Seed patent primer: Is the use of GMOs preventing farmers from reusing their seeds?

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Anti-GMO campaigners often attack Monsanto and other large agricultural companies for suing farmers who illegally save their seeds and replant them. But most non-GMO seeds as well as genetically modified versions are patent protected for companies to recoup their investment costs. If these intellectual protection rights were removed, would farmers go back to saving seeds and replanting them in subsequent years?

In some cases, yes. Some crops are able to produce viable seed that can be saved and replanted to yield offspring that perform similarly to their parents. But for other crops, most notably hybrid corn, no. In the case of crops that have been improved by hybridization in conventional breeding, saving seeds for replanting doesn’t make sense as any saved seed will not perform as well as their parents.

Let’s take a look at the process of hybridization in conventional breeding. Hybridization is when breeders take two distinct, but related plants and mate them, commonly by pollinating the plants by hand. For example, a breeder could cross a big corn plant that is susceptible to disease with another that is small but more resistant to disease to produce a hybrid plant that is both big and resistant to disease. This resulting hybrid plant is called F1 hybrid (first-filial generation).

F1 hybrids have the advantage of a phenomenon known as hybrid vigor. Charles Darwin conducted experiments with corn, reported in 1876, that involved crossing a corn plant with itself (in-breeding) and different corn plants together (hybridizing) over several generations. His results: the hybrids were bigger, more robust, and generally outperformed the inbreds. In Darwin’s terms, the hybrids had “innate constitutional vigor.” The inbreds, however, suffered from “inbreeding depression.”

But the inbreds are an important component of the hybrid corn that we know today. F1 hybrid corn comes from crossing pure inbred corn plants. When breeders repeatedly force a specific corn plant to self-pollinate and in-breed, subsequent generations become more and more similar to the parent. An inbred plant is considered “pure” when its offspring is almost identical to itself, usually after seven to ten continuous generations of self-pollination. In 1908, scientists George Shull and Edward East, working independently, crossed two inbred corn plants and produced much more superior hybrids. The resulting plants had good vigor, greater yields, were more uniform, robust and predictable.

Here’s the catch: if F1 hybrid seeds are saved and planted the next year, the farmer would not get the same crop. That is because the so-called F2 generation, offspring of the F1 hybrids, typically display an unpredictable mixture of characteristics from their parents instead of being similar. The advantage of hybrid vigor in F1 hybrids can only be achieved in the first generation offspring of inbred varieties. So to receive the benefits of hybrid seeds, farmers would have to buy them each year. The breeder simply had had to keep the identities of the hybrid’s parents a secret.

Before the advent of intellectual protection rights for plants and genetically modified crops, farmers chose to buy hybrid corn year after year, because they performed better consistently. The first U.S. Plant Patent Act in 1930 established patent rights for new varieties of asexually propagated plants and seed-propagated plants were not protected until 1970; F1 hybrids were only added to the list of patentable plants in 1994. The first commercial sales of hybrid corn began in 1924 and in the 1930s, the advantage of hybrid corn became clear when they resisted and survived severe drought, as compared to the crops from saved seed. By 1965, 95 percent of the corn planted in the U.S. was F1 hybrids. Other crops have also been successfully hybridized, including sorghum, sunflower, broccoli, tomatoes and onions.

So, the claim that farmers would be able to save their seeds if only the patent rights of seed companies were curtailed and GM seeds were removed from the marketplace is not completely true.

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  • Schratboy

    It’s a licensing issue. Matters of intellectual property provide patent owners with legal recourse to sue individuals whom they believe are “using their patented stuffs” without permission. GMO ag companies usually only go after those cases where there’s monetary justification to do so, or via a publicity campaign that reinforces the patented GMO licensing scheme.

    • Westcoastsyrinx

      It would be a matter of using the material for financial gain. If you are doing that, based upon someone else’s work, they do have a right to a portion of the benefits, don’t you think? I am appalled to see this legal, common sense practice being used to sway the ignorant peope who don’t understand. It was what first turned me off Vananda Shiva when I saw her using this to sway her arguments. Disgraceful if you ask me. And, it is possible to use these seeds for personal use with no recourse for the supplying company.

  • David Smith

    “But most non-GMO seeds as well as genetically modified versions are patent protected for companies to recoup their investment costs.”

