A Guide to Seed Intellectual Property Rights

The following guide was written by Paulina Jenney and adapted from her professional paper, “Keeping What You Sow: Intellectual Property Rights for Plant Breeders and Seed Growers,” submitted in May 2022 to the University of Montana.

Introduction

Over the last 150 years, much of the world’s plant genetic diversity in our food system has been lost, due primarily to the industrialization of agriculture and consolidation of power within the seed industry.¹

Emboldened by federal laws and legal decisions during the 20th century, major companies and other plant variety developers have tied up seeds and genetic traits with restrictive intellectual property claims, an arrogation of policy that had been conceived to spur innovation in plant breeding and increase the diversity of seeds available to farmers. Instead, these political and economic forces have created a market structure in which just four companies control 60% of the world’s seed stock.²

These companies have systematically prioritized crop traits that improve production—traits like uniformity, yield, and agrochemical resistance—at the expense of traits that strengthen plant varieties against environmental pressures—traits like diversity, regional adaptation, and low-resource use.

As the climate destabilizes, the predictable seasons, soil health, and water availability that once supported monoculture and industrial farming will continue to become more chaotic. A movement of independent seed companies, breeders, growers, and stewards are focused on maintaining and increasing seed biodiversity to create varieties that can thrive in the coming world. These projects require financial resources to maintain access to land, equipment, and labor. To recoup those costs, many people who seek to market seed, especially of new or novel varieties, are left to try to reclaim strategies in intellectual property rights (IPR)—the same legal mechanisms that have historically served to narrow the genetic diversity of our crops.

Because the application of intellectual property rights to living organisms is a relatively recent and ill-defined concept, both biologically and in its lack of legal precedent, there remains considerable uncertainty about how diversity-focused seed growers should approach the question of protecting the integrity of their seeds and their livelihoods in a changing legal and economic landscape. Much of the uncertainty around alternative intellectual property rights strategies for seed growers is because adapting traditional intellectual property systems, which are intended for immutable inventions, to living organisms has not been an easy task. As a result, Congress has experimented with a number of legal systems over the past century, resulting “in a confusing array of overlapping intellectual property regimes” that are difficult to navigate and unevenly applied.³

Even the term “IPR” is commonly used to refer not only to avenues for protection offered through the United States Patent and Trademark Office, but also for strategies that route through the USDA Agricultural Marketing Service, in addition to contract law and defensive systems designed by non-profit advocacy and community groups such as the Open Source Seed Initiative, seed banks, and exchange networks. Often the onus of deciphering the different intellectual property strategies and navigating the application process rests on the originators of the seed, many of whom have little experience or financial resources to confront the legal arena.

A goal of OSA’s program work is to confront the concentrated ownership of seed as a living, natural resource, which includes addressing consolidation of market, economic, and political power in the seed industry. We believe restrictive intellectual property rights on seed, such as utility patents, run counter to the spirit of patent law and stifle innovation, creating barriers to improving the availability and integrity of organic seed, as well as growers’ ability to adapt crops to changing climates and to conserve culturally important varieties.

Data Collection and Methods

In January 2020, OSA held a virtual listening session on “Seed Commons & Ownership,” during which seed growers from a range of backgrounds shared their questions and concerns. The session had over 150 people in attendance, a testament to the currency and importance of the topic across a wide cross-section of people who work with seed. Attendees represented a multitude of affiliations, from university plant breeders to home gardeners, independent plant breeders seeking to protect their varieties using IPR, to small farmers worried about inadvertently growing IPR restricted seeds. In this way, seed workers from seemingly opposite sides of the conversation were united by a common desire to improve the resilience of the food system. Participants frequently noted that the IPR conversations among farmers, breeders, farmer-breeders, and seed savers are “complex” and “nuanced.” In a post-session survey, one participant noted that they would like to see “specific examples (names of varieties, people, timeline, etc.)” that could illustrate the different strategies organic plant breeders and seed growers leverage to navigate the modern world of intellectual property rights. This reflects a need that has long been vocalized by the growers served by OSA, who have for years expressed confusion about the overlapping, seemingly contradictory array of intellectual property strategies and their actual impacts on breeding and seed saving work.

In 2021, OSA also integrated a module on seed sovereignty and intellectual property rights into their “Organic Seed Production” course, an annual, online curriculum offered to beginning seed growers for free thanks to a grant from the USDA Beginning Farmer and Rancher Development Program. Students in the course were asked to go through an application process that demonstrated a commitment to seed production as a serious practice or a livelihood. The course ran for six months and included modules on crop selection, variety maintenance, harvesting, and cleaning. The participants in the course and, by extension, the module on intellectual property rights, were more narrowly selected than those who participated in the January 2021 listening session, which was open to the public. During the module, participants were asked to populate a list of questions they had about IPR. A sampling of those questions includes:

How long has IPR been a thing? Who manages or oversees IPR? Does IPR apply to heirloom seeds? What are the consequences for violating IPR? How well is this working internationally? How does IPR function with Indigenous seeds and within tribal communities? How can we reward the time and energy of seed breeding without resorting to capitalism, ownership, and property?

The fact that there are significant and persistent questions about the role of IPR as they apply to seeds, even among seed producers, highlights the need for a resource that increases literacy around the topic in a format that is easy to read, understand, and put into practice.

Between February 2021 and February 2022, we interviewed 21 seed growers representing a variety of backgrounds in seed production, from backyard gardeners to keepers of local varieties, to university plant breeders, to owners of seed companies both small and large. Some interviewees had engaged with some form of intellectual property protection, and some had not. During each interview, we asked each participant what type of crop they grew, their perspective on intellectual property and seed marketing in general, and to voice any questions they still had about IPR, among other questions more specific to each individual. We were able to talk to less than half of those contacted for an interview, with the majority of people who declined to participate citing a lack of time as their reason for not agreeing to an interview. The sample size means that participants in this study represent a very limited cross-section of the vast and diverse community of people involved in organic seed work; still, this constitutes a good starting point for beginning to understand some common themes and approaches to IPR that people who work with seeds tend to have.

In this guide, you will find insights from those interviews, including special “Seed Stories,” in which a particular grower shares their experience and strategy for navigating intellectual property rights. You will also find answers to some of the more common questions that emerged from participants over the course of this research. Still, many questions remain about how to ethically market seeds in the modern agricultural landscape. In this way, while the guide attempts to answer some questions, it also raises many others. Many of the questions approached here do not have easy, clear-cut answers, and instead seek to provide a “toolkit” that consolidates as much of the current information available as possible into a single, searchable resource for the organic plant breeder or seed grower.

A note: this guide specifically addresses how IPR laws in the United States affect small-scale and agroecologically aligned seed growers working within the United States. While international and tribal laws pertaining to IPR play a significant role in the way that seed is traded across borders, and have potential to shape federal policy, investigating multiple legal frameworks is beyond the scope of this project. One particular opportunity for research that emerged during the latter parts of this project is to explore the way that tribal sovereignty might be leveraged to protect Indigenous seeds from encroachment by federally recognized IPR.

How this Guide is Organized

Chapter One provides a brief overview of the ascendance of intellectual property rights in the seed industry in the United States, and unpacks the problem at hand by describing the legal and economic decisions that led to its creation. This chapter also introduces the relationship between colonialism and intellectual property rights and the role of the USDA National Plant Germplasm System in conservation and breeding efforts. Noah Schlager discusses Indigenous seed keeping and how non-Indigenous people can engage with culturally important seeds.

Chapter Two explains the nature of utility patents and makes the argument that they are the wrong strategy to protect seeds and encourage innovation in agriculture for ethical and practical reasons. This chapter also explains the patent review process and the legal implications for growing patented seed. This chapter explores why, despite the incongruities, some companies still patent their seeds. In “Seed Stories,” Edmund Frost describes the impact utility patents can have on public breeding projects. This chapter also provides the reader with resources for searching and understanding the utility patent database.

Chapter Three answers questions about how to publish the existence of a variety in a way that can preempt restrictive intellectual property claims before they arise. This chapter explains the components of a defensive publication and how to leverage those publications to challenge a pre- or post-grant patent application.

Chapter Four defines intellectual property mechanisms which can still be utilized in ways that do not restrict seed saving or plant breeding, including Plant Variety Protection certificates, trademarks, and trade secrets. This chapter explains the time and resources implicated in each of these strategies. In “Seed Stories,” we hear from Jim Myers, a public plant breeder from Oregon State University, and Jason Cavatorta and John Hart, private breeders for EarthWork Seeds. Both stories depict the use of PVPs to recoup investment costs on novel varieties that are the result of focused breeding projects. Dave Oien of Timeless Seeds and Tessa Peters of The Land Institute share their experience trademarking varieties. In these stories, both Oien and Peters describe the potential benefits of trademarks that other IPR strategies might not offer.

Chapter Five breaks down the most popular iterations of contract law in plant breeding, which is often paired with the other, more formal strategies for intellectual property protection. This chapter covers Material Transfer Agreements (MTAs) as a mechanism for exchanging seeds for research, both by universities and seed banks, as well as how MTAs are leveraged in international seed collection and germplasm exchange, especially in collections involving Indigenous seeds. This chapter then describes the various forms of licensing contracts and royalty agreements used in the seed industry. Although the OSSI pledge is not so much a formal contract as it is a social one, this chapter also includes a description of the OSSI pledge, and a “Seed Story” from Craig LeHoullier and his reasons for using the OSSI pledge with the tomato varieties that emerge from the Dwarf Tomato Project.

Chapter Six provides an analysis of all of the interviews conducted for this resource, and uses their contents to support the themes that emerged from a previous OSA Intensive meeting on Seed Ethics. This chapter explores the various ways that plant breeders and seed growers from different backgrounds approach 1) transparency along the seed value chain, 2) ethical recognition of breeders’ and seed savers’ past efforts, 3) ethical compensation for breeders and seed growers maintaining the seed system, and 4) the importance of biodiversity as a goal for all people who work with and transact seeds.

Abbreviations

ABS	Access and benefit-sharing
AppFT	Application Full-Text and Image Database
AIA	America Invents Act
ASTA	American Seed Trade Association
BASF	Badische Anilin – und Sodafabrik (German agrochemical company)
CBD	Convention on Biological Diversity
CIAT	International Center for Tropical Agriculture
CPC	Cooperative Patent Classification
GE	Genetically engineered
GMO	Genetically Modified Organism
GRIN	Germplasm Resources Information Network
IPR	Intellectual Property Right
ITPGRFA	International Treaty on Plant Genetic Resources for Food and Agriculture
JPR	Journal of Plant Registrations
LGU	Land Grant University
MTA	Material Transfer Agreement
NPGS	National Plant Germplasm System
NSS	Native Seed/Search
OSSI	Open Source Seed Initiative
PatFT	Patent Full-Text and Image Database
PE	Patent Examiner
PPA	Plant Patent Act
PVP(A)	Plant Variety Protection (Act)
SARE	Sustainable Agriculture Research and Education
TKDL	Traditional Knowledge Digital Library
USDA	United States Department of Agriculture
USDA-ARS	USDA – Agricultural Research Service
USPTO	US Patent and Trademark Office

CHAPTER 1: How Did We Get Here?

