A much debated issue exists between advocates of farmer's rights and advocates of intellectual property protection plants. The issue is generally divisive; however, I contend that the needs of both parties do not need to be diametrically opposed, and in fact, can be mutually beneficial.
Obviously, considering this essay is published on an intellectual property website, it supports the idea using intellectual property for plants. Seemingly conversely, I am also studying sustainable biofuel agriculture in graduate school. Many of my fellow environmental and sustainability students think that my business represents the evil side of large scale agriculture and it is hard for me to explain the critical importance of plant breeder's rights in preserving biological diversity and providing economic opportunities - even for farmers and plant breeders on small farms.
Intellectual property is a tool and like any tool, it can make your job easier or cut you. We aren't going to change the tide of intellectual property so it is best for smaller plant breeders to learn how to use the tool to get the same benefits as the larger companies.
Exactly what is protected by a plant breeder's right or plant patent?
Each plant breeder's right grant is based on the specific genetic make-up of one particular plant. Sometimes two plants are so similar in their look, their phenotypic presentation is indistinguishable from similar plants, that the only way to tell the plants apart is by using genetic markers. I haven't seen plant breeder's rights offices insist on genetic testing in order to distinguish a plant (and therefore issue a grant) but it is becoming more common for patents on plants at the United States Patent Office and at the European Patent Office to rely on genetic fingerprinting or marker mapping.
So, even if a plant, such as corn, was historically bred by a population, that is considered the "base material" but if a company introduces a genetic change in a plant that they can document and they can repeat the unique genetic expression (in legal terms, exhibit distinction, uniformity, and stability, or DUS), then their change represents their inventive contribution and it is this invention that receives legal protection as an individual plant.
Fair Use vs. Intellectual Property
Plant breeders who produce plants and don't obtain commercial legal protection for the plants are more like artisans contributing to our "common use" knowledge and so the use of their inventions is fair game to anyone who would like to use it. For some plant breeders, they think that is the way things should be and they are happy to contribute to fair use. Later, it may seem unfair when someone else recognizes the value of this inventive plant and builds on it, and then legally protects it, but those legal systems are in place for everyone to use.
Where things become more complicated is when a company with an advanced breeding program obtains plant material from the local community and then incorporates that same material into its breeding lines, then there can be questions such as the ones you are asking such as "who really owns" the final inventive plant. Such companies are supposed to list the contributing breeders as inventors when they file applications but I imagine this doesn't always happen. The U.S. patent office, for example, stipulates that only an inventor can apply for a patent, so if unknown plant breeder inventors are not listed in the patent, then this is a problem. The patent office; however, doesn't have the resources to investigate whether the people listed on the invention application are ALL the inventors; although they do have investigative processes available if anyone objects to the Inventorship. So there are systems in place for recourse but like any legal recourse, if one is on a limited budget or the plant doesn't have much market value, then one has to make the decision as to whether the legal battle is worth the effort.
It is not uncommon for people in the industry to share plant material, in fact, it is the backbone of the industry. But where is the difference between sharing and theft?
Tracking the Breeding History to Determine Ownership of Plant Material
Of note, whenever you apply for plant breeder's protection, your application requires you to state the breeding history all the way back to the first publicly available plant, and then you are no longer required to state the breeding history. If a plant that is legally protected is included in the breeding history and that same plant is owned by someone else but they did not give permission to use the plant, then your newly invented plant was created illegally. The issue becomes even more complicated because of our global commerce environment.
Let's say a plant breeder develops a superior quinoa grain in Peru that has twice the protein content of any other known plant. Let's then say this breeder has the resources to commercially protect their plant with a plant breeder's right application via the UPOV convention. This plant breeder now feels secure about offering the quinoa grain for sale. Meanwhile, health nuts in the U.S. find out about this particular variety and they increase the demand for this particular plant. Someone with more financial resources and distribution systems than our Peruvian plant breeder decides that they want to capitalize on this market opportunity. Their legal team investigates the plant and they learn that the plant is protected via plant breeders rights, but only in Peru. So let's say this same company goes to Columbia and pays farmers to grow out the plant there. They do so successfully, and because this company has a lot of resources, they apply for plant protection in a number of countries, except Peru. Now this is pure theft but that doesn't make it uncommon. Intellectual property laws are country specific and protection is technically limited within the boundaries of the country offering legal rights.*
Eliminating intellectual property protection will not eliminate greed and the propensity for theft among humans. Intellectual property is limited to providing a legal system of recourse to respond to the debased nature of some of our fellow humans. Laws are in response to our worst natures. If humans focused on being ethical and doing the "right" thing, then we would need far fewer laws and regulations. We often know what the right thing to do is, so if we simply did it, we wouldn't need someone else forcing us to do it. I digress but with explorations on ethics, it is tempting to do…
Solutions that Empower Small Farmers by Increasing their Legal Rights
Back to our example, what is the recourse for a plant breeder who lacks the resources to obtain rights in global commercial markets but wants to take advantage of the intellectual property tool? I think they should model the Fair Trade coffee industry. That industry has effectively created a powerful market for socially responsible consumerism. Their brilliant marketing campaigns introduced us to the farmers and their children who make our daily cup of coffee possible and in good conscious, we feel like we are contributing to the improved economic opportunity for these families. Fair trade represents the true spirit of commerce where there is a mutually beneficial exchange.
I am not aware of any similar fair trade efforts for cereal grains and bioenergy crops but I am confident that such a model would work. Farming co-ops have proven that they can provide more protection for small farms and it is time that these same co-ops incorporate intellectual property protection as one of their tools so that they can better compete and benefit from our global economy. As a group, an intellectual property co-op could successfully compete with larger organizations, and as a group, they can solidify a market presence embraced by the socially responsible consumer.
*Other laws, governing trade, for example, try to compensate for the limitations of country-specific intellectual property law and may offer recourse in situations similar to this fictitious example.
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