advanced U.S. agriculture by increasing yields and developing the strongest base of scientific knowledge in the best research facilities. Private companies emerged, but at first their products were inferior in quality and quantity.
INTELLECTUAL PROPERTY RIGHTS
The private seed trade expanded, and organized to confront their most formidable competitor: the government. After years of lobbying against USDA’s free seed distribution, the seed trade convinced Congress to shut it down in 1924. Over the decades that followed, farmers and public breeders saw the number of independent seed companies grow.
The political climate was such that lawmakers were facing heightened pressure throughout the twentieth century to create policies that protected investments in research and development. Intellectual property rights had been discussed for decades, and the first law to provide breeders some protection passed in 1930. Importantly, the Plant Patent Act excluded sexually reproducing plants as patentable subject matter, and only applied to asexual reproduction, such as grafting and cuttings.
In fact, Congress long argued that sexually reproducing plants should not be awarded utility patents – “patents for invention” – for fear of curtailing innovation, threatening the free exchange of genetic resources, and increasing market concentration.
But the seed trade and plant breeders were eventually successful in convincing Congress that more protection was warranted. This came in the form of a “patent-like” protection under the Plant Variety Protection Act (PVPA) of 1970. The law represented a compromise: Breeders had the exclusive right to propagate and market the variety for 20 years, but the law provided important exemptions: 1) other plant breeders can use protected varieties for research, and 2) farmers may save seed from protected varieties to replant on their own farm.
Although many breeders still use PVP protections today, Congress’ concerns regarding intellectual property and plants have been realized – but not because of this law. At the turn of the twenty-first century, the Supreme Court upheld a case where the Patent and Trademark Office (PTO) awarded the first utility patent on a life form. (The PTO had originally refused to award this patent, but the U.S. Board of Patent Appeals and Interferences disagreed, and granted it.)
Once the provider of free seed, the modern day PTO is responsible for setting a precedent that forever changed farmers’ access to, and relationship with, seed.
Owners of utility patents have far-reaching control over access and use of their protected products. While the PVPA has exemptions for researchers and farmers, utility patents can be legally enforced to forbid access to protected genetic material for purposes of innovation as well as on-farm seed saving. Patents therefore remove valuable genetic material from the pool of resources that breeders rely on for improving agricultural crops. What access breeders do have often hinges on restrictive licensing agreements.
Furthermore, patent owners can deny licensing agreements for strategic purposes, in particular, to prevent competition. This in turn denies breeders from improving and expanding the genetic base on which agriculture depends.
CONCENTRATION & ACCESS TO MATERIALS
In the seed sector, utility patents quickly led to increased concentration of financial and genetic resources. Transnational chemical and biotechnology firms entered the seed industry to capitalize on the new intellectual property playing field. Their expansion of agricultural biotechnology, and the profits from their patented products, led to dozens of unchecked acquisitions and mergers.
The extent of market concentration is most obvious when looking at biotechnology traits, namely Roundup Ready and Bt. Monsanto’s genetically engineered (GE) traits are planted to nearly all U.S. corn, cotton, soybean, and sugar beet acreage.
Today, many smaller companies cannot compete with large firms that have patented much of the genetic resource base and sell mostly patented products. Licensing genetics from these firms is costly, creating a barrier to new private research firms. At least 200 independent seed companies have been lost in the last fifteen years alone, including companies interested in providing for the organic and conventional (non-GE) seed market. The result has been less competition and choice in the marketplace, and a lack of infrastructure to provide for the diverse and regional needs of farmers.
Because public plant breeding programs have come to rely on industry funding, large private firms at times dictate research goals and create barriers to answering important questions about their products. In other words, industry has restricted public analysis of new seed products already in or entering the marketplace.
In 2009, 26 university scientists submitted a joint complaint to the Environmental Protection Agency (EPA) with this concern, writing: “No truly independent research can be legally conducted on many critical questions.” These scientists, most of whom remained anonymous, pointed to situations where biotechnology companies are keeping universities from fully researching the effectiveness and environmental impact of the industry’s genetically engineered crops.
Nature Biotechnology reported ten years earlier that “Nearly 50 percent of public plant breeders have had difficulties obtaining genetic stocks from companies.” Not only do firms deny access to varieties, they often insist on reviewing scientific findings before they are published. The editors of Scientific American have written that claims touted by biotechnology companies have little independent research backing them up. “Unfortunately, it is impossible to verify that genetically modified crops perform as advertised,” the article reads. “That is because agritech companies have given themselves veto power over the work of independent researchers.”
PATENTING PUBLIC RESEARCH
One incentive to patent research was the Bayh-Dole Act of 1980. This law allowed universities, for the first time, to patent products that result from publicly funded research. Universities had previously regarded patents as at odds with their nonprofit educational mission, but following Bayh-Dole, they began to earn royalties in exchange for licensing their inventions to private companies. Industry funding for academic research surged after Bayh-Dole as public support diminished. Today, private contributions provide nearly a quarter of the funding for agricultural research at land grant universities (see a new report from Food and Water Watch entitled Public Research, Private Gain).