The Ascendance of Intellectual Property Rights Over Seed

People have been breeding plants for over 10,000 years; yet, the application of intellectual property law to our seed system has only really been in effect for less than a century. During this century, advancements in plant breeding have evolved considerably, and federal policies have tried but failed to keep pace (see Figure 1: Seed and IPR History).⁴ This chapter explores the rise of intellectual property rights on seed in the United States and their effect on consolidation of power in the seed industry.

In August 1931, the United States Patent Office (USPTO) issued its first ever plant patent to a man named Henry Bosenberg for a “new and useful improvement” of a Van Fleet rose under the newly signed Plant Patent Act, which created intellectual property rights for the improvement of plant species. A number of inventors and plant breeders (Thomas Edison among them) supported the Plant Patent Act, arguing that such legislation would spur agricultural innovation.⁵ Ironically, Bosenberg was neither a plant breeder, nor had he invented anything new. Bosenberg had simply noticed an ever-blooming rose growing in his garden, a naturally-occurring anomaly borne of the Van Fleet variety, and increased its population through propagation. Still, through the Plant Patent Act, the USPTO ruled that Bosenberg could lay claim to the existence of this “new variety.” Almost immediately, the managing editor of the Journal of Heredity took issue with the patent, pointing out a number of “interesting problems,” the primary one being that Bosenberg had averred under oath “that he did nothing to originate the new form.”⁶ Still, it is likely that the USPTO viewed the application as valid because the plant was a unique anomaly among a relatively stable population, and it had the ability to be propagated and marketed. After all, the primary impetus behind the Plant Patent Act was to respond to complaints from the nursery industry, who encouraged lawmakers to curtail the “pirating” of novel varieties, whether they were “invented” or merely discovered.⁷

Prior to the passage of the Plant Patent Act, the USPTO was in charge of collecting and disseminating free seed to farmers, and farmers would then go on to develop improved crop varieties, adapting the seeds to their particular region through careful observation and selection.⁸ While this was useful for farmers growing produce, there was no compensation for the farmers breeding and producing new seeds. Conservative lawmakers and pro-industry leaders (united under the American Seed Trade Association) considered the USPTO’s seed program antithetical to interests of the nascent seed industry and campaigned for plant breeding to transition from a publicly supported science to private industry.^9,10,11 Thus, the spirit of open and free seed trade, which had proliferated for thousands of years, was effectively curtailed for the first time in the name of industry.

Initially, the Plant Patent Act was only designed to cover plants that reproduce asexually (like roses, some berries, and some stone fruit trees, which can be cloned), and excluded sexually produced (pollinated) plants like corn and soybeans. Because those plants relied on pollination, the Patent Office did not think that their seeds could produce genetically stable varieties.¹² The American Seed Trade Association disagreed and eventually lobbied for the creation of the Plant Variety Protection Act in 1970. The PVPA grants exclusive marketing rights to the developer of a new variety of sexually reproducing plants for 20 years as long as the new variety is “new, distinct, uniform, and stable.”¹³ The ASTA recognized that farmers could reliably reproduce non-hybrid seeds from one generation to the next and had no need to return to the seed company after buying from them once. Further, seed growers were able to market future generations of seeds without any of the research and development cost borne by the original breeder or seed company.¹⁴ Still, the PVPA made specific exemptions that allowed farmers to save seed from protected varieties for on-farm use. Further, under a PVP, breeders can purchase seeds from other companies for use in their own breeding programs as long as the result of their efforts is a new variety with at least one distinct morphological trait.

In 1980, the Supreme Court heard Diamond v. Chakrabarty, a case concerning genetically engineered microorganisms. The court ruled that anything “man-made under the sun” was eligible for a patent, including living organisms. However, Congress had already acknowledged, through the passage of the PVPA, that intellectual property for plant breeders necessitated specific exemptions to preserve the nature of plant breeding, which for millennia has relied upon seed saving and the exchange of seeds for breeding and research. Breeders claimed that these exemptions left their inbred and self-pollinated lines vulnerable to piracy and forced the USPTO to address their concerns in ex parte Hibberd, which held that a corn breeder could apply for a utility patent on a variety of corn that had increased free tryptophan levels. Hibberd further ruled that even breeders of self-pollinating and inbred crops could apply for utility patent protection.¹⁵ This meant that plant breeders could prevent other breeding programs from using their seeds for research, a ruling that circumvented the farmer’s exemption available in a PVPA. In addition, while plant patents and PVPs only apply to entirely new varieties, and expire after a certain amount of time, a utility patent can be granted for a certain color inherent to a plant, or a particular disease-resistant trait. Moreover, a company can renew a utility patent after 20 years by making minor modifications or updates to the original claims. The patent holder can then remove the original “technology” from the market, deeming it obsolete, and thus locking consumers into an infinite “technology treadmill” wherein they must constantly adopt the newest, patented seeds or else risk being less productive than those who do.¹⁶

From the beginning, many journalists and trade observers worried that the increased power of the seed industry to control seed reproduction would lead to consolidation, as big breeding programs could buy up or force out smaller, independent breeders, and severely curtail farmer-to-farmer seed sharing. Indeed, the companies most responsible for seeking and enforcing patents are ones with the largest percentage of market share.¹⁷ Today, just four companies control more than 60% of proprietary seeds worldwide.^18,19 Because those companies with the most financial resources are able to employ both the patent writers and the lawyers to defend them, the world’s genetic resources are being locked up in the hands of just a few decision makers—a far cry from the purported purpose of patents to spur innovation and diversity. Instead, independent breeders and seed stewards find the path to new varieties, and the means for protecting existing varieties, including heirlooms and those that hold cultural importance, increasingly narrowed. In the face of climate change and extensive monocultural production within our food system, a resurgence of interest in regionally adapted and heirloom varieties of seeds has raised significant questions about who should be granted ownership of seed. Also at issue is how those who have supplied seeds, either willingly or inadvertently, to breeders can and should benefit from IPR pertaining to those seeds.

Until very recently, farmers and seed keepers were the principal producers of new crop varieties. Then, in 1990, the rediscovery and application of Mendelian genetics in 1900 catalyzed “plant breeding” as a legitimate scientific endeavor, the point at which scientists began to claim authority over crop improvement.²⁰ However, the development and cultivation of food crops is a process, not an end result in and of itself, that has spanned the last ten millennia. As plant breeders and seed companies turn to heirloom and landrace seeds to develop new varieties, it is important to recognize the intellectual property of Indigenous seed keepers who developed those varieties through generations of careful selection.

National Plant Germplasm System and the Public Domain

When European colonists first arrived in the present-day United States, a vast and diverse system of Indigenous agriculture was already present on the continent. For several subsequent centuries, the exchange of seeds between Indigenous growers and settler communities depended largely on the individual.²¹ Around the turn of the 20th century, the United States government initiated a number of formal programs to support the expansion of settler-colonial agriculture in the United States.²² This initiative was supported by several congressional acts, including the Morrill Act of 1862 and the Hatch Act of 1887, which established the Land Grant University system and its attendant agricultural research mandate. In the late 19th century, every state in the country was given 30,000 acres of federally controlled land, with which they could fund or endow public institutions whose designated mission would be to study agriculture, science, and engineering. Of course, the transfer of “ownership” from the federal government to the states necessitated the violent dispossession of nearly 11 million acres of Indigenous land.²³ This was only one instance of the US government claiming Indigenous resources as part of the country’s supposed public domain.

The turn of the century also brought with it the development of the USDA Section of Seed and Plant Introduction, whose purpose was “to bring into this country for experimental purposes any foreign seeds and plants which might give promise of increasing the value and variety of our agricultural resources.”²⁴ Through this process, plant varieties that had been developed over thousands of years through traditional breeding methods were claimed as “public domain” for the advancement of colonial science, reflecting the dominant global intellectual property structure in which people of color produce raw materials and white researchers “refine” it for sale.²⁵ Since 1898, the US has acquired over 600,000 different plant accessions from seed growers all over the world, representing 14,208 species, including “nearly all of the crops of importance and interest to US agriculture.”²⁶ Today, this collection is housed under the National Plant Germplasm System (NPGS), whose stated mission is to “safeguard and utilize plant germplasm (genetic raw material), associated genetic and genomic databases, and bioinformatic tools to ensure an abundant, safe, and inexpensive supply of food, feed, fiber, ornamentals, and industrial products for the United States and other nations.”²⁷ The NPGS is a critical source of germplasm for nearly all plant breeders in the US.

The USDA-ARS GRIN

The NPGS is managed by a computer database called the Germplasm Resources Information Network (GRIN). The GRIN allows users to search available accessions by name, country of origin, or traits mentioned in the accession description. Anyone can access seeds from the GRIN for free, so long as they are requested for bona fide research or education purposes. According to the US National Plant Germplasm System Distribution Policy, seeds from the GRIN can be used for variety trials and breeding projects that might result in a marketable product, but cannot be marketed themselves, used for home gardening, or requested for any purpose that might directly compete with commercial seed producers.²⁸ Because the 21st century has been marked by increased privatization of seed in the United States and a dramatic loss of diversity in favor of high-yielding monoculture—an unfortunate consequence of its own invention—the GRIN is an important repository for plant genetic diversity, preserving seeds that would have otherwise been lost to industrialization. OSA’s 2022 State of Organic Seed reports that the GRIN is the single most important source of germplasm for public breeding projects.²⁹ The collection also houses, albeit ex situ, culturally important seeds for Indigenous communities that have otherwise been dispossessed of their land and cultural resources.³⁰ Despite its usefulness, a problem of concern is that the varieties that result from breeding projects that use GRIN accessions can then be patented in a colonial process that effectively created a “public domain” and then closed the doors to any derived benefits behind them. Plant breeders who access the GRIN should remember that seeds in this collection were obtained during a century that unilaterally disregarded the intellectual property rights of the communities from which they originated. In the next chapter, we elaborate upon these and other issues inherent to the current patent system for seeds.

CHAPTER 2: What’s Wrong with Patents on Seed?

What is a Utility Patent?

A patent is a right that is conferred upon an inventor that grants them exclusive commercial rights to produce and use the new technology. There are three different types of patents granted by the United States Patent and Trademark Office (USPTO): design patents, plant patents, and utility patents.³² While design patents only pertain to the ornamental aspects of an invention and not their function, and plant patents only refer to asexually reproducing, non-tuberous plants, utility patents can claim “anything man-made under the sun.” About 90% of all documents published by the USPTO are utility patents.³³

To satisfy the requirements of a utility patent, the invention in question must demonstrate the following:³⁴

Subject matter: “Any process, machine, or composition of matter, or improvement thereof” (35 U.S.C. § 101).

Novelty: The invention is not already described in a printed or online publication, offered for sale, or demonstrated publicly (§ 102).

Non-obviousness: The invention is not “obvious” when existing prior art is combined (§ 103).

