Don’t Judge a Plant by its Seed: GMOs and Patent Laws
This post accompanies the Sci on the Fly podcast “Some love them, some hate them, some don’t care: GMOs.” That podcast mentions (at 8:50) three Supreme Court and federal court cases significantly impacting the research and development of genetically modified organisms (GMOs -- organisms whose genetic material has been modified through genetic engineering).
Plant Patent Act (PPA) of 1930
Following the Chakrabarty ruling, the US Patent and Trademark Office (USPTO), in the 1985 Ex Parte Hibberd decision, declared that utility patents could be applied to plants. In the case of plants a utility patent can apply to the genetic engineering method, the genetic sequence being inserted, the resulting plant, any part of the plant which has been modified, and even the seeds. The decision to grant utility patents for plants gave inventors much broader protections, but placed further restrictions on potential users. In this case, for example, farmers and breeders would be prevented from saving patented seeds if the licensing agreement for those seeds stated such.
The test against the utility patent decision by USPTO came in a series of cases which escalated into a Supreme Court case in 2001, J. E. M. Ag Supply, Inc. v. Pioneer Hi-Bred International, Inc. Pioneer claimed that J.E.M. Ag Supply, Inc. had infringed on its utility patent of a hybrid corn seed sold under license by purchasing and reselling those the hybrid corn seed bags without Pioneer’s authorization. J.E.M. Ag Supply, however, filed a counterclaim indicating that sexually reproducing (i.e., seeding) plants were not intended to be covered under the broad scope of utility patents. They further maintained that patent protection for plant life was regulated by the PPA of 1930 and the PVPA of 1970 and therefore Pioneer’s legal claim and patents were invalid. The Court issued a decision in favor of Pioneer and indicated that while Title 35, Section 101 is broad, i) the 1980 Chakrabarty decision already concluded that living things are patentable and ii) while the PPA and PVPA set guidelines for patenting asexually and sexually reproducing plants, respectively, they are not exclusive in their scope and therefore do not exempt plants from utility patents.
The utility patent decisions by USPTO and the Court have ignited an extremely heated debate revolving around the basic rights to grow one’s own crop and reuse saved seeds for the next season; an agricultural practice which has been used for millennia. Even though utility patent protections on plants may be viewed as unacceptable by some, it is important to remember that patents have a limited shelf-life. They expire, like ultra-pasteurized milk. And, if deemed truly necessary for the public good, patent protections can be rescinded. Therefore, fear not, it is unlikely that a few large corporations with GMO utility patents are truly going to monopolize global food markets. In the meantime, you can decide with your dollars whether or not you support GMOs.
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