Industry’s funding of public universities may not be something to criticize on its own, especially in light of dwindling public funds, but it’s clear that industry funding can come with strings attached that dictate the terms and direction of research. Crop research in general has narrowed, prioritizing commodities where the most profit can be made.
Private research has also been affected. There is a financial disincentive to seek access to patented material to expand research because of costly royalties and licensing agreements with patent owners, some of which have led to lawsuits. This reality serves as a barrier to new companies entering the plant breeding industry. Furthermore, decreased access to untreated germplasm, especially in parent corn lines, is inhibiting organic and non-GE crop breeding programs.
The biotechnology sector has benefited greatly from Bayh- Dole arrangements. Investments in plant biotechnology research largely focus on crops and traits with the greatest profit potential for large firms as opposed to non-proprietary solutions that benefit the wider public. Uniform seed options have replaced cultivars tailored to specific regions, and many smaller independent companies that stepped up to meet regional demand have been bought out or left the marketplace entirely.
The need for public plant breeding programs to deliver more choice in the form of public cultivars is more important than ever. Yet the culture of shared access to research, education, and innovation on which USDA and the land grant system were founded has in many cases been co-opted by a culture of privatization.
Returning USDA to a true “people’s department” will indeed take a cultural shift.
Farmers and other plant breeders have played crucial roles in building our nation’s germplasm base for modern agriculture to thrive, expand, and meet new agricultural challenges. Saving seed and the free exchange of germplasm is central to this history of innovation and genetic diversity, which takes us back to the beginning.
This doesn’t mean we have to return to the day where all farmers saved seed. But we must be aware that, like our water, air, and soil, seed is a natural resource that requires careful management – especially at the farm level.
Farmers are already responding to concentration by reclaiming their place in healthy seed systems. Take Washington’s own Nash Huber, who realized the importance of on-farm plant breeding and seed production when his favorite carrot variety was discontinued in the late 1990s. Working with our breeders at Organic Seed Alliance (OSA), Nash spent years adapting carrot seed to his local farming system and market niche. He now grows not only carrot seed, but also other vegetable seed crops as part of a participatory plant breeding model – an approach that involves a close collaboration between farmers and researchers.
OSA’s research, education, and advocacy programs aim to establish decentralized, regional seed systems that deliver biologically diverse seed to farmers. Working with farmers and other seed professionals – including six land grant universities – we participate in collaborative breeding networks, such as the Northern Organic Vegetable Improvement Collaborative (NO VIC ) and Carrot Improvement for Organic Agriculture (CIO A), to provide farmers access to shared knowledge and resources.
These farmer-breeder projects are a pro-active response to problems resulting from concentration, and OSA recently published a Participatory Plant Breeding Toolkit to facilitate the development of these on-farm projects. (Find this and other publications on seed production and policy at www.seedalliance.org.)
Make no mistake: land grants continue to play a key role in managing plant genetic resources and breeding new varieties. And more public programs are working to advance much-needed research in organic farming. There is good news in the way of industry contributions as well. Some of these partnerships are groundbreaking.
This year, Clif Bar Family Foundation announced its support of the first fellowships in organic plant breeding ever granted in the U.S. The grants, which are awarded through the foundation’s Seed Matters initiative, fund Ph.D. fellowship students for five years in organic plant breeding at three public land grant universities, including Washington State University. Public plant breeders Stephen Jones and Kevin Murphy are engaged in participatory work with farmers, millers, and bakers to build local grain economies.
Projects like these are vital to the future of seed and food, and in fostering the next generation of plant breeders.
We all have a voice in this discussion. For starters, we must push for adequate funding of land grant projects that deliver regionally adapted public varieties. This is in line with USDA’s mission to provide new and valuable seeds and plants to U.S. farmers.
USDA should also continue an examination of competition problems in the seed industry. In partnership with the Department of Justice, USDA hosted public workshops two years ago across the U.S., attracting thousands of public comments from farmers. The agencies have been silent on seed industry competition concerns ever since. They need to hear about anticompetitive conduct and the consequences of concentration.
To confront patents and the privatization of public research, Congress should establish the PVPA as the sole intellectual property protection for sexually reproducing plants. In so doing, farmers would regain their right to save seed, and breeders would have better access to plant genetics. The Bayh-Dole Act as applied to agricultural innovations should also be reviewed and reformed to prohibit seed patenting and exclusive licenses relating to products developed through publicly funded research.
Part of holding our decision makers accountable is asking them to honor the founding mission of our public agricultural institutions. Let’s re-commit to those pieces that keep us on the path to a healthy, prosperous, and secure food future. The interest of farmers can and should align with the greater public good.
Tags: Biotechnology, Department of Agriculture, Germplasm, History, Land Grant, Plant Variety Protection Act, Seed Breeding, Seed Distrobution, Seed Trade, Seeds