Enabling disclosure: The invention is described in sufficient detail to allow a person reasonably skilled in the art to recreate the breeding process.

In the case of utility patents on plant varieties or their traits, especially those that have been traditionally bred, the question of novelty or non-obviousness is not always cut-and-dry.

Both claims involve a search for prior art. Prior art is evidence that the invention in question does not already exist or is not the obvious outcome of combining inventions that already exist. Plants that exist in nature can be considered prior art, as can traditional knowledge of a plant or its uses. Written records of an invention’s existence, such as sales receipts, blog posts, forums, podcasts, news articles, and journals articles can also be included in the scope of a prior art search. Proving the true novelty of a plant or genetic trait is a task that, if performed thoroughly, would necessitate innumerable queries of nature and literature.

Discovering a gene isn’t the same thing as an invention. I think we need to break that down in the mentality of the nation and the world. Plant breeders are not inventors. They are noticers of observable phenomena.

–Tessa Peters, The Land Institute

Utility Patents Pose Challenges to Breeders and Growers

Theoretically, the purpose of the patent system is to encourage competition and innovation in the marketplace. However, plants do not fit perfectly into a system designed to protect inventions for several reasons. First, unlike true inventions, new plant varieties are not engineered from scratch; like humans, they are the living result of millions of years of continued adaptation to their environment. Even the introduction of genetic engineering techniques are limited to material already found within the biological genome. Second, seed-bearing plants reproduce naturally and require no capital input to do so. Unlike a car or a computer, the person who holds one seed can soon hold thousands, a capacity that inherently defies the aim of the patent system, which is to restrict the reproduction of an invention to the person who originated it. Finally, the patent system expressly requires an “enabling disclosure.” This requirement becomes particularly clouded over when companies exclusively cite proprietary inbred lines, or otherwise obscure the breeding history of a variety by referring to its predecessors by number rather than name.³⁵ Without a description that truly “enables” the public, patented seeds and their traits become siloed off from the rest of the seed pool, restricting the exchange of seeds that produces the wide diversity and regionally adapted crops humans have enjoyed for thousands of years.

Twice Congress developed specific intellectual property protections that acknowledged these inherent incongruities and created alternatives to the patent system: first with the passage of the Plant Patent Act and then the Plant Variety Protection Act. The PPA only covers asexually reproducing plants, and the PVPA expressly permits farmers to save seed for on-farm use and breeders to use seed for research and breeding. When Diamond v. Chakrabarty endorsed the application of utility patents to a genetically engineered bacterium, a decision that quickly was applied to plants and their progeny, genetically engineered or not, the court blatantly disregarded and overruled Congress’ previous acknowledgment that seed-bearing plants are not suitable for intellectual property claims under the patent system.

In the years following the 1980 Diamond v. Chakrabarty decision, utility patents on plants have been used as a mechanism to fuel the consolidation of power in the seed industry, a phenomenon that has resulted in an erosion of genetic diversity and a disregard for traits essential to a sustainable food system, especially for staple crops like corn and soybeans, where IPR-protected varieties make up a majority of the marketplace.³⁶ As corporations consolidate and their direction becomes increasingly driven by shareholders, traits that prioritize taste, nutrition, resilience, and soil health are lost to those that increase profits—traits like uniformity and high yield.^{37, 38} Seed companies use genetic engineering to prioritize resistance to herbicides and other pesticides, which are often patented and marketed by the same companies that sell the seeds that depend on them. Patents are also used as a lever to pry important genetic and cultural heritage from communities, often in direct violation of patent law’s novelty and non-obviousness requirements, a form of cultural violence known as biopiracy.

What is Biopiracy?

As discussed in Chapter 1, the current political and economic structure of the United States commodifies knowledge through intellectual property policies that are complex, expensive, and reward only a narrow definition of “innovation”—a definition that falls within the constraints of Western science.³⁹ Under a systemic colonial regime, intellectual property rights are used to “expropriate knowledge” and define a category of people as “nonexperts, especially people of color” who are excluded from being considered legitimate holders of intellectual property.^{40, 41} The privatization of Indigenous knowledge is also known as biopiracy, or bioprospecting. Indian seed advocate Vandana Shiva has written extensively about colonial theft of plant varieties, such as the RiceTec, Inc. patent awarded for basmati rice and the W.R. Grace patent on neem, a natural pesticide, both of which have been used in Indian agriculture for thousands of years. These patents curtail the ability of the Indian people to control the sale of their own plant material.⁴² Domestically, in 1999, Nor-Cal, Inc. received a patent on an improved variety of wild rice, a diet staple for the Ojibwe people in Minnesota.⁴³ Indigenous activist Winona LaDuke asserts that such patents constitute a threat to the tribe’s ability to control their food system, as cross-contamination of patented varieties could prevent the Ojibwe from their traditional harvests.⁴⁴ These examples show that utility patents can be used to legally reinforce colonial oppression.

Further, Indigenous knowledge typically considers seeds to be living relatives, and while Indigenous cosmologies are not monolithic, many tribes believe that seeds are not to be owned, sold, or commodified. This poses an additional paradox in which keepers of traditional agricultural varieties might have to choose between claiming “ownership” and restricting access to seed to prevent a foreign entity from doing so first. Andrea Carter, a member of the Powhatan Renape Nation and Agricultural Outreach and Education Manager for Native Seeds/ SEARCH, has described the double bind in this way: “It’s almost a different perspective that you have to take on: the colonized way of thinking that you can own the seed to protect your seed. What’s tricky is that it’s antithetical to a traditional or Indigenous way of looking at seed of any life, but it might be necessary for protecting it.”

For this and other reasons, chief among them that it is unethical to claim ownership of life, and that patents allow their owners to claim “ownership” of seeds by restricting others from saving them, Organic Seed Alliance does not support the utility patenting of seeds, plants, and genetic traits. Other forms of IPR are more suitable for providing protections and royalties to developers of varieties. In other words: Utility patents are the wrong tool for “protecting” seed. Indeed, the consequence of utility patents is quite the opposite—utility patents put the diversity and viability of our seed commons, and our ability to co-evolve with our food crops, at risk.

Why Do Some Companies Patent Seeds They Don’t Plan to Defend?

Although the express aim of the utility patent system is to allow the inventor of a product to establish market presence by restricting its use by others, some seed companies that hold utility patents on seeds would not be averse to other breeders using that material, according to breeders interviewed for this resource. Instead, a major reason why some seed companies patent seeds is to simply increase the value of their portfolio. If one company is using exclusive access to quality germplasm to increase the value of their brand, other companies have to follow suit to remain competitive. For example, Emily Rose Haga, a former breeder for Johnny’s Selected Seeds and the former executive director of Seed Savers Exchange, said that she has been told that some companies will patent seeds to show value to shareholders.

“It’s a way to say look at us, we’re innovating. We’re ahead of the curve. Whereas they don’t intend that not to be useful to another plant breeder, or maybe they’re willing to share it, but with royalties,” she said. For this reason, it is worth contacting a breeder or patent holder directly to ask about using their seeds in a breeding project. Indeed, Haga added, another reason she’s heard some breeders apply for patents is not to restrict their use at all, but rather to prevent someone who would from patenting the variety or trait first. “It’s sort of a mind twist, saying, well, I’m going to seek intellectual property rights so that somebody else doesn’t seek the intellectual property rights and prevent other people from using this…It’s just kind of an example of where we’re at as a seed community.”

Seed companies also use patents as bargaining tools to access other patented material. Adrienne Shelton, a plant breeder for Enza Zaden, describes the negotiation:

As a lettuce breeding company, there are a couple of disease resistances that have to be in our varieties in order for our growers to be successful. One of them is downy mildew resistance, of course, which continues to be a problem. And then another important resistance is Nasonovia (aphid) resistance. One of the reasons that we are patenting our varieties is that our competitor company Rijk Zwaan, who also develops lettuce, has patents on Nasonovia resistance.

Adrienne said Enza Zaden agreed to trade their patent for downy mildew resistance to Rijk Zwaan in exchange for access to their Nasonovia-resistance trait. “Because we had a patent and they had a patent, we then essentially agreed to share,” she said. “So all of Rijk Zwaan varieties have the full downy mildew resistance and Nasonovia resistance and most of ours have both of them as well, even though we don’t have the patent for one of those. Without those resistances, we can’t compete in the large lettuce market in California.” By obtaining the patent on a desirable trait, Enza Zaden was able to leverage their access to “unlock” other essential traits for their breeding work. In some ways, this exchange highlights the inability of the patent system to promote innovation; instead, it forces companies with adequate resources to buy in and excludes the rest.

Can I Get Sued for Growing Patented Seeds?

Restricting access to seeds is one way the patent system works to narrow crop genetic diversity. Ironically, patented seed also has the potential to inadvertently contaminate farmers’ varieties whose traits are carefully preserved and whose growers do not have the financial resources to defend against accusations of patent violations. Several seed growers interviewed for this resource, especially those who work with Indigenous, local, or culturally important varieties specifically mentioned not being as much concerned about the patenting of their varieties by other seed growers, but rather of genetically engineered and patented traits contaminating their culturally important crops through cross-pollination and genetic drift.

It seems unlikely, despite a persistent myth to the contrary, that a farmer could be legally liable for growing patented seed due to accidental contamination, or “genetic drift.” In 1998, Monsanto famously sued Canadian farmer Percy Schmeiser for growing Roundup Ready® canola in his field, which Schmeiser claimed had drifted onto his fields by accident. However, the court eventually determined that Schmeiser had intentionally selected for the Roundup Ready® trait, which may have indeed drifted into his fields through cross-pollination, by spraying his entire field with the herbicide, saving seeds from the plants that exhibited the resistant trait, and planting the resistant seeds the following season. The court ruled that Schmeiser was guilty of patent infringement; however, he was not made to pay any form of restitution, as Schmeiser had not sprayed the second-generation crop with Roundup and Monsanto could not prove that he had financially benefited from growing canola with the patented trait. It could be argued that Schmeiser should have been ethically permitted to save and grow whichever seeds he so chose; legally he was prohibited from knowingly saving and growing seeds with patented traits.⁴⁷ At the time of the trial, Monsanto had publicly committed to never “exercise its patent rights where trace amounts of [its] patented seeds or traits are present in a farmer’s field as a result of inadvertent means.”⁴⁸

Still, this assurance does little to resolve the very real concern that patented GE seeds might incidentally contaminate culturally important crops, thus altering their composition in detrimental ways. One Indigenous grower interviewed said:

I am very concerned. I’m very concerned, because I have a feeling that there are elements of ancestral varieties of seed that are already within patented seed, and that if some of the seed that I’ve grown with was tested, it would have trace amounts of that even though the engineered seed came from, you know, that particular ancestral variety.

I know this one grower in particular, whenever he sees a different color pollen, or a different color expressed within his corn, he immediately plucks it out and burns it. We also shouldn’t have to do that. Because even though that particular trait is expressing itself, there’s still ties to our ancestral seed within that same kernel. So it’s hard and heartbreaking.

