How the Government Got in Your Backyard

by Jeff Gillman

  An alternative system would be for the government to standardize the use of labeling for foods that don’t have any genetically modified material in them, similar to what is happening with organics right now. Designate what’s not there rather than what is. The private sector is beginning to do this already. In 2009, the organic and natural foods chain Whole Foods announced that it would be partnering with the Non-GMO Project, a nonprofit group opposed to genetically modified foods, to use their Product Verification Program (PVP) to label foods that don’t include GMOs. This label will give consumers the freedom to choose foods that aren’t made with genetically modified organisms but may still be cheaper than organically produced food. If there is a demand for these nonmodified foods over a period of a decade or so, the government may step in. That is, after all, how the government originally got involved in labeling organic foods.

  Right-Wing Rating While there’s nothing wrong with letting the market decide which products succeed, there could be a lot of unjustified damage if the public reacts in ignorance and fear to foods labeled as genetically engineered. This unintended consequence would badly affect farmers who are using this technology to keep their crops going and avoid the use of expensive pesticides. If certification and labeling are warranted, let private industry set the standards; they’re the experts and won’t impose unnecessary and cumbersome rules.

  Left-Wing Rating Letting people know what they’re buying is a great idea.

  The Bottom Line

  So where should the government come down? It’s not an easy question to answer. Changing the DNA in a plant or animal makes it into something new that—though not radically different from what it was before—has different qualities. In other words, this could be considered “playing God.” Most scientists consider this to be a religious argument against biotechnology, and some consider it to be an irrational one. We beg to differ. If you value your religious beliefs (and here we’re including those who might be atheists but who believe that nature is a deity unto itself), then biotechnology may be in direct opposition to your values. You should realize, however, that nature itself changes the genetic code of creatures through mutations, and that some organisms, such as Agrobacterium, can insert DNA into other organisms—we’re not the only species that uses biotechnology.

  Rejecting biotechnology because you fear its potential to end life on this earth isn’t realistic, but rejecting it because you think that the drawbacks are potentially worse than the benefits is very valid. The dangers of biotechnology have been widely publicized, and, unfortunately, many of the bad things that have been predicted have come true. But it’s also true that the predictions were much more dire than the reality seems to be. If you think that herbicide-resistant weeds have the potential to make our most reliable herbicides useless, then you have a legitimate concern. If you fear that our overuse of Bt as a gene in transgenic crops has the potential to make one of our valuable organic pesticides (Bt) less useful because it will result in Bt-resistant caterpillars, then you also have a legitimate concern. If you fear that transgenic plants will be detrimental to human health, well, that just hasn’t happened yet, despite quite a concentration of these products in the grocery stores, and it doesn’t seem likely to happen either—though it’s impossible to completely discount it as a possibility.

  Right now the most convincing arguments about possible negative effects on human health from GMOs come from a few studies on mice. The meaning of these studies is perhaps best summarized by a quotation from the “Report on Safety and Nutritional Assessment of GM Plants” published by the European Food Safety Authority: “The majority of these experiments did not indicate clinical effects or histopathological abnormalities in organs or tissues of exposed animals. In some cases adverse effects were noted, which were difficult to interpret due to shortcomings in the studies.” In other words, while we can’t ignore the few studies that have shown that feeding GMO crops to rodents can be detrimental to their health, these studies don’t clearly show that these crops are bad. People who are very concerned about risky food will nonetheless find that these studies provide enough data for them to make the effort to avoid genetically altered foods.

  If the government requires the labeling of food that has a high percentage of GMO material in it, people will assume that the government is making a statement about the health risks of GMO food (which they have not done) simply because there is a label, just as many people incorrectly assume that the USDA Organic label means the government has found health benefits to eating organic food.

  If the government requires the labeling of food that has a high percentage of GMO material in it, people will assume that the government is making a statement about the health risks of GMO food (which they have not done) simply because there is a label, just as many people incorrectly assume that the USDA Organic label means the government has found health benefits to eating organic food. Private industry labeling of non-GMO foods seems like a good idea, and it’s surprising that it has taken so long for it to take hold.

  Unless you’re in the camp that believes that using biotechnology is bad in and of itself because it is contrary to nature, then biotechnology is probably acceptable to you for some applications. The next question is, what applications do you find acceptable? Not every genetically modified organism has the same potential for altering the environment, and each needs to be assessed for its own benefits and drawbacks. You can easily argue that some of the things we’ve already done with this process have been bad. But biotechnology is, like pesticides or fertilizers, a tool for us to keep our crops healthy. The one difference between this tool and the others is that changes to an organism’s DNA may be carried on in its progeny. This is reason enough for the government—and all of us—to pay special attention to each new genetically modified organism that we decide to introduce.

  CHAPTER 7

  Plant Patents: Protecting Plants

  or Profiteering?

