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Tuatara: Volume 29, Issues 1 and 2, August 1987

Plant Patenting : A Stimulus to Excellence, or an Expression of Unedifying Self-Interest?

Plant Patenting : A Stimulus to Excellence, or an Expression of Unedifying Self-Interest?

The past provides a powerful force in shaping the attitudes and actions of the present. It is therefore useful in matters of debate to trace the history of events, and I have found this activity helpful in the formulation of my own views on the subject of the patenting of life forms in general, of which plant patenting is part.

A patent is a state-created ownership which permits the patent holder to enjoy royalties and set conditions of use for his/her invention over a number of years. The first patent rights were granted in Italy in 1474 (Doyle, 1985), and since that time intellectual property law has developed in various directions. Its history has been somewhat turbulent, with a fair degree of dissent, and today the arguments for and against patenting loom larger than ever, especially since the advent of relatively inexpensive copying techniques such as xerography and the video recorder. The two major viewpoints regarding patents are: Firstly, that patents provide an incentive for inventiveness and innovation, and from a philosophical viewpoint why should not a person be rewarded for effort? The second viewpoint is that since every invention is based upon the evolution of knowledge within society, why should a single individual enjoy exclusive rights over that idea? Also, there is the strong evidence that far from encouraging excellence all that exclusive patent right encourages, is product proliferation.

In the traditional sense, the patent was applied to industrial processes or inventions; — i.e. the patentable object was something recognisably a unique product of personal effort. In today's world inventiveness is no longer the inventor's flash of genius (if it was), but more of an institutional process. The individuals or inventors of earlier years have now become corporations, governments and universities. The debate over patents today has been particularly intense in the areas of pharmaceutical products, where governments have been persuaded by large drug houses to permit them to use the patent to circumscribe their market ferritory and exclude competition by smaller companies. For example, in 1983 Pfizer was awarded $55.8 million (U.S.) in compensation for an infringement by the International Rectifier Corporation, involving the animal antibiotic doxycyline. Instead of an actual cash award, Pfizers took over Rochelle Laboratories, a subsidiary of the rival firm, thus firmly entrenching Pfizer as a major monopoly in the animal health business.

Seed selection and barter is as old as agriculture itself. Neolithic mankind certainly farmed, and must have collected and selected seed to plant in subsequent seasons. Traditionally farmers have selected their best seed for growing on the following year throughout history, and in so doing, established the old landraces page 4 of many of our food plants. In the late middle ages some “large” seed firms became established; their activities much enriched by colonialism which enabled Western botanists to raid seed from many parts of the world: (I use the word raid here deliberately, because frequently the seeds or plants were taken against the expressed wishes of the indigenous countries, see Brockway, 1979. Some of these old European and North American seed firms were still household names when I was a child.

In the 1920's there was a move to include living organisms under the patent umbrella — in particular ornamentals such as roses. But it was not until the 1960's and 1970's that patenting of plants was lobbied for in a very strong way, and at the same time as large pharmaceutical and chemical transnationals began to take over the smaller seed firms. Today the largest global seed firm is Royal Dutch/Shell which Fortune magazine ranks a No. 1 in its list of major industrial enterprises outside the U.S.A. (Fortune, 1978). Other ‘new seedsmen’ (to use Mooney's terminology, 1979) include: Union Carbide, (of Bhopal fame), Monsanto, I.C.I., Pfizers, and Upjohns.

At about the same time as the change-over in ownership of seed firms, a new organisation with the acronym of UPOV (International Union for the Protection of New Varieties of Plants), was born. It is closely connected with another organisation called WIPO (= World Intellectual Property Organisation), such that the Director-General of one is the Secretary General of the other. Under the guidance of UPOV (which strongly represents the interests of the new seed owners), the E.E.C. has been encouraged to adopt a ‘Common Catalogue’ of patented ‘legal’ plants. UPOV also has the expressed aim of encouraging all countries to enact stringent plant patent legislation, with the threat, covertly at least, that if they do not comply, their country will be ‘left out in the cold’ as far as exchange of plant genetic material is concerned.

