By midcentury the official reasoning was moot. Advances in breeding had enabled seed producers to ensure that their plants would grow true to type, leading the industry to renew its efforts for protective legislation. Its first victory was the Plant Variety Protection Act, approved in a voice vote by a lame-duck session of Congress, on Christmas Eve, 1970. The act granted intellectual-property rights that were much like a patent, but it was tempered by concessions to those who continued to oppose the exclusive control an actual patent would have granted: farmers were allowed to save and replant seed from protected varieties, and researchers could use them in breeding their own plants. The real victory—the one the industry had been seeking for nearly a century—happened in 1980, when the U.S. Supreme Court ruled that life-forms could be patented if they were a new “composition of matter” produced by human ingenuity. That case concerned bacteria, but in 1985 the U.S. Patent Office extended the logic to plants. By the time this policy was affirmed by the Supreme Court in 2001, already 1,800 utility patents had been granted on plants, plant parts, and seeds.
The availability of this long-sought protection transformed the industry by solidifying the opportunity to treat seed as a proprietary technology. Already the promise of genetic engineering was attracting investment from international chemical companies and others whose experience lay more with developing industrial products than with breeding plants. Wielding this newfound, impenetrable intellectual-property protection, companies like Monsanto, Ciba-Geigy (now Syngenta), and Dow redesigned the business using a revolutionary metaphor: seeds were software. Genetics were improved almost surgically, with breeders altering DNA the way programmers rewrite code. The resulting corn, soybeans, and other commodities were modular components of a larger agricultural operating system, designed to work only with the company’s herbicides. Even some labeling began to take a play from Microsoft: the seller’s licensing agreement was printed on the back of seed bags in six-point font. Users didn’t sign it; as with a box containing a copy of Microsoft Office, they agreed to it by simply opening the package. Among other things, those terms specifically prohibited use in plant breeding.
Market analyst Phillips McDougall calculated that in 1995, right around the time the software metaphor began to take hold, the global seed business was worth $14.5 billion. By 2013 it had grown more than 250 percent, to $39.5 billion. Transparency Market Research, which calculates a similar figure for 2013, forecasts the business will grow to $52 billion by 2018. In this context, the patent office’s 1889 assertion that patenting the “plants of the earth” would be unreasonable and impossible sounds dated, if not naive. Seen through the lens of this new metaphor, patents make perfect sense. If seeds are software, then protecting them as intellectual property is a natural, even essential, requirement for their technological development. In a 2004 legislative study, the United Nations’ Food and Agriculture Organization explained that this encouraged breeders “to invest the resources, labour and time needed to improve existing plant varieties by ensuring that breeders receive adequate remuneration when they market the propagating material of those improved varieties.” In other words, innovation no longer grew out of sharing, it came from monopoly. “In the absence of a grant of exclusive rights to breeders,” the report concluded, “the dangers of free riding by third parties would be considerable.”
In 1997, as the laws of intellectual property had begun supplanting the ethic of sharing, a mild-mannered bean breeder named Tom Michaels also began thinking about seeds as software—but with radically different results. Michaels was struggling with the brave new world unfolding at his job in the University of Minnesota’s horticultural sciences department. Until recently germplasm samples had simply been mailed between colleagues with no more than a friendly note, just as the exserted-head broccoli seed had been. But Michaels began to see this tradition of open exchange being curbed by legal documents that restricted research and demanded royalties. He tripped on the new vocabulary, which stipulated conditions about “unmodified derivatives” and “reach-through rights.”
“If you’re in plant breeding, you know you can’t do it on your own,” Michaels told me. “But I remember thinking, If this is the direction we’re going, we all become islands. So what could we do to assure that we continued to work interrelatedly?”
During that time Michaels’s computer-savvy son was messing around with alternative operating systems for his PC. Through him, Michaels learned about Linux and other software that was free to be used, altered, and shared by anyone. Linux came with a license that turned the concept of licensing on its head: instead of restricting people from copying the product, it restricted people from restricting it or any of its offshoots. It marked the code indelibly as part of the commons.
One fateful morning in Minneapolis, Michaels awoke with a Linux-inspired epiphany: What if we did the same thing with our seeds? Just like hackers, he and his colleagues would make their germplasm “free” by attaching a license that kept it in the public domain. No one could patent or otherwise restrict it or its offspring. Over time, Jack Kloppenburg and others heard about the idea, and together they honed it into the shrewdly elegant concept of open-source seed.
When Michaels first presented his idea to a group of fellow bean breeders in 1999, it wasn’t greeted as a grand prophecy. Jim Myers was in the audience then and recalls that while he and others found it interesting, they simply didn’t feel a need for it. Intellectual property was on the rise, but utility patents were still rare in vegetable crops. There were, however, already more than 500 on maize and at least 250 on soybeans; today most germplasm of practical use for those plants is restricted as intellectual property, much of it by patents.