  HOW NEAT WOULD it be to have a special plant that you could call your own and that you could plant at your discretion—and no one else could plant it, unless, that is, they paid you? It seems counterintuitive that plants can be owned in this way but patents, specifically plant patents, ensure that they can. Apples such as ‘Honeycrisp’ and ‘Connell Red’ were once patented, as was the ‘Mars’ geranium and many others. The U.S. patent office has been granting plant patents since August of 1931, when a man by the name of Henry Bosenberg received a patent for a climbing rose that kept blooming for substantially longer than other, similar roses. This rose wasn’t even bred by Bosenberg, it was just a ‘Van Fleet’ rose (named for the breeder, Dr. Walter Van Fleet) that he had purchased from someone else and it had the unusual, redeeming quality of reblooming. But Bosenberg propagated it using a stem cutting, and once you propagate a plant and file the paperwork, it’s yours. Bosenberg named this rose ‘New Dawn’, and if you’re willing to look around a little, you can still find it in garden stores today.

  Is it right for one person to be able to “own” a living organism and to control who grows and sells it? That’s a tough question. And it’s not just plants that can be owned: all of the genes we just read about in the previous chapter can be owned too. This means that if your crop was planted with seeds that came from plants that contained those patented genes, or was even fertilized by plants with those genes in them, then your plant probably has those patented genes and you owe some company some cash. You say it was an accident? Too bad, if the company who owns the patent to the genes that you accidentally acquired decides to sue.

  Before 1930, when you discovered or bred a new sort of plant, you had absolutely no control over it other than selling as much of it as you could before someone else propagated it and began to sell it more cheaply than you. This would usually take a year, or two at the most, so there was little incentive outside of universities to breed anything new. But the ability to patent plants meant that the new plant you developed (or discovered) would be yours, at least
for a little while. Governmental protection for patented plants does expire, but usually not until the plant has made its creator some money.

  A plant patent is just one way, albeit the most common way, to protect a plant. Plant patents can only be used for plants that are propagated asexually—in other words without using seeds—such as Henry Bosenberg’s rose. There is a second means of protecting a plant, called the Plant Variety Protection Act of 1970, which is like a plant patent except that it’s used for plants propagated by seed, such as corn and oats.

  A third means of protecting plants, and the one used with the least frequency, is the utility patent, which is the same type of patent used for inventions like the paper clip and the cotton gin. The utility patent is the most powerful protection. Like the other two methods, it prevents those who purchase a patented plant from selling its progeny, but it can also prevent that plant from being bred to create new plants or from being used for seed within a farmer’s own fields. Furthermore, a utility patent can protect more than just one variety of plant. In other words, it might have allowed Henry Bosenberg to patent a whole species, not just the cultivar he discovered.

  The plants most commonly protected by utility patents are transgenic plants, because the genes that have been inserted are themselves patented. These patents are obtained by the company that created and is selling the transgenic seed, so that farmers have to buy the transformed corn, soybeans, or whatever, year after year rather than collecting the seed from their own plants, which would already contain the gene. But these transgenic plants aren’t the only plants protected by a utility patent, there’s another example, too.

  In 1999, Donald White, a professor at the University of Minnesota, patented varieties of Poa annua (U.S. patent 5,912,412), more commonly known as annual bluegrass. This grass was usually thought of as a weed that had the ability to crowd out more desirable grasses, particularly on golf greens. White decided to develop a variety of annual bluegrass with redeeming characteristics. In essence, he decided that since he couldn’t breed something to outcompete Poa, he’d breed the Poa itself to do the job. Annual bluegrass found in the wild isn’t particularly desirable for golf greens because it has the propensity to create too many seeds and it has a lighter green color than most people prefer on a golf course. Over years of breeding, White developed a variety, called ‘True Putt’, that produced fewer seeds, was darker green, and had other characteristics essential for high-quality turfgrass. Naturally, White wanted to protect the years of research that he had put into ‘True Putt’, so he patented it using a utility patent. Specifically, the patent covered “novel varieties of Poa annua that are perennial and have characteristics desired for a turfgrass, including dark green color, vigor, disease resistance, and restricted flowering.” By using a utility patent, which protects the way something is used or the way in which it works rather than a single variety, White had much broader control over this species of grass than if he had used a plant patent or the Plant Variety Protection Act. And since the characteristics that White listed are highly desirable for just about any grass that you can name, he essentially stopped anyone else from producing a commercially useful variety of annual bluegrass. As stated by Eric Watkins, another turf breeder at the University of Minnesota: “There aren’t many reasons to develop a variety of this species besides those characteristics which are listed in the patent.”