How does one Patent a plant, and what does it imply from the Biological Viewpoint

Some plants, such as hybrids have their own in built “patenting” system, in so far as it is useless for the purchaser to save seed from hybrids since the progeny will not breed true.

Unforseen difficulties frequently arise when one particular discipline attempts to define matters pertaining to a very difficult discipline, in its own terms. Never was this more true than when matters biological are subjected to the rigours of legal definitions. In order to be patented, a plant variety must meet the legal standards of distinctness, uniformity and stability, (often referred to as the “DUS criteria”). European breeders have stated that they are putting 30-50% of their research efforts into meeting the cosmetic demands of D.U.S. standards. These standards must be met in order to avoid the future conflicts of ownership and endless litigation. The kind of uniformity required by law actually acts as a disadvantage to growers for the following reasons. A certain amount of variability in a variety benefits farming practices. A patented plant which is grown in both the north and south of the country will, over a few years of selection by the grower inevitably ‘adapt’ to the different environmental pressures exhibited in different areas. This variability is of benefit to the growers who traditionally save seed from the plants which are the most productive in their microclimate, to sow the page 5 following year. It is not to the benefit of the owner of the patent, who may soon be unable to prove that this (now) variable variety is his in a court of law. Submissions given to a Select Committee by New Zealand Federated Farmers in 1983 stated that some seed salesmen now refused to sell seed to a farmer unless the farmer also engaged in a contract to sell the resultant crop back to the seedsman at less than the price which the farmer could have obtained on the open market. In effect, the seedsmen were patenting the crop as well as the seeds. One of the examples given on that occasion was that of the lentil variety: ‘Titore’ bred by D.S.I.R. and subsequently marketed by a private company.

Many of the old landraces of plants are too morphologically variable to fit the legal straight-jacket of the D.U.S. criteria and they cannot be patented and hence included on the official lists of various countries, (including the E.E.C. ‘Common Catalogue’). This means that they are seed which it is illegal to sell — except for research purposes. As a result, many old landraces have already been irretrievably lost. It has been stated that there were many synonyms amongst the 1547 vegetable varieties recently deleted from the European lists, but investigation showed that in fact only 38% were synonyms and amongst the synonyms there was some confusion as to whether or not they were in fact, name duplications (Mooney, 1983). The stringent requirement for distinctness, uniformity and stability is also a handicap to avenues of research. For example, multi-line varieties consisting of several genetic strains (simulating the old landraces), cannot be pursued because they do not lead to patents. Multiline varieties have the advantage that having a variable gene pool they are not so subject to total crop destruction by disease or climatic changes.

Effect of Patenting on the Conduct of Science

Science traditionally requires discoverers of new facts/processes/ideas, to publish their findings openly in a reputable scientific journal for all to scrutinize and evaluate. This open arena under which science currently operates does have its shortcomings, (and most of us are familiar with these), but in general the system works reasonably well and this concept of openness is jealously defended. Due to the pressures to patent new ‘discoveries’, plant breeders are finding that their research is subjected to the secrecy of immediate patenting in order that their client company may secure a commercial advantage. Thus the patent supplants the normal scientific publication process. Doyle (1985), reports that in the U.S., (where patenting laws are also operative), “secrecy in plant breeding and plant-genetics research and restrictions on the exchange of seeds are becoming common place”. Also university plant breeders are becoming: “even more reluctant to exchange scientific information”. Some of the American universities have resorted to the practice of ‘exclusive release’ of new crop varieties to biotechnology companies in return for funding, (e.g. Cornell). Scientific communication between plant breeder colleagues at some universities has ceased (Doyle, 1985).

Here in New Zealand, the new ‘client relationship’ which is being promulgated amongst government scientists, can only serve to ensure that such science is conducted in privacy, although I have come to the conclusion that some government departments had already had a strong client attitude before the introduction of this new direction by the government.

page 6

I would be one of the very last persons to promulgate the notion that traditional science was always a value-free, objective — or even honest activity, but some of its more noteworthy members (not necessarily the same as its most famous ones!), did, or do aspire to those virtues. While these codes of behaviour are still the unwritten affirmation by which we all nominally operate, I consider that they are worth upholding and enhancing, rather than abandoning in the face of unedifying self interest parading under the guise of practical economic necessity. In the end, science will be the poorer.