In an interview, traditional seed grower Stevan de la Rosa Tames, who grows in a rural community in Sonora, Mexico, mentioned that his isolation from other seed growers has largely served to protect the varieties he keeps from cross-contamination by genetically engineered traits; however, that isolation also means losing potential diversity:

I feel spoiled or privileged or lucky in that I landed in the place that I did. At least I see it that way because I don’t have to deal with big ag contaminating me in different ways. The nearest industrial agriculture is a six-hour drive from here. My neighbors are not all growing similar stuff that could get crossbred. And I mean, it’s good for keeping the seeds that I’m growing pure, but I know that I’m also losing out on other seeds that my neighbors might be able to have, on having that community to do it in, which would enrich the whole process.

So while Monsanto might not sue growers who are found to have incidentally contaminated crops, the burden of avoiding cross-contamination still creates undue consequences for seed growers.

There might not be evidence that Monsanto would sue farmers for trace amounts of inadvertent GE contamination; however, the company has a long track record of suing farmers for patent infringement using tactics that many deem invasive and coercive. According to the Center for Food Safety, “As of December 2012, Monsanto had filed 142 alleged seed patent infringement lawsuits involving 410 farmers and 56 small farm businesses in 27 states,” resulting in awarded sums that totaled over $23 million.⁴⁹ In 2018, German chemical and pharmaceutical company Bayer acquired Monsanto, the massive value of the company and its patents further fueling consolidation of power in the seed industry.⁵⁰ While to our knowledge, there have not been recent reports on the number of patent lawsuits from the company post-merger, it is reasonable to assume that the conglomerate still pursues investigations on potential patent infringements. Fliers recently published by Bayer include language that encourages farmers to anonymously report “potential seed compliance matters.” It is also probable that during the height of its litigations, Monsanto was attempting to publicly demonstrate the consequence of saving seed in violation of patent laws while the extent to which they could be defended was still unsettled. Over 20 years have passed since the Schmeiser case, and the courts since have affirmed the power of patents to restrict seed-saving practices. Perhaps any conventional farmers who were once accustomed to doing so have now been soundly dissuaded.

More recently, German chemical company Badische Anilin und Soda Fabrik (BASF) sent out a letter to regional seed companies in the United States that made broad claims about plant varieties and genetic traits covered by their patents. Titles for the patents listed included “drought tolerant plants,” “onions with high storage ability,” and “seedless fruit producing plants.” The letter warned recipients, some of whom had never even purchased BASF seed, that the unauthorized use of “germplasm covered by one or more of claims” would be a violation of its intellectual property rights. Further, the letter claims that using the traits in the listed pending patent applications would be a violation of the company’s IPR, which is untrue as patent applications are not defensible until they are granted. The letter used this assertion to encourage seed companies interested in germplasm listed to request non-exclusive licenses in order to use the claimed technology.

It seems that the goal of the letter, which BASF affirmed it sends annually to a “large number of US seed companies,” is not necessarily to prosecute seed producers who may be growing plants with the referenced traits. Instead, it seems aimed preemptively at intimidating small seed producers away from seeds and traits over which they claim ownership—a much less expensive endeavor than enforcing patent compliance through litigation.⁵¹

How Do Problematic Patents Get Granted?

If patent applications have to go through a vetting process that includes a search for existing similar inventions, the question arises: How do patents on traditionally bred crops, whose lineage comes from the public domain and whose traits are already well-documented, get patented in the first place? Although the patent review is a formalized process, it is still conducted by humans and is subject, largely, to human discretion.

When a patent application arrives at the USPTO, it is delivered to one of nine Technology Centers, each of which specializes in reviewing applications relating to specific subjects. Each Technology Center is further divided into Groups, which are then divided into Art Units, which consist of about 12 patent examiners each. Group 1660, for example, deals with “Plants” and “Multicellular living organisms and unmodified parts thereof and related processes.” Patent examiners (PEs) usually have an advanced degree in the field pertaining to their specific art unit. Once a patent application has been assigned to a particular patent examiner, they design the prior art search, which might include consulting other patent examiners or staff at the Scientific and Technical Information Center, a library like resource that can help patent examiners locate examples of prior art. According to the Manual of Patent Examining Procedure, each patent examiner must search domestic patent databases, foreign databases, and non-patent literature (which can include journals, internet searching, and even social media posts) to determine whether the invention in question is truly novel and nonobvious.⁵⁵ Still, each patent examiner develops their own process for conducting the prior art search, and there is no list of required resources the patent examiners must search in each examination. Instead, the comprehensiveness of the prior art search varies highly depending on the patent examiner conducting the search.

As noted in Chapter 4, designing a prior art search that adequately investigates all possible avenues for evidence of a plant or trait’s existence is, at the outset, perhaps an impossible task. In addition, the patent office is consistently backlogged in such a way that patent examiners are incentivized by the number of applications they are able to process. On average, a patent examiner spends only 19 hours reviewing a patent application, including the search for prior art.⁵⁶ More experienced examiners spend less time on each patent; each job promotion for a patent examiner results in a 10-15% decrease in the number of hours the USPTO allocates them per application.⁵⁷ Perhaps as a result, examiners with more experience tend to cite fewer instances of prior art in the application review process. They are also more likely to grant patents.⁵⁸ In sum, examiners are rewarded for spending less time on the patent review process, resulting in less comprehensive reviews of prior art.

How Do I Know if My Seed is Patented?

Until recently, the only way to access the USPTO database directly was to use its legacy search system, the USPTO Patent Full-text and Image Database (PatFT); however, the PatFT was notoriously difficult to navigate and posed a barrier for seed growers who wanted to know how patents affected the crop they worked with. In fact, even many patent librarians opted instead to use the European database Espacenet, which has better search functions and an easier-to-navigate user interface. Patent databases around the world often list patents that have been granted by other countries’ issuing offices, and individual foreign patents are searchable by their “country code,” which precedes the patent number. Today, for most cursory patent searches, Google Patents is the simplest way to determine if a variety or trait has been patented.

Google Patents allows someone to search by keywords as well as by inventor name. Yet, keep in mind that even if the variety doesn’t appear on an initial search, it still might be under patent protection. For example, although Aerostar lettuce was released by Vitalis Organic Seeds, a search for “Vitalis” returns no results; instead, the patent’s inventor is listed as Monia Skrsyniarz, and the assignee is Enza Zaden. A patent assignee is an individual or company who has ownership interest in a patent. In this case, Enza Zaden owns Vitalis Organic Seeds, so Enza Zaden is the patent’s assignee. Due to the current rate of consolidation in the seed industry, it is sometimes difficult to ascertain whether the seed sold by one company is actually owned or patented by a larger, parent corporation. For this reason, it is also challenging to aggregate data on the number of patents that are held by specific companies or by specific breeders.

To search for all new or pending patents of a specific crop type, it is also possible to search patents by their Cooperative Patent Classification (CPC).⁶⁶ The CPC was developed jointly by the USPTO and the European Patent Office. The CPC system divides subject matter into nine sections denoted by the letters A-H (and Y for emerging technologies), which are then further divided into classes, subclasses, groups, and subgroups. The proper nomenclature for new seed-bearing plants for example is “A01H 5/ and 6/.” In this case, Section A refers to Agriculture, which is further divided into Class 01, for all utility patents relating to agriculture, forestry, animal husbandry, hunting, trapping, and fishing. Subclass H houses all patents relating to “new plants or non-transgenic processes for obtaining them.” Groups 5/ and 6/ refer to angiosperms, i.e. flowering plants, which are classified in group A01H 6/00 according to their botanic taxonomy and in group A01H 5/00 according to their plant parts. To find all utility patents on carrots, then, one could search by the CPC “A01H 6/068.” In 2022, the USPTO launched a new online search tool called PubSearch, designed to replace the legacy PatFT and its counterpart for pre-grant applications (AppFT). The new PubSearch tool allows users to search both newly-granted patents (issued every Tuesday) as well as patents that are still in the pre-grant phase (issued every Thursday). Searchers can search by CPC, inventor, or other keywords. Searching by crop type could be useful for plant breeders or seed growers who work with a specific crop and would like to monitor new patents that might affect breeding projects. For more information on how this information could be used to prevent or challenge future patents, see the next chapter.

CHAPTER THREE: How Can I Prove My Seed Exists?

What is a Defensive Publication?

Understanding how to navigate the USPTO can help seed growers and plant breeders protect existing seeds and challenge patent claims based on prior art. Seed stewards can establish their varieties as prior art in the public domain by creating what’s called a “defensive publication.” The goal of this strategy is to invalidate the “novelty” claims of a patent application by publicly documenting proof that a variety and its traits already exist.

In 2019, Vermont Law School researchers Cydnee Bence and Emily Spiegel published A Breed Apart: The Plant Breeder’s Guide to Preventing Patents through Defensive Publication. According to the guide, which is incredibly comprehensive, a defensive publication only requires that a person document their invention in a “physically accessible document that has been widely disseminated.”⁶⁷ This means that anyone with knowledge of a novel variety and the means to document and publish prior art could put that variety in the public domain. If the claimed invention was in public use, or described in a printed publication before the filing date of the patent application, the application’s claim would be invalid. This is a crucial strategy, especially for seed growers in countries and cultures that have little interest in positively protecting their plant varieties through other, more formal protections, or do not have the financial resources to apply for and maintain them.⁶⁸

The practical ability of a defensive publication to prevent someone from patenting a plant variety, however, is not guaranteed. For starters, a patent examiner reviewing a plant patent application would have to be able to actually find the defensive publication before the patent is awarded, an event not guaranteed given the immense scope of material that would need to be included in an effective search for prior art. Often, the only defensive publications usually noted by patent examiners are disclosed by the applicants themselves who are legally required to document instances of prior art they are aware of, but have no incentive for searching them out.⁶⁹ In addition, for the publication to be considered prior art, every element of the application’s claim must be captured in a single publication.

In addition, the publication must be enabling; in other words, it must include a description of the method for producing the variety as specific as that which is claimed in the patent application. For example, if the application claims the crossing of two specific parent lines, the defensive publication must include the same. If the claim is so broad as to describe any plant displaying a certain phenotype, then the prior art can be equally broad, including examples of plants that exist in nature. Robin Kelson, an intellectual property attorney and the founder of the Free the Seeds! fair, encourages people to be as specific as possible when crafting defensive publications. However, she acknowledged, one potential pitfall for this strategy is that for some, if the publication were to truly be “widely disseminated,” it could alert others to the existence of certain germplasm or desirable genetic crossings and explain how to replicate them. Successful defensive publication, therefore, requires the patent examiner to capture the publication in their search for prior art before a competing company can beat them to it. Still, according to A Breed Apart, a defensive publication, even if initially overlooked in the prior art search process, may be useful as evidence in a lawsuit and may protect the seed grower against allegations of patent infringement. This chapter provides a brief overview of where to find and publish defensive publications and examples of how they have been leveraged to challenge problematic patents.

Where Are Defensive Publications Published?

While a defensive publication could be published through any venue available to the public, there are certain publications that specifically register new plant varieties.

