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Genetic patents on seeds refer to laws that grant private ownership of seed varieties. With recent developments in biotechnology, patent protection has been extended to include particular plant characteristics. Genetic patents have a long historical trajectory. In the United States, decreasing agricultural productivity in the early 20th century led to a series of official mechanisms establishing state support for basic agricultural research and laws to promote the interest of the agricultural seed industry. This included the Plant Patent Act of 1930, covering plant varieties that could be commercially reproduced asexually through techniques like budding, grafting, and cutting. From the 1930s on, there was increasing pressure from the agricultural industry to put stronger official laws in place. This culminated in the Plant Variety Protection Act (PVPA) in 1970, which granted proprietary rights to novel, sexually reproduced seed plants.
A decade later, key government decisions provided the legal architecture for the emergence of the agricultural biotechnology industry. These included the 1980 Supreme Court Chakrabarty decision, which granted patent protection for a microbe engineered to degrade crude oil and the 1985 Hibberd case, which established the patenting of genetically engineered plants. With the rapid development of biotechnology in the United States that followed, companies like Monsanto used the legal protection of patents to make increasingly broader ownership claims over genetically modified organisms (GMOs). To do so, they focused on securing early patents on key commercial crops and using these patents for leverage in licensing agreements.
Although adopting stricter regulations over biotechnology, western European countries were historically the first to coordinate regional patent efforts. In 1961 they established the Union for the Protection of New Varieties (UPOV), creating a framework for international plant-patent protection. UPOV has undergone three revisions (1972, 1978, and 1991). The United States joined in 1981 and from the mid1990s through the present, membership has expanded to 61 countries. This is largely due to the General Agreement on Trade Related Intellectual Property Rights (TRIPS), created in 1994 within the World Trade Organization (WTO), requiring countries to adopt intellectual property rights as part of free trade negotiations.
Nevertheless, the patenting of seeds is controversial for numerous reasons. First, because much plant diversity originates in the global south, there are heated debates over foreign access to and the sharing of the economic benefits arising from genetic patenting. Critics assert that biotechnology companies’ use of genetic patents to reap the profits from plants modified over hundreds of years with traditional breeding methods is a form of “biopiracy.” Second, many fear that the enforcement of seed patents in the global South along with the continued opening of markets to subsidized agricultural imports from industrialized countries would displace subsistence farmers for industrial agricultural production. These concerns have been expressed in the International Treaty on Plant Genetic Resources for Food and Agriculture, approved at the 2001 meeting of the Food and Agricultural Association of the United Nations (FAO). Based on the Convention on Biological Diversity, this international seed treaty has the goals of protecting local farmers’ rights of seed saving and sharing and ensuring that the economic benefits of patents reach local communities. Although the treaty came into force in June 2004, many countries, including the United States, have yet to ratify it. Critics fear the goals of the treaty will largely be subsumed under the mandate of the WTO.
Another controversial aspect of genetic patents on seeds are recent concerns over the legal implications of the cross-pollination of genetically modified plants with native varieties. North American farmers have already been prosecuted for patent infringement after genetically modified plants had unknowingly spread to their fields. The cross-pollination of genetically modified corn with native seedstocks in Mexico has heightened concerns that this genetic contamination, along with strict patent enforcement, could be disastrous for small-scale producers throughout the developing world. Industry efforts to prevent the transfer of genetically modified traits to wild plants and unmodified crops have resulted in even greater concerns over a method introducing a “terminator” gene into crops that eliminates seed fertility. Although touted as a means to address the problems of seed contamination, this gene could also spread via pollen, eventually destroying native seedstocks and wild plants. In this sense, the legal mechanism of patenting along with terminator technology could degrade the base of genetic material necessary for continued agricultural innovation.
- Martha Crouch, “From Golden Rice to Terminator Technology: Agricultural Biotechnology Will Not Feed the World or Save the Environment,” in Brian Tokar, , Redesigning Life? The Worldwide Challenge to Genetic Engineering (Zed Books, 2002);
- Jack Kloppenburg. First the Seed: The Political Economy of Plant Biotechnology, 1492-2000 (Cambridge University Press 1988);
- Vandana Shiva, Protect or Plunder? Understanding Intellectual Property Rights. (Zed Books, 2002).