I stated earlier that one of the reasons continually given in support of patents is that it encourages innovation and continued investment in research, and thus by implication, patents contribute to the social good. But there is compelling evidence to suggest that this is not happening in many instances. It is not uncommon for a chemical or pharmaceutical firm to spread its research costs over as many patentable years as possible, by incorporating trivial improvements rather than genuine innovation. What the customer gets in these instances is a sequence of products all of which are analogues or close analogues of a previously proven profitably successful one. The guiding rule for issuing patents is that the invention has to be different, not better. In America a patent was granted for a soyabean variety whose distinguishing feature was that it was susceptable to a disease! In its defence the company argued that what was being patented were the (presumably genetically linked?) unexplored genes in that variety for use in their future research projects, rather than a viable commercial product (Doyle, 1985); which serves as a nice example of the extraordinary ingenuity of human beings to interpret matters in the light of their own world view.

Other negative factors of the patenting process are that one tends to get almost identical products put up by rival firms. For example, in the United States in 1970, a million acres of maize was blighted by a strain of the fungus: Helminthosporium maydis, reducing the American maize harvest that year by an estimated 15%. The cause was the genetic uniformity amongst the hybrid varieties on the market which resulted in 80% of the maize grown showing a genome conferring what is known as T-cytoplasm. The T-cytoplasm characteristic provided a useful means of circumventing the need for hand detasseling the maize, but it also carried a (linked?) gene conferring susceptability to a new strain of the fungus. Nor is such genetic uniformity confined to maize. However, with the trade secrecy which accompanies the patenting process, it is difficult to know how widespread this problem may be.

Biotechnology is becoming so sophisticated that products can be made which bind synthetic herbicides, growth hormones or insecticides to a particular crop, — i.e. chemicals matched to genes; all of which can be patented. Herbicide-resistant crops for example can contribute to the continuation of synthetic chemical products which are dangerous to the environment and/or public health. This kind of activity is merely following the dictum of “good market practice”, ensuring that one branch of a company's activity enhances and supports their other branch. Clearly such activities steer agricultural research in one direction.

The New Zealand Legislation

So far I have not referred specifically to the New Zealand plant patenting laws or the new Bill currently before the House. In brief, since the early 1970's the page 7 New Zealand legislation has been moving more and more in line with the stringencies of the E.E.C. patenting laws, no doubt due to the strong lobbying of the new seed owners through UPOV. There are aspects of the Bill which certainly affronted my taxonomic sense.

While New Zealand is altering its laws to match the interests of the patent lobby, it would seem that the European Parliament at least is having second thoughts about the matter. In the minutes of the February 1986 meeting of the E.E.C. Parliament, a Resolution on the question of genetic diversity of cultivated plants and trees included the following statement:
  • ‘Calls on Member States in this connection to adopt the FAO International undertaking on Plant Genetic Resources, to act in accordance therewith and to work for a binding international Convention on Plant Genetic Resources, whose provisions should include:
  • - incorporating existing banks of plant genetic material in a network under the supervision of the FAO that is freely accessible to all the Member States,
  • - guarantees that plant –enetic material can be freely exchanged’.

There are many ramifications of the plant patenting business which I do not have space to discuss in the time available. A glance over the hundreds of years of history of wars and conquests shows that ownership of food and drug plants have always played an integral part. Plant patenting is a matter in which scientists must seriously ask themselves who they are doing their science for? Upon distillation, the story of gene ownership is, in my view, really about aggression, power and control.


Brockway, L.H. 1979: Science and Colonial Expansion: the role of the British Royal Botanic Gardens. Academic Press. London.

Doyle, J. 1985: Altered Harvest: Agriculture, Genetics and the Fate of the World's Food Supply. Viking Press, New York.

Mooney, P.R. 1980: Seeds of the Earth: a Private or Public Resource? International Coalition for Development Action, Ottawa.

Mooney, P.R. 1983: The law of the seed. Developmental Dialogue 1-2:1-172.