    This is blatantly misleading. non-GM seeds are registered under breeders rights according to the UPOV convention. Under the UPOV convention farmers may save seed for propagation. GM seed is patented and may not be retained for propagation.

    • Dubhslaine

      The irony is that you are saying that the above quote is blatantly misleading when you go on to be blatantly misleading yourself. UPOV does not allow for commercial growers to save seed or propagate plants without prior permission from the breeder under the 1978 convention. The 1991 convention does allow for an exception, but in almost all cases the exception is for subsistence farmers. http://www.upov.int/about/en/faq.html#Q23
      The big difference between UPOV and plant patents is that UPOV allows for researchers and other breeders to freely use the material for research purposes and breeding without having to pay royalties. http://www.upov.int/about/en/faq.html#Q10
      And as for what get registered as what, non-GMO seeds can and are patented and GMOs can have UPOV protection. http://www.upov.int/about/en/faq.html#Q20

      • rick

        Thanks for the clarification. A lot of simplistic understandings of intellectual property in plant genetics. Also, why is it an assumption farmers inherently exploited by intellectual property protections that encourage innovation and free farmers from being limited to a generic genetic commons. Farmer behavour in this country and other countrfies has demonstrated time and time again that farmers will select protected seeds if it improves their welfare. Even so, I would support greater public investment in seed varieties devoloped with modern tools and made available under liberal licensure even to smallhold and subsistence farmers.

        • agliterate

          Our farmers choose GE seeds because of less pesticides and significantly higher yields, with less compacting of the soil and ability to do no-till agriculture (much better for water retention, and for the environment). Our farmers are smart, and care about their land.

          • Frank Jaeger

            Their subsidised so there’s more profits. If it was about the land they would be organic.

          • agliterate

            Actually, Frank, not true in my state; they are not subsidized. There are more profits for them by using gmo seeds; that’s why they buy them. Even tho gmo seeds are more expensive. Also, they know it IS about the land; they use less toxic pesticides, and no-till, and less water. So their land IS better off.

          • Frank Jaeger

            The federal government helps farmers by providing financial incentives to adopt conservation practices or invest in projects that improve the environment. Not all GMO crops reduce pesticides, many do increas herbicide use. Sorry my mistak, not all crops are subsidised. It’s no coincidence that three of the most heavily-subsidized crops (corn, soybean, and cotton) are also the three that are most often genetically-modified: nearly 90% for all of them (Growing corn for fuel consumes more fuel than it produces!)

            Modern Farmer magazine discovered that there is a movement among farmers abandoning genetically modified organisms (GMO) because of simple economics.

            “We get the same or better yields, and we save money up front,” crop consultant and farmer Aaron Bloom said of non-GMO seeds

            Modern Farmer magazine discovered that there is a movement among farmers abandoning genetically modified organisms (GMO) because of simple economics.

            “We get the same or better yields, and we save money up front,” crop consultant and farmer Aaron Bloom said of non-GMO seeds.

    • agliterate

      David, you seem to think that only GE seeds are patented … a very simple google search will inform you that many non-GE hybrid seeds, and some organic seeds, are also patented. This is not new, and certainly is not limited to GE seeds.

      • David Gandar

        Good point, although I’m aware of patenting for non-GE seeds & the patenting IP concept, it’s the high-profile cases of patent rights & GMO that gets the headline

        • agliterate

          High-profile, but outside of Percy Schmeiser (who tried to convince the court with a straight face that 90% of his canola was GM because of “pollen drift” — the court saw through that; not possible and they ruled against him), there have been no lawsuits by seed companies for inadvertent pollen drift. And just because an issue repeatedly gets headlines doesn’t mean it’s a big problem; it isn’t. Seeds have been patented (organic and conventional) since 1930.

  • Rork1

    I had an old prof at U Mich, who helped design and analyze experiments to test different F1 corns in split plots in Iowa long ago. In the year starting just after their first F1 tests, they noticed that some local farmers fields had very odd-looking collections of hopeful monsters, probably F2’s from seed they had stolen from the F1 test plot cobs. Hey, the F1’s looked lots better than what they were growing at the time.

  • David Gandar

    I would like to know if farmers are contractually able to use non-GMO seeds and have a choice each season, or are they required to keep planting & buying the GMO seeds?

