For nearly 40 years, Frank Morton has been growing plants. Particularly interested in lettuce, he began growing special salad greens that were once rare in the produce market. Morton, 68, developed entirely new lettuce varieties using an organic farm system and eventually founded Wild Garden Seed, based in Philomath, Oregon, with his wife, Karen.
Although he loves his job, being a small-scale plant grower is not without its challenges. Over the years, Morton has watched as big companies take over the seed industry, using utility patents to claim that seeds are an invention.
Relating to: Only two northern white rhinos remain. First in vitro pregnancy of the species could save them from extinction
A utility patent prevents an invention from being used, reproduced or sold without permission. This left small-scale growers in limbo; When developing new plant varieties, they were often unsure of what they could and could not use.
Morton experienced firsthand the effects of such patents. In 2021, he shared one of his lettuce varieties, “Funny Cut Mix”, with a reliable customer who also grows plants. The lettuce was a real mix: some heads were red, some green, others speckled. The leaves all had different types of frills. The client planned to include in lettuce trials the “Funny Cut Mix” that plant breeders use to evaluate how well a variety will perform in a particular environment.
A few months later, the customer informed Morton that the “Funny Cut Mix” would be excluded from further trials because it resembled a patented type of lettuce called Salanova, owned by the Dutch company Rijk Zwaan. Although he did not use any patented ingredients to develop his “Funny Cut Mix”, Morton’s variant was excluded simply because its appearance might infringe on that patent.
Morton doesn’t blame his client. Instead, he points to the restrictive system of utility patents and the fear it instills in small-scale seed growers.
“I’m trying to compete here and I can’t compete because they don’t want to compare my lettuce with a patented lettuce,” he takes precautions.
In 1980, the US supreme court ruled in Diamond v Chakrabarty that patent protection could be used for living organisms, including plants. It could be argued that seeds, which have been openly stored and shared by breeders for thousands of years, are now an invention. When a company is granted a utility patent for a type of seed, the company not only owns the seed. It also owns its own characteristics (colour, texture, disease resistance, cultivation method), future generations of that seed and all research rights.
So if a plant breeder like Morton develops his own variety of lettuce, and the lettuce matches any characteristic of a patented variety (whether it’s color, the curliness of the leaf, or a trait that makes it suitable for a particular climate), the grower is technically violating patent law. and risks being sued by the patent owner. There are utility patents for “Bright White Cauliflower,” “Fine-Tasting Melons,” “Red Lettuce,” and “Heat-Stable Broccoli.” Some patents are so comprehensive in their subject matter that they are almost 50 pages long.
They are actually just making obsessive-compulsive descriptions of plants and making claims about those properties, so if someone else has those properties, they are in violation.
Frank Morton
“They’re essentially just making obsessive-compulsive descriptions of plants and making claims about those properties, so if someone else has those properties, they’re violating that,” Morton said.
The U.S. patent system was designed to foster competition and encourage innovation. But the patent system has opened the door for large companies to patent thousands of plant varieties and traits, locking away the genetic resources that seed savers have relied on for generations.
Today, just four companies – Bayer, DowDupont/Corteva, ChemChina-Syngenta and BASF – control more than 60% of the worldwide seed market. Bayer alone has more than 20 different varieties of lettuce, some of which have been under the company’s ownership for over a decade. Each patent contains a comprehensive list of the variety’s features and characteristics.
Phil Howard, a professor in the department of social sustainability at Michigan State University, explained that the system rewards strong firms with resources to develop and enforce patents. Because patent law is complex and unclear, many small-scale growers do not know whether the seeds they want to work with are patented. He said this hindered their freedom to experiment.
“Some of these big companies will make seed breeders believe that they have broad patent claims on many seeds, when in reality there is no such thing. “So the current lack of transparency and complexity really gives huge advantages to these big companies and really hinders the smaller companies.”
There is always a general concern that one day they will decide that we sold something they think belongs to them and sue us for it.