The Journal of Plant Registrations (JPR) is a peer-reviewed publication of the Crop Science Society of America. The JPR permits plant breeders to publish research describing new and novel plant varieties, as well as other innovations involving germplasm, inbred lines, and genomic populations. Varieties that are published in the JPR are often described as being “publicly released,” and the registration of plant genetic resources requires that the breeder also deposit seeds of the variety into the USDA-ARS National Laboratory for Genetic Resources Preservation prior to publication. These seeds are generally available to the public. In 2004, the JPR updated its policy to allow registered varieties to be concurrently protected by either patents or PVP certificates so long as the material in question is available under some terms during the period of protection and that the registering authors assume responsibility for its distribution during that time.⁷⁰ For example, a search of the JPR reveals that last year, plant breeders from North Dakota State University registered a new variety of black bean with bean rust resistance named “ND Twilight,” which has also been filed for PVP protection. During the first five years of its release, the breeders offer “small quantities of seed for research purposes,” which is available by contacting the corresponding author of the article. The authors simply state that if the variety is used for breeding or development purposes, “appropriate acknowledgment of the researchers and institutions responsible for development of this cultivar would be greatly appreciated.”⁷¹ Publishing in the JPR, with or without a PVP, precludes the ability to associate the variety with other forms of restrictive licenses. (See Chapter 5 for more on this.)

While the JPR does provide a platform for plant breeders and researchers to defensively publish the existence of a new or novel variety, the implied rationale for doing so is to promote their use for research by the public. In this way, perhaps the most widely referenced venue for publishing the existence of plant varieties excludes those who wish to protect their varieties as “prior art” but do not intend for the seeds to be publicly available.⁷² In addition, since the journal is limited only to varieties that are new or novel, seed growers who are keeping traditional varieties are not able to submit their varieties for registration, and thus, they are as yet unable to protect their varieties by defensive publication via scientific literature.

There are other examples of defensive publication databases that have made more concerted attempts to establish a variety as “prior art” without making the information available to the general public, and which accept traditional plant varieties. For example, the Traditional Knowledge Digital Library (TKDL) was started in India in 2001 as a collaboration between the Council of Scientific and Industrial Research and the Ministry of Ayurveda, Yoga, Naturopathy, Unani, Siddha, Sowa-Rigpa, and Homoeopathy.⁷³ The library is intended to serve as a repository of traditional Indian knowledge, especially in relation to plants and Indian systems of medicine. According to the TKDL, the library’s intention is not to restrict access to traditional knowledge, but rather to prevent wrongful patents due to the lack of published prior art about a particular plant or knowledge of its use. Neither is the intention of the library to disseminate information about traditional knowledge to those who could appropriate or commodify its transfer or subject the library to possible misuse: the library is available only to approved international patent offices, and patent examiners who access the TKDL must sign a non-disclosure agreement and cannot reveal the contents of TKDL to any third-party unless it is necessary for the purpose of citation. At the time of this writing, the TKDL claims that 246 patent applications have either been set aside, withdrawn, or amended based on the prior art evidence present in the TKDL database.⁷⁴ Other examples of traditional knowledge databases include the Peruvian Registro Público Nacional, which is not accessible to the public, and the Korean Traditional Knowledge Portal, which is.⁷⁵

Over the past several years, OSA has hosted discussions about whether a “plant prior art” repository of this type would serve as a more democratic avenue for defensive publication and a means to establish plant varieties and their associated traits as prior art that might otherwise be subject to privatization and patenting. OSA’s listening sessions involved outreach to over fifty identified stakeholders, including native seed keepers and seed keeping organizations, universities, small regional seed companies, and other allied seed growers. At present, it has been determined that a repository of this kind is not in the best interest of those whom it would most directly be designed to serve. In addition to concerns about potential usurpation of the database for commercial use, other issues raised include: the time and energy maintaining the library would require; the potential for gatekeeping by whomever was conferred the task of accepting and categorizing accessions; which individuals or communities would decide if a widely important crop would be added; and the question of whether such a database would be consistently consulted by patent examiners who are already overworked. A more ontological concern is that seeds are constantly evolving, and that listing a seed in a repository would only capture a small cross section of the variety’s history and place within its environment. Many session participants felt that the amount of energy and effort required to maintain a truly representative database would be better directed toward opposing the system that would require such information to be claimed in the first place. In the words of one seed grower:

Indigenous communities have totally different belief systems, so what might be appropriate for one community wouldn’t be for another. Would the database ever expire and release information to the public domain? Why perpetuate the system? In my community, we don’t believe that we have authority over seeds—they are living entities that are free to move. Seeds that we identify as having a certain name also exist in neighboring communities. That opens up the question of who has a bigger claim to the seeds and the authority to decide whether or not a seed is entered in the public domain.

Can I Challenge a Pending Patent Application?

In 2011, the America Invents Act (AIA) made significant changes to the search for prior art. Previously, US patent law adhered to a first-to-invent system, under which no prior art would be considered if it was published after the date of the claimed invention. All patent applications filed after 2013 are now considered under a first-to-file system, which means that prior art published after the supposed “invention” of the thing in question, but before the application is filed, could invalidate the patent. The AIA also made existing case law a part of the official definition for prior art, expanding it to include foreign patents, sales, and public use. Finally, the AIA established a system in which a third party can submit prior art for consideration in the application review process for up to six months after the pending application is published. This means that a person who is aware of a pending application can submit evidence of prior art that could invalidate the patent before it is issued. To protect the person or company who objects to the patent from potential retribution, the USPTO permits the anonymous submission of prior art for consideration. The inclusion of third-party submissions could significantly improve the validity of issued patents, and reduce the amount of time and expense spent on disputing patents after they are granted. However, despite their potential for preventing problematic patents, the submission of third-party prior art references is quite rare, perhaps because the public is still unaware that such an option exists, or because of the prohibitive amount of time it would cost the public to monitor pending patent applications.^76,77 Another potential limitation of this strategy is that patent applicants can request that their application not be published so long as the patent is only filed in the US and not internationally (35 U.S.C. § 122). Successfully leveraging third-party submissions, therefore, would require consistent monitoring of pending applications and an adaptation to the law that requires all applications be published.

Can I Challenge An Existing Patent?

So far, this guide has covered how to prevent a patent from being granted. But what is the recourse for challenging existing patents that lay claim to non-novel varieties or traits? There are three formal ways to challenge existing patents:

1) Post-grant review: The post-grant review petition must be filed within the first nine months after the patent has been granted. If the petition is accepted, the patent is reviewed, in light of the petitioner’s evidence of prior art, by three judges at the Patent Trial and Appeal Board.

2) Inter partes review: Inter partes review proceeds much the same way as a post-grant review but can be filed any time after the first nine months of the patent’s duration. As of this writing, the fee to file a post-grant review is $47,000 and the fee to file an inter partes review is $41,500.⁷⁸ In addition, both methods involve the petitioner and the patent holder in a courtlike setting, and requires briefing, testimony, and oral arguments, which can incur significant attorney fees.⁷⁹

3) Ex parte reexamination: can be requested any time after the patent is granted. Instead of provoking a trial, the ex parte reexamination simply requests that a new patent examiner review the application in light of additional evidence of prior art, which is submitted by the petitioner. After the request is submitted, the petitioner is unable to add more evidence to the request; however, the patent holder is able to respond by updating their claims (if possible) to accommodate the additionally cited prior art. Still, there are some benefits to requesting an ex parte reexamination: unlike in the post-grant and inter partes review process, an ex parte reexamination can be submitted anonymously.⁸⁰ The anonymous nature of the proceeding and the limited scope of review makes the attorney fees much lower, and the fee to file the petition costs only $6,000 or less if the petitioner meets certain income requirements and qualifies as a small or micro-entity.⁸¹

There is, additionally, an opportunity to sue the holder of a problematic patent in federal court if the plaintiff can prove they have standing and have been harmed by the granted patent.

CHAPTER FOUR: Non-Patent Intellectual Property Strategies

Many breeders are opposed to utility patents on seed because they defy a long history of reciprocal relationship between plants and the people who grow them, because they are expensive, and because they contribute to burgeoning inequality in the agricultural sector. Still, many plant breeders and seed growers rely on revenue from the seed market to fund their work. As you will learn in this chapter, there are other tools and strategies for recouping development costs that adhere to principles of shared benefit and open access. Plant breeders and companies have used these strategies to generate revenue for their seed growing systems while also fostering ongoing innovation in the field from which the entire organic seed community can benefit.

Plant breeders release new varieties to the public for a range of reasons. Some share their varieties so that they can adapt to different growing conditions or so that the cultivar can continue to be improved by others. Some share a variety because they believe it fills a need within a regional food system. For others, plant breeding is a livelihood, and breeders need to ensure they are able to continue their work and recoup the costs invested in the varieties’ development. In many cases, a seed breeder’s motivations involve a combination of these goals, and they might layer different IPR strategies in order to achieve the type of protection that suits their needs. These strategies vary tremendously in terms of cost, duration of their applicability, the types of restrictions they confer on the seed, and their defensibility in court (See Figure 3: IPR on Seed).

Because the application of intellectual property claims to seed requires moral decisions as well, there is no singular strategy that can be recommended to all growers. Instead, the following section lays out different mechanisms for recouping breeding costs that also allow for seed-saving exemptions and access to plant genetic diversity. This section also provides stories from growers who have employed these strategies and can speak to their attendant costs.

Before committing to an IPR strategy, seed growers must understand what type of seed they have and what the goals for the variety release are. Is the variety stable and uniform? Do they hope to retain specific exclusive rights for marketing and selling the seed? Do they hope to recoup development costs, or do they just want to share the variety and prevent anyone else from claiming rights to it? Heron Breen, a plant breeder and former research and trial coordinator at Fedco Seeds, said that asking these questions before pursuing intellectual property can help clarify one’s path. “I think we’re talking about a plurality of things, some groups will find that they have commonality and some will discover that they don’t. It is important for breeders to understand their goals and what it is that they’re trying to achieve,” he said. The answers to these questions will vary from person to person, resulting in a myriad of potential IPR strategies.

FIGURE 3: IPR ON SEED

Plant Variety Protection Certificate

In many ways, the Plant Variety Protection (PVP) certificate is the most formal, and the most patent-like form, of intellectual property protection in a plant breeder’s toolkit. Similar to a patent, the PVP applies to “distinct, uniform, and stable” seed-producing plants, and allows the breeder to prevent others from marketing the variety for the first 20 years. The intention of the PVP is not to allow plant breeders to lay exclusive claim to a new variety, but rather to provide time during which they are its sole proprietors to recoup their costs, after which the variety returns to the public domain. Under a PVP, farmers can still save seed for on-farm use. In addition, breeders can use protected seeds for use in their own breeding programs as long as the result of their efforts is a new variety with at least one distinct morphological trait.⁸⁸

The opportunity to recoup investment costs, however, is set back by the large initial cost of applying for a PVP— $5,150 as of this writing.⁸⁹ In addition, unlike a utility patent, which can claim individual traits, a PVP always only protects one cultivar, meaning that protecting a particular trait displayed in multiple cultivars would mean applying for multiple PVPs. This cost could be prohibitive for those who are not planning to enter the market with their variety or trait, but rather want to make sure it is protected from being appropriated or tied up in patents should they choose to share their seed for planting or breeding. In addition, the process of obtaining a PVP certificate can take several years after the initial application, at which point, seed growers whose focus centers on marketing a multitude of varieties, rather than capitalizing on any one release, might already have brought newer varieties to market.