    • lynneb

      They have a choice, according to everyone I’ve spoken to (farmers and ag researchers both); contracts do not carry over multiple seasons anywhere I’m aware of, although farmers may be able to request it — that I don’t know. I do know, however, that many farmers will buy and plant multiple varieties in the same year, both GMO and non-GMO.

    • Jennie Schmidt
      • David Gandar

        Thanks Jennie for that. In lay researching the field it’s confusing when there’s so much PR campaigning on both sides, and even the fact there are two clearly opposed sides is a concern. Good to hear comments from someone in the business. I’d like to think that the main concern of farmers is growing crops that yield well and also healthy & nutritious.

        • thatfarmgirl

          Your last line hits it spot on.

    • rick

      Here is another take on that question by an Iowa farmer: [https://geneticliteracyproject.org/2014/01/21/view-from-an-iowa-farm-in-choosing-seeds-im-no-pawn-of-monsanto/]

      No seed company contractually obligates a farmer, that season or in any future seasons, to grow a certain type of seed. It is more the other way around, that if a farmer desires to use a certain type of seed the company has available, then the company agrees to provide the seed provided the farmer agrees to certain conditions. One of those restrictions is that the farmer agrees not to keep a portion of the seed for replanting.

      That licensing agreement is often referred to as a “technology use” agreement. One of the commenters below the article I linked to makes a parallel to leasing a vehicle, and that is essentially what is happening, the farmer is leasing the use of a seed technology for a single growing season. When you lease a vehicle, essentially the rental business is allowing you to use a vehicle for a period of time. In exchange for use of the vehicle, you agree to certain conditions — you agree to certain penalties if you use the vehicle improperly, you agree to carry insurance, you agree to maintain the vehicle, you cannot make alterations, you acknowledge that you do not own the vehicle and cannot sell it to someone else, and you agree to return the vehicle at the end of the lease. At the end of the lease, you will have to make a decision whether to lease a new vehicle, buy instead, or do without a vehicle and rely on public transportation. Nothing in or about the lease agreement obligates you to lease your next vehicle from that same company, or even obligates you to lease at all. Nothing says that if I rented a Ford Taurus I am obligated to rent a Ford Taurus next time.

      One can readily understand that there are pros and cons to leasing as opposed to buying a vehicle. Obviously, no one would enter a vehicle rental agreement unless they perceived the advantages outweighed the disadvantages or it was the most logical according to the situation. As Mr. Walton explains in the linked article, there are pros and cons to utilizing ge traits, and whether to utilize a patented seed technology in any given year is subject to a similar rational evaluation. But, no one is obligated to use the technology just as no one is obligated to lease a vehicle.

    • agliterate

      David, of course they have a choice! Also, where I live, they don’t keep planting gmo crops each season; they use agh practices and rotate their crops. They can plant any crop they want. Some farmers rotate between GE and non-GE crops; other farmers rotate between certified organic (for 3 – 5 years) and GE crops (to get rid of the weeds that have developed after 5 years of organic crops and poor weed control).

    • David Gandar

      Thanks for the useful info to the several of you that replied. It almost makes me think there’s a need for a forum website so growers & consumers can understand each other better. There’s so much PR campaigning from both sides of the GMO debate it’s helpful to have conversations as opposed to spin.

      This site is part of the conversation I guess.

      • Matt

        This site is a good source of info on GMOs from a variety of sources:

        http://gmoanswers.com/

        “GMOAnswers.com will solicit feedback from experts across a wide range of disciplines in order to provide consumers with balanced, fact-based responses to their questions. The expert resources we’ve identified include conventional and organic farmers, agribusiness experts, scientists, academics, medical doctors and nutritionists from a wide range of studies.” They also have industry participants.

        • Mlema

          Please be aware that “GMO answers” is a marketing effort from the industry – developed by the global public relations firm Ketchum. The firm worked with The Council for Biotechnology Information, which includes BASF, Bayer CropScience, Dow AgroSciences, DuPont, Monsanto Company and Syngenta.

          Ketchum received a CLIO “short list” mention. (awards for advertising)
          http://finance.yahoo.com/news/ketchum-continues-winning-tradition-clios-130000968.html

          The site will only give you answers that reflect positively on their businesses. It’s NOT a site to learn about biotechnology issues, unless you search out the validity of any given response elsewhere. good luck with that! Most information online is either hopelessly biased towards unscientific “natural” or industry propaganda. I think we really need pure academic sites with unbiased authors free of conflict of interest. I have found ZERO.