Aunt Andrew
Adaptive Seeds is an organic seed company that grows without the use of chemical fertilizers and uses no intellectual property; Anyone can openly save and share seed varieties. In April 2020, the company received a letter from BASF, the German multinational chemical company and owner of Nunhems, the world’s fourth largest vegetable growing company. The letter did not directly accuse Adaptive Seeds of using patented material, but it did list the seed varieties and traits that Nunhems had patented. It was an ominous reminder of just how many features and varieties BASF had control over.
Andrew Still founded Adaptive Seeds in 2009 after noticing increasing consolidation in the seed industry. When breeding, Still generally uses seeds marked as open source and not patented. But patents can be confusing, so there are concerns about inadvertent use of a large company’s patented material, Still says.
“There’s always a general concern that one day they’re going to decide that we sold something that they think belongs to them, so they’re going to sue us,” Still said. “We would give up because we don’t have lawyers or money for things like this, and they do.”
For Kristyn Leach, a breeder at Second Generation Seeds, a seed center that sells Asian heirloom seeds, seed is much more than a commodity. It represents the history of “what someone values and how they farm,” which is unique to each region and farmer. Patents useful to her small company are not such an everyday affair, she explained. Instead, they endanger culturally important seeds in the long term.
“Many products have been patented by companies that have no responsibility to the places or people where these products are native,” Leach said.
The more seed is patented and controlled by fewer people, the more the seed will lose its genetic richness, he added. At Second Generation Seeds, Leach and his colleagues try to do the opposite; They seek to increase genetic diversity by recognizing the connection of seeds to place and culture. The company acts as a marketing hub where small-scale farmers can sell seed packets and in return receive most of the packet sales money, excluding the cost of production. Leach says this is a way for small-scale growers to break into the commercial seed market, which has become difficult due to consolidation of the industry.
With this consolidation came the closure of public plant breeding programs. Nearly a third of the nation’s public plant breeding programs have been closed in the last 30 years. Leach sometimes collaborates with community college training programs, which is when he must be most careful not to use patented material.
… Crops have been patented by companies that have no responsibility to the places or people to which they are native.
Kristyn Leach
In June 2023, the U.S. Department of Agriculture and the U.S. Patent and Trademark Office (USPTO) launched Farmer Seed Liaison, an online tool to help growers and seed companies better navigate the seed patent system. The resource includes a search engine for existing facility patents, guidance on how to read patent applications, and a portal where complaints can be submitted.
“More than ever, farmers need access to a variety of seed options in our changing climate. Unfortunately, farmers today don’t always have sound choices; “It’s a challenge recognized in the Biden-Harris executive order on competition,” he said. “USDA’s Farmer Seed Liaison initiative promotes access to seeds for research and plant breeding, working to ensure growers are transparent about purchasing seeds, and It aims to expand farmers’ options and strengthen the resilience of our seed and food supplies by making their voices heard. Plant breeders and small businesses must be included in the seed patent review and policy process.”
Still, he thinks the program from Adaptive Seeds is a step in the right direction, but as a small-scale grower, he’s wary of federally funded programs and their attendant bureaucracy. He believes the real problem, as with the entire patent system, is anything that prevents seed breeders from sharing openly with each other.
To do their part in ensuring that at least some of the seed remains a public resource, both Adaptive Seeds and Wild Garden Seed are participating in the Open Source Seed Initiative (OSSI). Through OSSI, growers undertake that their plant varieties will not be patented or licensed in any way that would restrict their use. Through this commitment, OSSI is developing a seed pool available to all farmers, scientists and researchers for unrestricted use. There are currently over 500 plant varieties under OSSI commitment.
Morton, a founding member of OSSI, has pledged more than 100 varieties to ensure the products he grows can be used by others without restriction. He remains staunchly opposed to “people laying claim to the work of nature” and will continue to do what he can to keep small-scale animal farming alive.
He said: “This is not about me. It’s all about the principle. And whether growers will have the freedom to operate in the future.”