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Open Source Seeds - how to fight the plant patents
Man, if you think software has it tough with the patents, just think that plants don't have copyright protection and it's hard to prove "prior art" when it comes to them.
In 1966, a breeder named Jim Baggett [...] set out to breed a broccoli with an "exserted" head, which meant that instead of nestling in the leaves the crown would protrude on a long stalk, making harvest easier. The method he used was basic plant breeding: Mate one broccoli with another, identify the best offspring, and save their seed for the next season. [...]
Most classical plant breeders will tell you that their work is inherently collaborative — the more people involved, the better... Hoping to advance its evolution by letting others work on it, he and Myers shared their germplasm (an industry term for seed) with breeders throughout the United States. One recipient was the broccoli division of Royal Sluis, a Dutch company that had a research farm in Salinas, California. Through the channels of corporate consolidation, that germplasm ended up with the world's largest vegetable-seed company, Seminis, which in 2005 was bought by the world's largest seed company, Monsanto. In 2011, Seminis was granted US Patent 8,030,549 — "Broccoli adapted for ease of harvest" [...] More than a third of the original plant material behind the invention was germplasm that Baggett had shared in 1983.
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Irwin Goldman, a professor at the University of Wisconsin, had been developing a red carrot for fifteen years when, in 2013, he learned that Seminis had an application pending for "carrots having increased lycopene content"-in other words, very red carrots.
Likewise, Frank Morton, a small-scale, independent plant breeder in Oregon, had finally achieved a lettuce that is red all the way to its core, only to find that the Dutch seed company Rjik Zwaan had received a patent on that very trait. Their cases are just some of many.
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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.
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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 to 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.
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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. 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."