  • Pamela Wright

    Nice explanation about hybrid seeds. Thank you.
    Thought you’d like to know, the USDA also published a study which stated within the body that there are muliple rationales for purchasing rather than saving seeds. GM technology and hybrid performance are only two. Others include time, cost, and difficulty involved in not just saving the seed, but test planting, sorting, storing, and maintaining said seed. Many farmers today don’t leave fields fallow between crops but rotate around to different crops so their land is in continuous use. Keeping seed between seasons isn’t always cost effective.

    • rick

      I think people have an understandable perception that saving seed is free and therefore, why would farmers chose to purchase seed at all. If saving seed is free, then there must be some coercion taking place to cause farmers to incur what they see as an unneccesary cost and to be dependent upon acquiring seed each year.

      As you point out, saving seed is actually not free. You pointed out some of the costs and risks the farmer incurs that are transferred to the seed supplier when you purchase seeds — costs incurred to avoid spoilage, insects, etc that can degrade quality, reduce germination rates and infield performance after planting, cleaning and treating costs, the need to remove contaminants like weeds. Saved seed can over time suffer from genetic drift and yield drag. You also forego the income you could have gotten from selling the portion saved as seed. And that is completely overlooking the opportunity costs of foregoing advances in genetics that come along .

      I am not making the argument that saving seed is hopelessly frought with inevitable failure — farmers have saved seed successfully and can be very skillful at it. I am not even arguing that it is or isn’t better for farmers or society that farmers have available nonrestricted varieties that they can save back for planting. I am only making the argument that
      producers choice to outsource seed inputs, the predominant practice in most crops I am familiar with long before ge varieties arrived on the scene, is a rational economic choice that does not require coercion to explain.

      • Mlema

        For most any planting that the average citizen would be familiar with in the developed world, saving seed isn’t done for practical reasons. The issue of saving seed came into play when the “green revolution” (mechanization of agriculture) was brought to the developing world (at the time, Southeast Asia and Latin America, for example) – where saving seeds was how crops were developed, improved for suitability to the region, maintained. Lots of diversity.

        Hybrids increased yield, required more inputs, and reduced crop diversity. With regard to economics, they were patented, cost money and had to be purchased each year. This broke many poor farmers – and led to the growth of the gargantuan slums in countries like India. Farmers moved to cities when they couldn’t make a living off their land anymore.

        The consolidation of land into “mega-farms” for growing commodities like sugar, soy, cotton, etc., has happened the world over.

        I make no judgement as to right or wrong here. This is a function of population and the actions of those of us who are privileged to benefit from global economics and technology that have, in many cases, been a detriment to others.

        • Mlema

          GMO crops are simply the next step up that ladder. They are patented hybrids, and have patented traits. And most are either engineered to tolerate pesticides or themselves produce pesticides. They’re more expensive. Not necessarily a good fit for every farmer the world over. Again, this isn’t a judgment on GMOs or those who use them. But I do believe you have to stretch things to claim that GMOs are required to feed the world. In a number of places, people are hungry because they’ve lost their land to mega-farming of crops for biofuel, export, etc. A lot of land-grabbing is happening in South America.

          https://en.wikipedia.org/wiki/Land_grabbing

          REgarding patented seeds in the US: farmers wouldn’t want to do without them. And basically: who cares? But there is a difference between seed patents and IP patents. The first patents a product. You can do with it as you wish – but you can’t try to “reverse engineer” the seed to develop it yourself. Patents on GMOs mean that the developer owns the rights to the seed from your crop. If you want to try to grow more crops from your hybrid seeds, no problem (although, as the article notes, why would you?) But there are rules that govern the seeds from your GMOs.

          In practice, this is irrelevant in the US, Europe, etc. It becomes important in developing nations. But there again, the hybrid seeds have already had the effect.

          Illustration of difference:
          If you breed a GE goat that gives a more nutritious milk, and you sell me that goat – I can use it as I see fit. I can sell the milk. But if the goat has a baby, I would have to pay some kind of fee to use/sell that goat’s more nutritious milk. If I didn’t want to do that, I could charge to see the freaky goat, since a genetically engineered organism is more likely than a hybrid to show pleiotropic changes. ;)