Because they comprise a smaller share of the world agricultural market, only recently have vegetables begun to attract the multinational investment and technological attention that commodities have had for decades. Also, because there are so many types of vegetables, and countless variations within each, they are much harder to blanket with intellectual property. Traded by gardeners around the world, vegetable seed still has a cultural identity—it is not yet simply software. Even within the industry, much of vegetables’ breeding, and control of the germplasm, remains in the public sector.
Kloppenburg sees vegetables as the realm where open source can take root. “Corn and soybeans don’t turn anybody on,” he told me. “Nobody eats corn and soybeans. But they do eat what our breeders are doing.” When he speaks with consumers about the open-source-seed concept, he asks them, “Do you want the same people who are breeding corn and soybeans to be making decisions about the stuff you buy at the farmers’ market? Or do you want Irwin’s beets and Irwin’s carrots?”
That Irwin is Dr. Irwin Goldman, the University of Wisconsin vegetable breeder in patent limbo with his red carrots. If Kloppenburg is the brains behind OSSI, Goldman is the conscience, as warm and sincere as Kloppenburg is intense. When asked a question, he sits with his head of curly gray hair tilted to one side, neck thrust forward, in a posture of really listening. When he answers, he often begins with, “That’s a great question.”
Curiously, despite his role as a founding member and unofficial vice president of OSSI, Goldman holds three utility patents on vegetables—two on beets, one on carrots. He explains that the patented vegetables are used to create industrial dyes and have little crossover with food plants. Plus, it was the university that sought the patents in his name. Still, Goldman offers the disclosure like a personal confession. His explanation for going along with it is that he was young and foolish, a new professor seeking tenure. At the time his only reference point was his grandfather Isadore, a poor Russian immigrant who had designed and managed to patent a unique barber coat that didn’t collect hair in its pockets. His family had always been deeply proud of Isadore. When Goldman found himself listed as the inventor of those beets and carrots, he flushed with the honor of this parallel achievement.
“But over time,” he told me, “the expe
rience of doing it made me realize what the implications of patents like those are. I asked myself, What would make me feel like I had made a contribution to the future—to a sustainable future?” After a hiatus during which he served as the college’s dean, he returned to breeding and devoted the rest of his career to developing germplasm that is “free and clear.”
Goldman agrees with Kloppenburg that vegetables are the most likely arena for OSSI to come to life. In his more hopeful moments, he envisions a food label alongside “organic” and “fair trade” that tells consumers their food is “open source.” But, he warns, if they are going to claim any significant amount of genetic territory, OSSI needs to act fast. Patents already cover everything from “low pungency” onions to “brilliant white” cauliflower, and a gold rush is taking place, with seed companies scrambling to claim what territory remains. Since 2000, lettuce alone has garnered more than 100 patents; an additional 164 are pending. When Goldman went online to show me Seminis’s red-carrot application, his search brought up another, newer application for a different red carrot that he hadn’t even known about. During the writing of this article, seven more applications for patents on carrots have been filed.
“Open source still has a chance with vegetables, but our window is only as long as the bottleneck at the patent office,” Goldman said. “It could be a matter of less than a decade before what has happened with corn happens with crops like carrots and onions.”
On a sunny August day, at a research station in Mount Vernon, Washington, the men and women of OSSI were arranged around a flotilla of conference tables. The group was almost comically homogenous in appearance: two dozen men with gray hair, glasses, and collared shirts; a dozen women, young and athletic, mostly graduate research assistants. Kloppenburg sat at the head of the tables in a linen shirt and a turquoise necklace. Goldman was at his side.
The group had convened in order to finally transition open-source seed from a clever idea to a legally defensible system. They were all clear on the basic principle—that, as Kloppenburg has written, “the tools of the master are repurposed in a way that . . . actively subverts the master’s hegemony.” But an hour into determining exactly how to do that, eyelids were drooping. The coffee machine began gurgling out refills. “OSSI has indeed found,” Kloppenburg would later write, “that the tools of the master are technically very cumbersome.”
A sweet-corn breeder named Adrienne Shelton made the case that the “political jujitsu” of open-source software wouldn’t work for seeds. When computer code is written, she explained, the author automatically gets copyright. That ownership allows the author to then take out a copyleft that says the material can be used freely. But plant breeding isn’t governed by copyright law, and by breeding a plant one does not automatically own it. One would need to patent the plant first in order to then claim the “patent left” of declaring it open source. “Most of the people that would be supportive of what we are trying to do as open source,” Shelton said, “probably would be very, very skeptical if we said, Well, first we have to patent it.”
An alternative would be to employ another of the master’s tools: contract law. No patent would be necessary. Instead, before receiving germplasm, a person would sign a license agreeing to the open-source rules. On the table in front of Kloppenburg lay a draft of such a license, but no one could suffer the legalese long enough to survive even the first page in that cold pile of paper.
Goldman tilted his head and looked at the license with concern. “I can’t imagine handing over a vial of seed and, oh, let me go to the copy machine and give you this seven-page, single-spaced document,” he said. “It seems incompatible with what we’re trying to do: the open seed, and then a license that if you want to understand, you need to ask your attorney.”