  White’s patent caused controversy in the world of plant breeding because it so completely cornered the market on a nontransgenic plant. Now, nobody could breed or produce a variety of annual bluegrass that exhibited any of the characteristics that a nice turfgrass would have, without paying a royalty to the patent holder. This raised animosity toward White, who, by the way, is one of the kindest gentlemen you’d ever want to meet. It inhibited his interactions with other researchers, particularly those at Penn State, who were also breeding annual bluegrass and who almost certainly would have soon released at least one variety if they hadn’t been hobbled by this patent. On August 2, 1999, David Huff, a Penn State researcher, went so far as to draft a six-page letter to the U.S. Patent and Trademark Office outlining the problems with White’s patent. Ultimately, however, the patent was not overturned, and on August 7, 2007, it had run its course and was not renewed. But this conflict brings to a head a larger issue. Is the ability to patent plants a good idea, and should the powerful utility patent be applicable to plants?

  The Science

  Plants could not be patented if they could not be produced in a way that ensured that the offspring plants would be the same as the parent plant. This is the main reason that plant patents only cover plants that are vegetatively propagated. Vegetative propagation, that is, asexual propagation using only one parent, ensures that all of the genetic material from the parent is present in the offspring. Since sexual propagation results in a mixture of genetic material from two parents, it doesn’t make sense to be able to patent a sexually reproduced plant. However, if enough breeding is done, most differences between offspring can be bred out of a population. Just as a Doberman Pinscher can be bred with another Doberman to produce a Doberman, so can a particular variety of wheat be bred with the same variety of wheat to produce that same variety of wheat. The offspring is sufficiently genetically similar to the parent to be protected by the Plant Variety Protection Act.

  One of the issues inherent with plant patents is that of deciding how novel a particular plant is.

  Utility patents are a bit of a different beast. They were not created with plants in mind, but plants have been found to be patentable by the higher courts. The DNA that codes for all of a plant’s unique characteristics seems custom made for protection by a utility patent. Specific chemicals have been patented for a long time, so it’s no surprise that specific sequences of DNA—which are really nothing more than very specific chemicals that can be transferred from one plant or animal to another—can be patented.

  One of the issues inherent with plant patents is that of deciding how novel a particular plant is. Someone at the patent office who is relatively unfamiliar with plants may have a difficult time making that determination. This unfamiliarity can lead to a problem called biopiracy, which can occur if a person patents something that is already used by a particular culture—for example, if someone decides to patent a nut that a tribe indigenous to South America has used as a food or dye for centuries. Such a case occurred in 1986 when a plant patent was awarded to Loren Miller for a purple-flowered Amazonian plant used by native tribes in their ceremonies. Miller claimed that the purple flowers and the medicinal qualities of the plant made it unique, patented the plant (using a plant patent), and began efforts to produce it. Further research by two groups, the Center for International Environmental Law and the Coalition for Amazonian Peoples and their Environment, concerned that a disservice was being done to these tribes, demonstrated that versions of this plant collected from the wild were very similar to what Miller had collected. This meant that Miller’s plant wasn’t really unique and so didn’t warrant a patent. The patent was overturned in 1999, but was then reinstated in 2001.

  Another example of supposed biopiracy is the case of Larry Proctor, who patented a bean native to Mexico. He bought some beans in Mexico, grew them, harvested their seed, and claimed to have invented them. He then patented these beans (using a utility patent, U.S. Patent 5,894,079) and proceeded to sue others who attempted to sell or distribute these beans. It took more than a decade before his patent was finally struck down.

  Government Policy

  From our country’s beginnings we have understood the importance of giving entrepreneurs a way to protect their inventions. Congress established the first U.S. patent system in its very first session in 1790, just one year after the Constitution was ratified. The basic standards for a patent, which still apply today, were established in the Patent Act of 1836 (which is, coincidentally, the year of the great patent office fire, when the patent office burned down and many of the previously filed patent
s were lost). Novelty and utility were the key requirements of the act at the time. The Supreme Court added a third requirement in 1851 in a ruling that stated that inventions must present evidence of a degree of skill and ingenuity (Hotchkiss v. Greenwood). Congress set forth the contemporary standards for meeting each of these requirements in the 1952 Patent Act, and specifically barred patents from being issued if the product would have been obvious at the time of creation to “a person having ordinary skill” in that particular field of knowledge. While the content of the law has not changed since then, Congress did create a new federal appeals court in 1982 to hear all patent cases, in an effort to create more consistent rulings. Lawsuits are a big part of the patent process, and over time, the courts have had as much to do as Congress has with the way patents are protected.

  The Plant Patent Act of 1930 provides patent-like protections for plants reproduced through asexual means, but it does not deal with plant varieties reproduced through seeds or tubers, such as potatoes. Plants that are reproduced through seed had to wait until 1970 and the Plant Variety Protection Act; those from tubers had to wait a bit longer, until the 1994 amendment to the Plant Variety Protection Act. This amendment created Certificates of Protection to protect plants that are reproduced sexually (from seeds) and plants from tubers. To receive certificates, plants must meet criteria similar to those for traditional patents: they must be new, distinct from other publicly known varieties, uniform (any variations are predictable and marketable), and stable in their characteristics. Certificate protections last for eighteen years.