For this reason, Frank Morton, a renowned lettuce breeder, says that PVP protection is the wrong fit for the varieties he works with:

It slows down the process and makes everything less nimble. I think for what I do, the kind of plant breeding I do and my market, which is innovative plant growers selling to innovative chefs, it’s more important to be there first than to be there with protection.

Another major hurdle for many seed growers is that the new variety must be uniform and stable, which runs counter to the nature of many open-pollinated landraces. These varieties, bred through traditional methods, have intentionally diverse populations which impart better resilience against disease, pests, and weather-related stress.⁹⁰ So while a PVP might be a good option for plant breeders interested in marketing a widely-adapted crop, it can be prohibitive for other breeders and seed growers.

PVP Requirements: Variety must be novel, stable, and uniform
Restrictions: Marketing rights exclusive to the certificate holder
Permissions: Breeding, research, and on-farm seed saving allowed
Cost: $5,150
Process time: Application process can take up to two years
Duration: 20 years, after which variety enters public domain

Trademarks

Although the most commonly referenced strategies for intellectual property protection in plant breeding are awarded through different forms of patents and patent-like protection, the use of trademarks is gaining traction as a way for a company to attach an identity to a specific product, which encompasses not only the variety itself, but also its quality, origin, and the standards of production used from seed to table. Most consumers are familiar with some trademarked plant varieties, especially when it comes to fruit, such as Chiquita bananas and Pink Lady apples. Rather than restricting the use of a variety itself, the trademark only restricts the use of a particular brand name.

Trademarking a variety offers several benefits for those who are in the business of plant breeding. For example, in contrast to a Plant Variety Protection certificate, which is only valid for a finite period of time, a trademark can be protected indefinitely. According to the IP Handbook of Best Practices, a general resource on intellectual property, the value of a trademark increases over time as a company establishes brand presence and garners market value for the superiority of its product; whereas, a plant patent or PVP’s value declines over time as its term limits expire.⁹⁹ The Handbook also defines the benefits of a trademark in an international context: “Because plant variety rights are not available (or particularly enforceable) in many countries, trademark protection is often stronger than, and can serve as a proxy for, variety rights protection.” Trademarks might offer a solution to seed growers who want to market a plant variety but hold an ethical objection to restricting germplasm use for others. Trademark law expressly prohibits registering varietal or common names, and does not prohibit someone from growing out the variety and selling it under a different name or mark.

Another important advantage to a trademark is that trademarks, unlike PVPs and patents, can define how the seed is grown and processed. For example, Kamut is a trademarked name for Khorasan wheat. The company, which popularized the variety for its use in snacks and for wheat-sensitive people, stipulated that the wheat can only be sold as Kamut® if it adheres to strict organic production and processing standards. In other words, anyone can grow Khorasan wheat, an ancient landrace, but they must adhere to the restrictions of the trademark license to call it Kamut. These requirements allow the company to maintain the quality of their products and market their environmental values.

Unlike a PVP, which restricts other growers from marketing a variety, a trademark has little value on its own. Instead the trademark is used to build a particular reputation—an association with quality or values that are attractive to consumers. By restricting competitors from using the name for a product, a company is able to ensure that seed buyers receive consistent quality for a seed marketed under a particular name. Because a trademark can be renewed indefinitely, its value increases over time as the company’s reputation is built. Some seed growers choose to apply for a PVP and a trademark at the same time to have exclusive control over a new variety while they establish its place in the market. When the PVP expires, the seed seller can rely on the trademark to distinguish itself from competitors who now have the legal ability to market the original variety.

™ vs. ®
The ™ symbol actually means that the mark is not registered with the USPTO. However, because the legal protections governing trademarks arise from use in commerce, unregistered marks still enjoy protection under common law, and people who hold unregistered trademarks can still send legitimate cease and desist letters to the infringer. The ® symbol means that the mark has been registered, which confers additional statutory benefits like the ability to bring infringement suits and recover damages.

While it is true that trademarking can offer a way around some of the more ethically ambiguous decisions one must make in plant breeding, it is also fairly costly. The cost to apply for a trademark, as of this writing, is $500.¹⁰⁰ In addition, the trademark’s success is contingent upon the owner’s ability to establish and maintain brand presence—it loses its value if the product is not “of consistent quality and continuously available” on the market—which requires dedicated marketing resources, according to one company interviewed. The trademark itself can also be invalidated by the USPTO if it is disused for a certain period of time, usually three years.¹⁰¹ Enforcing the trademark in perpetuity also requires that a portion of all revenue be allocated to legal fees. For example, one seed company that owns several trademarks on their seeds estimates that they spend around $20,000 a year maintaining and enforcing their intellectual property. For small, independent seed growers looking to establish themselves in the market, such up-front costs could be prohibitive.

Trademark Requirements: None on the seed; brand/ mark must be distinctive.
 
Restrictions: Prevents others from selling seed under protected name.
 
Permissions: Seed saving is not restricted in any way; marketing under the brand name can be licensed for a fee and/or to promote values associated with the brand.
 
Cost: $500 in addition to legal fees to defend against fraudulent uses.
 
Process Time: 12 – 18 months for a registered trademark. Immediate if unregistered.
 
Duration: 10 years with option for renewal (for a registered TM).

Trade Secrets

In the realm of intellectual property, trade secrets are often mentioned as a form of protection that requires far fewer resources than other, more formal patent-like protections, such as PVPs. A trade secret is simply information that is not already commonly known by the general public and which gives a company an economic advantage in the market.¹⁰² A particular advantage of trade secrets is that they can be maintained forever, so long as the protected information is not readily divulged by those who hold it. This is in contrast to other types of intellectual property like PVPs and patents, which expire after 20 years, at which point the information is returned to the public domain.

One of the most famous examples of a trade secret is the formula for Coca-Cola. Contrary to what one might expect for one of the most ubiquitous products in the world, the recipe itself is not patented. Instead, the company claims to keep the recipe in a vault, which only few executives can access, permitting the company to have exclusive ownership over the beverage indefinitely.¹⁰³ Trade secrets are also commonly used in the agrochemical industry. In 2016, manufacturers of the pesticide glyphosate successfully withheld evidence of their potential impacts on human health by invoking trade secrets, claiming that divulging its components would infringe on their intellectual property rights.¹⁰⁴

In plant breeding, trade secrets protect inbred parent lines of hybrid varieties. In 2000, Cargill paid $100 million to Pioneer Hybrid after Pioneer found “misappropriated” genetic material in Cargill’s breeding program, which were supposedly covered by trade secrets.¹⁰⁵ In this case, Pioneer alleged a former researcher from Cargill had taken proprietary germplasm to Pioneer. For most plant breeders, however, trade secrets have been largely foregone in favor of other, more formal IP strategies. Because crop needs evolve over time, there is less to be lost after the 20-year protection of PVPs and patents expire. In addition, there are several major vulnerabilities that make seeds an imperfect fit for trade secret protection.

According to Bill Tracy, a corn breeder at the University of Wisconsin-Madison, one possible flaw is the ability for plant breeders to find self-pollinated parent lines by growing out bags of hybrid seeds and identifying non-uniform plants. For example, in the case of hybrid corn, if a plant was allowed to pollinate itself before being detasselled, seeds of the inbred line would be included in the seed lot and easily identifiable in the field, because the plants would deviate from the uniformity of the hybrid plants. Because that seed was legally purchased, the proprietors of the hybrid line would be responsible for having divulged their secret should the purchaser keep and grow out the inbred line. Breeders can also self-pollinate hybrid lines to isolate traits of the parents, and in doing so, obtain the desired genetic material without stealing information or coercing the holders of the information.

Dr. Tracy, an agronomist with decades of experience in corn breeding, says that trade secrets have been almost entirely replaced in the industry by utility patents and licensing contracts. “A trade secret actually offers nothing that a smart person or a thief couldn’t get around,” he said. “There’s just no way to enforce them.”

By contrast, licensing contracts are formal agreements that have binding legal power. The next chapter outlines the different ways that contracts are used in seed growing and plant breeding. Because contracts are merely legal agreements between two parties, they can be highly individualized depending on the seeds and the people who are transferring them, making it a much more flexible and, at times, potent IPR tool than the formal and patent-like protections in this chapter.

Trade Secret Requirements: None. Typically used for hybrid varieties.
 
Restrictions: Process of invention is confidential, but can be circumvented if seed is acquired.
 
Cost: Free
 
Process time: Immediate
 
Duration: As long as secret is kept.

CHAPTER FIVE: Contract Law

While PVPs and trademarks function as stand-alone intellectual property tools, most variety releases under these forms of protection are paired with contract law. Contracts stipulate how the seed can be used and whether it can be used for breeding, research, marketing, or sale. Contracts include material transfer agreements that outline allowable practices for specific germplasm and are often used between plant developers both in the public and private sector. Contracts also come in the form of licensing agreements on seed bags and packets, commonly referred to as “bag tags,” that serve as a binding agreement between any user of that seed (farmers and researchers) and the proprietary owner. Simply opening a bag or packet of seed with a licensing agreement associated with it binds the grower to the terms in the agreement. These terms often restrict seed saving and selling, and restrict use for research, including for breeding and variety trial purposes. Contract law can serve as a highly restrictive form of IPR because, unless stipulated, and unlike patents and PVPs, contracts do not have a predetermined expiration. They can be especially obstructive to a farmer and breeder’s rights when combined with additional patent and patent-like IPR that would have otherwise preserved those rights. Fortunately, contracts can also be written in a way that adheres to the principles of fairness and shared benefit, supporting one’s freedom to operate by not restricting seed saving or research of any kind, including breeding. Contracts can also stipulate that a royalty be returned back to the breeding program and/or farmer collaborators.

Because contracts can be drawn up under any conditions and made between any two consenting parties, contracts can contradict, counteract, or enhance the restrictions set forth by more formal forms of intellectual property law. Any contract should be read thoroughly prior to an exchange of seed; however, there are some common forms of contracts within the seed trade that carry different sets of stipulations. This section outlines some of the more common iterations of contract law and the contexts in which they are used.