Discussion turned to the quick and dirty “bag tag” licenses modeled on the stickers that sealed boxes of software; by opening the box or bag, the user agrees to the terms. Could a similar mechanism be used to mark seed as open source? Would it be legally binding? No one was sure.
Kloppenburg directed the group’s attention to a series of slides on the screen behind him. They were advertisements for private security firms and other organizations that enforce plant-related intellectual-property rights in the United States, Europe, and South America. Many of the largest seed companies are partners, as are numerous land-grant universities, including the one where this meeting was being held. The Farmer’s Yield Initiative, or FYI, offered a toll-free hotline where callers could submit anonymous tips about people using patented seed illegally.
Heads shook in disbelief and disgust, but the point had been made: intellectual-property protections work because of deterrence; the ill-fitting metaphor of seeds as software was held in place by fear. None of the OSSI members I asked was able to name a plant breeder who had been sued for patent infringement or broken contracts, and yet nearly every one of them was willing to abandon material he or she had been working on for years rather than test how forgiving the intellectual-property holders might be. Later Bill Tracy, the sweet-corn breeder, put it bluntly: “If you fear the company, you’re not going to cross it and the patent works. If you don’t fear the company, it doesn’t work. It comes down to who has the most lawyers.”
Looking around the room, it was clear this was not the group with the most lawyers. They had had one, who drafted their open-source license pro bono. But the week before, she had stopped returning their calls.
After the meeting I spoke with Andrew Kimbrell, a public-interest lawyer and the executive director of the Center for Food Safety. He has led numerous legal challenges to plant patenting, and he certainly sympathizes with OSSI’s intentions. “In the midst of climate disruption,” he said, “having a diverse seed supply created through a robust public breeding program is a food security and national security issue. For that alone we should get rid of this patent issue and invest in public plant breeding.”
He advocated slower kinds of change: legislation to return to the days when farmers and plant breeders were free to use any seed as they wished; more legal challenges to puncture the precedent that leads courts to rule consistently in favor of intellectual-property protections. He even encouraged the basic, boring act of publishing research on plant breeding, since the most effective way to prevent something from being patented is to have documented that the thing already exists.
But the jujitsu that OSSI was trying to pull off he found “problematic” at best. “Just because you declare something open source doesn’t mean it’s off limits,” he said. “It could simply mean that you passed up your chance to get to the patent office.”
In the following months Kloppenburg, Goldman, and a few others began meeting weekly to try to salvage the idea and launch it, somehow, before another growing season slipped by. They spoke to half a dozen lawyers, who confirmed that the licenses wouldn’t work. They were advised to patent their seed. “I never wanted to hire lawyers,” Goldman told me, exasperated. “I don’t want to be in the business of tracking licenses. I just want to free the seed.”
The reason OSSI stumbled in trying to emulate computer programmers and open-source its seed wasn’t just naïveté with legal matters. In a way, the larger problem was the metaphor itself. Seeds are not software; they are living entities that grow and reproduce. Indeed, that’s the reason why the industry sought intellectual-property rights in the first place. But those protections can’t truly contain biology—seeds slip right through barriers made of words. If you want to reproduce a patented soybean, just lift one from a farmer’s field at harvest time and plant it in a pot. Without deterrence, a plant-utility patent is just an expensive piece of paper.
Even with a fleet of lawyers, chances are OSSI could never outsmart the intellectual-property system: normally patents and licenses need to last for only one generation of plants; they say the seed can’t be planted back, and that’s that. But open source was supposed to allow the material to proliferate, which means OSSI would need t
o make sure that its license accompanied every new generation of plant—an exponentially expanding demand. Enforcing that viral replication would be nearly impossible. Without it, the seed would go right back to the unprotected commons, where anyone could claim it and patent it. The fluid nature of seeds, their natural impulse to regenerate, is both the impetus for the open-source concept and its legal undoing.
In January the group drew up a new license. This time they dispensed with the legalese altogether and instead wrote from their hearts. At just three sentences long, it wasn’t much of a legal document; it would never stand up in court. Instead they would print it on the outside of each packet, just as Seminis does theirs, but with the opposite effect. “This Open Source Seed pledge is intended to ensure your freedom to use the seed contained herein in any way you choose, and to make sure those freedoms are enjoyed by all subsequent users,” it read. “By opening this packet, you pledge that you will not restrict others’ use of these seeds and their derivatives by patents, licenses, or any other means.”
Goldman toyed with the idea of also printing the pledge on slips of paper to be included inside the packet, like fortunes in a fortune cookie, to encourage people to pass it along. “I’m coming to see it more as a performance-art piece,” he told me brightly.
Despite his optimism, the group was admittedly disappointed. The goal had been to replace their defensive stance around intellectual property with a legal mandate. “Instead of just saying, Oh, please don’t patent these things, it’s not right,” Kloppenburg said, “we wanted a commons protected by law.” Now they were back to relying on the thin armor of ethics and morality for protection. They were back to slow change.
The Best American Science and Nature Writing 2015 Page 12