Material Transfer Agreements

One form of contract is called a Material Transfer Agreement (MTA), which is simply a document that stipulates how seeds can be used when exchanged between two or more parties. They can take several forms, ranging from letters accompanying a seed shipment to carefully negotiated contracts signed by both parties. MTAs are standards of the trade, especially for researchers and public breeders who exchange unfinished varieties for further breeding and variety trialing. In the 2022 State of Organic Seed report, researchers who reported releasing finished varieties or breeding material as a part of their work were asked about the intellectual property strategies they used to do so. Fifty-three percent reported using MTAs, only 24% reported using PVPs, and only 6% reported using utility patents.¹⁰⁶

MTAs are also a popular framework in situations where a person is stewarding a variety previously adapted through traditional agricultural methods, as is the case for many Indigenous landraces, rather than claiming to have developed a new variety. In these cases, seed growers might only be trying to prevent their germplasm from being patented by an outside company. As noted in Chapter 2, publicly disclosing the existence of a variety could help prevent a patent that would claim it as novel. The patent application requires applicants to list instances of prior art; however, it is possible for applicants to fail to disclose the source of their genetic material.¹⁰⁷ In this situation, an Indigenous community that has established an MTA can lay claim to genetic material before sharing it with the world at large, and thus prove prior art whether or not a patent application acknowledges the source of their material.

Some seed banks also use MTAs to share or sell seeds they collect from Indigenous communities or small, independent breeders. These agreements can serve as documentation of agreed-upon terms should seeds from the collection fall into the hands of someone who would use them in a breeding project that would result in patent or PVP protection. They can also document the place of origin and stipulations for their use from the contributing country, and provide information for researchers doing ethnobotanical research. In providing guidance for Native Seeds/ SEARCH collection practices, Letitia McCune has drawn up a sample MTA for such use.

In short, MTAs are documents that stipulate how a seed can be used when it is transferred between two parties, especially for research and collection purposes. As contracts, these documents and their uses can vary substantially from user to user, but should be written in such a way that does not restrict further research except where culturally appropriate. MTAs can play a major role in the international transfer of genetic material, which is explained in further detail below.

MTAs, International IPR, and Traditional Knowledge

Although this resource is focused on intellectual property laws as they pertain to seeds bought, sold, and grown in the United States, seed growers should be aware of several international agreements intended to protect Indigenous and culturally important seeds when collected abroad.

In 1992, the United Nations Conference on Environment and Development introduced the Convention on Biological Diversity (CBD), an international treaty that provided, as one of its three objectives, “the fair and equitable sharing of the benefits arising out of the utilization of genetic resources with those providing such resources.”¹⁰⁸ The emphasis on benefit sharing arose from the premise that biological material (such as seeds) had been used by public and private researchers to develop new products, but that the original stewards of those materials did not derive any of the benefits from the new products. Effectively, the CBD sought to acknowledge and rectify lack of formal intellectual property protection for stewards of biological resources, especially those in the Global South.

In 2010, the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the CBD (hereafter Nagoya Protocol) sought to outline more specific ways to implement the “access and benefit sharing” (ABS) objective of the original convention. According to the Nagoya protocol, companies and researchers who wish to extract genetic resources from a foreign state, including traditional agricultural varieties, must obtain prior informed consent from the providers of those resources. This applies to both materials collected in situ, as well as material obtained from formal collections, such as seed banks. The protocol mandates the equitable sharing of benefits with the originators of the resource. “Benefits” are considered both monetary, such as royalties derived from new varieties, and non-monetary—for example, sharing research results or technology transfer.¹⁰⁹ The aim of access and benefit sharing arrangements is to ensure there is fair distribution of benefits between those who use genetic materials (such as public and private plant breeders) and those who provide them (often biodiversity-rich countries).¹¹⁰ Per the Nagoya Protocol, each ABS agreement is reached on a case-by-case basis and must be made on mutually agreed upon terms. While the United States has notably not yet ratified the Convention on Biological Diversity—the only country in the world not to have signed it, except for the Holy See—the Nagoya Protocol offers a model for seed growers in the United States who work with Indigenous seeds.

Prior to the introduction of the Nagoya Protocol, the International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA) had already proposed certain objectives aimed at the conservation of plant genetic resources and equitable benefit sharing; however, rather than establishing agreements on a case-by-case basis, the access and benefit sharing agreement in ITPGRFA is outlined in a pre-defined standard Material Transfer Agreement and cannot be changed. For most cases, sharing monetary benefits derived from the development of a cultivar or breeding line is a mere recommendation. For the ABS to become mandatory, the new variety must be protected by exclusive intellectual property claims that restrict further research, as is the case with utility patents granted in the United States.¹¹¹ Further, the benefits derived from the use of genetic resources is centralized in a “benefit-sharing fund” and does not ensure that benefits are shared with the country who provided the seeds.^112,113 Instead, the UN Food and Agriculture Organization uses the fund to make grants that support field-level projects around the world. Because there is no guarantee that providers of seeds will receive royalties, the ITPGRFA should not be treated as the solution for international germplasm sharing, but rather be implemented in conjunction with other agreements, such as the Nagoya Protocol, that more directly returns benefits of seed development to the communities that shared the seeds.

Still, there are plenty of concerns and confusions about how to ethically implement any ABS agreement, especially in standardized systems like ITPGRFA, given the many uncertainties that may arise. For example, in Complementarity and Conflict, Cary Fowler, former executive director of the Crop Trust, points out the inherent difficulty of ascertaining even the most foundational aspect of ABS—country of origin:

Given the likelihood that a landrace or a farmer’s variety might have multiple distinctive properties, it is entirely possible that a single seed might have multiple countries of origin. Furthermore, one has the problem of distinguishing and agreeing upon what a distinctive property might be (e.g., how to distinguish between shades of red in a red apple or degrees of disease resistance) and of identifying precisely where that particular quality arose even if the event took place thousands of years ago.¹¹⁴

Another criticism is that increasing standardization of benefit sharing might result in restrictive MTAs that apply even to seed drawn from the public domain and whose development is destined for public access. Plant breeders who do not derive benefits for the development of new varieties, in this situation, would not have the means to pay into a benefit sharing agreement.¹¹⁵ In conclusion, Fowler writes that restricting the flow of genetic resources between countries, via standardized MTAs or complicated ABS agreements, would disproportionately harm communities who are in desperate need of improved varieties. Farmers and breeders around the world depend on the flow of genetic resources between communities, and while international agreements can work to ensure that the exchange is equitable, much depends on decisions made at the working level. As with any cross-cultural exchange of resources and knowledge, the most important first step is due diligence thorough research and establishing good relationships with the communities to whom the seed is culturally important.

Licensing Contracts

Many breeders and seed growers who are interested in marketing their seeds enter into some form of licensing in which they confer rights to their intellectual property (in this case, the claimed variety) to someone else. These licenses can be drawn with seed growers who multiply the total stock or with seed companies who will then market the seed. There are several types of license agreements that can be tailored to fit the types of restriction one wishes to place on who and how third parties can replicate their work. Heron Breen, a former trial coordinator for Fedco Seeds, gave examples of the different types of licensing contracts breeders use:

An exclusive license, he said, confers rights to only one other party, although sometimes only for a limited amount of time, and requires that the licensor will not market the variety with anyone else, guaranteeing less competition for the licensee. In this case, an exclusive license is exponentially more valuable than a non-exclusive license.

With a non-exclusive license, a licensor may contract their variety to more than one grower or seller, which allows them to seek out multiple revenue sources. However, because the seed is marketed and available through multiple outlets, and thus will likely garner less sales volume than it would if it were sold via a single outlet, seed companies may pay less in royalties on a variety that has a non-exclusive license. In addition, if all seed production is in the hands of the farmer-breeder, a non-exclusive model may result in an increased labor expense to manage and complete orders with a multitude of retail sellers. This level of ongoing production and inventory management is not always within the skillset or intent of the originator of a variety, which often results in a propagation agreement with interested seed companies. Under licenses with propagation agreements, stock seed may or may not be continually sourced from the originator.

Finally, a breeder with a finished variety but who doesn’t wish to market that variety personally might sell their license on that variety outright. In this case, the breeder may retain the ability to use the variety in breeding projects but wouldn’t earn royalties on sales of that seed.

These licenses can be communicated to the end user in a multitude of ways, including a standard contract that is signed by both the licensor and licensee. Another standard in seed licensing is the “bag tag,” which is further described in the next section.

Bag Tags
 
Because all the information that needs to be communicated about allowable uses of IPR-protected seed can be exhaustive, the seed industry has adopted “bag tags” as a way to communicate lengthy contracts to the end user. Bag tags are agreements printed directly onto seed bags or packets that restrict their use. Simply by opening the packet, the purchaser agrees to abide by the terms of the agreement, much like opening a piece of software and “clicking” to agree. Commonly, bag tags are used to prohibit saving future generations of the seed or for using that seed for breeding or research purposes. These restrictions can apply not just to hybrids but also to open-pollinated varieties and heirlooms in the public domain.¹¹⁶ One significant problem with bag tags is that retailers who buy their seed in bulk and repackage it for individual sale might not transfer the bag tag to the new seed packets, resulting in a situation where a seed grower has unwittingly purchased use-restricted seeds.
 
Of course, although the contract says that using the seed equates to consent, there is no guarantee that the user will have actually read and understood the terms of the bag tag license.

Image above: Example bag tag on a Seminis seed packet

Open Source Seed Initiative Pledge

Similar to the concept of a bag tag, but with an opposite aim, the Open Source Seed Initiative (OSSI) has created its own seed-packet agreement to ensure that a variety and its progeny is not restricted by any forms of intellectual property. In 2012, a group of people representing a variety of perspectives—the seed trade, breeders, researchers, and farmers—met to develop a type of seed license that would allow breeders to share their plant genetic material and ensure that access to seeds remains widely available to all, a response to the alarming “erosion” of farmer sovereignty over seed.¹¹⁷ The original goal was to create a licensing agreement similar to open-source software licenses. The team ran into issues when the final agreement was nearly seven pages long, which couldn’t fit neatly onto a packet of seed. Instead, the founders settled on a pledge that simply says:

You have the freedom to use these OSSI-Pledged seeds in any way you choose. In return, you pledge not to restrict others’ use of these seeds or their derivatives by patents or other means, and to include this Pledge with any transfer of these seeds or their derivatives.¹¹⁸

Founding member Jack Kloppenburg, who is professor emeritus at the University of Wisconsin-Madison, introduced OSSI by writing, “OSSI intends to encourage and reward the sharing rather than the restriction of germplasm, to revitalize public plant breeding, and to integrate the skills and capacities of farmer breeders with those of plant scientists.”¹¹⁹ As of this writing, there are over 500 varieties listed on the OSSI website representing 57 seed growers and associations.¹²⁰ The OSSI movement has sparked similar movements worldwide, including GOSSI, the Global Open Source Seed Initiative, which is supported by organizations throughout the Americas, Asia, Europe, and Africa.

A person with a new variety to pledge simply fills out an agreement and provides the OSSI review committee with information about how the seed was bred. If the variety passes review, it is entered into the OSSI domain. The seed grower then affixes the pledge onto the packaging for any transferred seed. This essentially guarantees that the recipient will not restrict future use of the seed in any way (including further breeding or marketing) except that the variety or any future derivative of it cannot be claimed under a patent or a PVP. The idea is that as seed growers release new varieties using the OSSI-pledge, the body of seeds that are freely available to use for breeding and seed saving will continue to expand, building a reservoir of high-quality germplasm that counters the increasing privatization of seed.

Essentially, OSSI is designed to be an anti-IPR tool; however, in order to do so, it repurposes contract law—supporters call it a “copyleft.” Kloppenburg acknowledges that one of OSSI’s major drawbacks is that “there is distrust of an initiative whose dependence on a formal license appears as one more application of the legal tools…which have already been so destructive of farmer sovereignty over seeds.”¹²¹ While it does not cost anything to pledge a variety, and the pledge is intended to ensure free access to the seed in perpetuity, some breeders and seed growers might be reluctant to attach yet another contractual agreement to a seed commons they believe is already becoming increasingly bound by legalese.

Perhaps ironically, one of the main concerns for OSSI-pledged varieties is that the pledge might not actually have the legal teeth required to protect it from egregious patents. It has largely been defined by its founders as a “social movement,” who assert the pledge relies more on the “soft power” of tracking and social pressure of upholding its agreement and less on the “hard power” of the law.¹²² In a way, the OSSI pledge is not so much a legal or economic initiative for seed growers as it is a political initiative designed to publicly reinforce the assertion that seeds are the heritage of all humanity. Still, others see OSSI as an incredibly restrictive form of IP that, if honored, bars any holder of the variety and all of its progeny from restricting use of the seed by patenting or “any other means,” which could include less controversial forms of IP such as PVPs or even licensing contracts, making the pledge less likely to be included in institutional breeding projects that stipulate a certain kind of agreement for all varieties the project produces. OSSI believes the pledge to be legally sound, but the pledge has yet to face a challenge in a courtroom.¹²³ Up to now, OSSI functions as a valid IP tool because people in the organic seed community adhere to a standard of ethics that tends to honor a breeder’s wishes.

Another concern for OSSI varieties is that the OSSI pledge does not include any mandatory royalties, which makes it an imperfect solution for seed growers who need to finance their projects and in some instances might be seen as a way to legitimize appropriation. OSSI does permit voluntary royalty agreements, as well as the use of trademarks in conjunction with the pledge, so long as the trademark does not involve a license intended to control access to or use of the seed. Instead, the trademark should be used to identify a particular farm, producer, or brand, including those that have standards for growing and marketing those varieties.

Voluntary Royalty Agreements

Importantly, some seed companies have begun to offer voluntary royalties to breeders for situations in which the company has not bought the seed from the breeder directly or when the seed has been designated open source. Such royalties are an important aspect of the relationship between variety steward and seed company, as the companies understand that supporting the people who contribute rare, new, or unique varieties to their collections is mutually beneficial. Carol Deppe, a career freelance plant breeder, has written extensively about voluntary royalty agreements. According to Deppe, a general rate for breeder royalties is 10% to the breeder.¹²⁴ Some companies, such as Fedco Seeds, use the voluntary structure to establish their company as a community minded seed seller. (See 6C: Ethical Compensation for more on this.)

Voluntary royalty agreements are a trend that reflects the self-organized nature of organic and small-scale seed growers who have from the beginning centered themselves around principles of care, ecology, fairness, and health.¹²⁵ The ethics of the small-scale seed community is further explored in the next chapter.

CHAPTER SIX: Practicing Good Seed Ethics

While conducting interviews for this guide, seed growers routinely mentioned that one of their strongest forms of intellectual property protection is actually not rooted within a legal framework, but rather emerges through the strong sense of community with others engaged in plant breeding and seed growing outside the dominant seed corporations. “There’s a certain ethic of how seed companies and breeders deal with each other in this organic-focused community,” one breeder said. As the small and organic seed community expands, and intellectual property rights become further entrenched in the commercial exchange of seeds, seed growers expressed the importance of guiding principles to reinforce the standards currently upheld in plant breeding, as well as to begin to incorporate deeper conversations within the community about ownership and attribution into their work, especially as they relate to work with Indigenous seeds.

This chapter is an analysis of all of the interviews conducted during the writing of this resource. Although there is no formal agreement as of yet that dictates the ways organic and agroecologically aligned breeders should navigate IPR, nearly all referred to good relationships as a guiding principle. Here, we articulate those ideas and connect them to themes set forth at OSA’s Seed Ethics Intensive in 2020.

The types of relationships participants defined include both lateral relationships developed with people engaged in work on similar scales, as well as relationships with larger companies who might contract or grow seed for broader distribution. When asked about how seed companies approach open-pollinated variety releases, for example, one person acknowledged the possibility of another company saving and growing out that seed for sale the next season. But, she said, “people in the seed community, or at least in the small seed community, you know, do try to just have good relationships with each other. The good seed companies will, if they know somebody bred a variety and released it, and they like it and they want to carry it, they’ll call that company and ask them if they can carry it.”

A number of other people who have worked with small seed companies reiterated this approach: “I think that there are non-legal ways that people are motivated to [commercialize new varieties]. I don’t feel worried about High Mowing or Johnny’s taking something without asking me. And if they took it by mistake, I’d call them up and talk to them about it.” Another person pointed specifically to direct communication as a way to circumvent legal outcomes: “It’s a very small community. So if there is anything going on, [we] usually hear about it. And in the few cases where that has happened, it has always been solved with a friendly phone call.” Thus, there appears to be an unwritten code of understanding and relating to peers within the small seed production community.

Some went on to connect relationships with people’s reputations, pointing to the importance of behaving in an ethical way to maintain one’s standing in the seed community. For example, one person who works for a university said that in the organic breeding community, there’s a moral agreement to respect each other’s varieties to the extent that “if somebody else comes out with something identical, it’s very clear that they’re not behaving in an ethical way.” Others underscored that agreement by stating that people who do behave unethically can even be excluded from contracts and access to germplasm: “Everybody knows everybody,” one person said, “So I think if someone were found to have stolen other people’s stuff, they would no longer be respected or included.” Another person, who works as an independent breeder for a small seed company, said that “there are people who have reputations for not respecting intellectual property, and pretty soon no one wants to work with you. At least, that’s how it is in the US.” Several seed growers, however, suggested that this ethic is changing: “Up until now, we basically had a personal relationship with everyone who’s growing these varieties and that’s another reason why IP seemed sort of excessive,” one said. Another breeder agreed, “Before, it was basically a gentleman’s handshake. Maybe people understood what was kosher and what was not and they didn’t cross that line, or if they did, they would quickly be ostracized from the community.” The social pressure of ostracization, this breeder contended, has been increasingly usurped by legal proceedings that affect the community dynamic.

Moreover, by contrast to the old approach, some participants asserted that social pressure or informal agreements have done little to deter bad actors. For example, one public breeder said that, where he and most others adhere to a certain ethical standard, “there are people in the community who are known as bad actors, and they’re problematic. What can you do? You can shun them, but it doesn’t actually do anything.” Another person, who works at a national-level seed company, said that he has heard of situations in which the reliance on quasi- or non-legal mechanisms, like good faith agreements, have backfired, pushing some people toward more formal contracts: “There’s an intent to create a network of peers where if you wrong somebody, then everyone else won’t work with you. But there’s been situations where people have done right, and the other person involved has claimed they haven’t. So then they’ll say, “I’m not going to get myself involved in this anymore. I’m going to have people sign paperwork.” As a way to formalize these social contracts, without resorting to more restrictive forms of intellectual property, several people I interviewed pointed to the Wheat Workers’ Code of Ethics.¹²⁶ The code, developed by the National Wheat Improvement Committee in 1994, serves as an agreement among wheat breeders that stipulates how the seed can be shared and used in breeding. Having a professional standard that applies to the entire community, they suggested, could mitigate some of the gray areas in which individual understanding of ethical behavior— and consequences for acting outside of those norms—varies from person to person.

Indeed, several other efforts to establish “best practices” have been developed for more specific contexts, including recommendations for public plant breeders resulting from the 2016 conference on Intellectual Property Rights and Public Plant Breeding, which specifically references the Wheat Workers Code of Ethics as a workable model for professional standards.¹²⁵ Other nonprofits that serve more focused groups of seed growers have developed internal policies, such as Native Seeds/SEARCH’s “Intellectual Property Rights: Principles for Honoring Indigenous Knowledge,” which addresses more directly the sharing of Indigenous seeds.¹²⁸ As one seed grower stated: “There is such a range of people involved in this work and they have different needs. [A university breeder] has a very different calculation than someone who is dependent on their seed sales to make a living.” For this reason, and because there have already been more pointed efforts to establish best practices for different groups of people sharing seed, perhaps there is no universal set of specific best practices that can be written for the whole of the seed community. Instead, this resource aims to identify generally agreed-upon ethical principles that could guide the development of more specific policies at an organizational level.

In 2020, OSA held a Seed Ethics Intensive during the Organic Seed Growers Conference. Registration was capped at 80 people and enrollment filled within a week of opening. Seventy people ultimately attended the event, including plant breeders, seed advocates, seed producers, owners of seed companies, and non-profit representatives. During the workshop, participants were asked how seed growers can build and maintain a strong community.

Through facilitated discussion, the group arrived at the conclusion that the elements of an ethical seed network seemed to fall under four themes:

1) ethical recognition and attribution,

2) ethical compensation,

3) transparency along the seed value chain, and

4) ethical stewardship of biodiversity.

This section describes these themes with best practices in mind, recognizing that, as Anjali Vats writes in The Color of Creatorship, intellectual property is “not a set of universal or immanent rules”—they are “negotiations of social values” and are defined by the community that produces them.¹²⁹ In this way, OSA hopes to support the organic seed community to inductively develop best practices about intellectual property that best reflects our values.

[C]opyright, patent, and trademark law, like all other legal regimes, are discursive formations shaped by culture, identity, and power. They are not a set of universal or immanent rules about knowledge governance that originate with infallible authority. They are negotiations of social values and ethical mores and their practical implementations.

– Anjali Vats, The Color of Creatorship

Transparency Along the Seed Value Chain

During the Seed Ethics Intensive, participants emphasized the need for more general transparency in the seed system, including transparency about seed sourcing and pricing, and recognizing how varieties are developed and maintained, and by whom. Transparency in this context more specifically about intellectual property operates in two ways: On one level, transparency and communication among seed growers and small companies is the foundation for a functioning community, and can stand in for more legal forms of intellectual property, as noted above. When violated or neglected at this level, a lack of transparency can also lead to ruptured relationships and biodiversity loss, as seed growers become less willing to share their seeds for fear that they will be misused or misappropriated. On a broader policy level, a perceived lack of transparency in the ways that IPR mechanisms function in relation to seed, and the lack of information about how they are transferred along the value chain, has also been defined as a major driver of the problem at hand.

Many seed growers have pointed to the inevitable encroachment of IPR into the seed system as a reason for obscuring the provenance of new varieties. Especially in the intersection between public breeders and private seed companies, breeders have lamented an increasing lack of information sharing between the two. One seed company owner said, “There used to be much more collaboration between university breeders and seed companies.” Jim Myers, a public breeder at Oregon State University said, “Everyone is getting siloed…There isn’t much sharing going on” (see Seed Stories: Indigo Rose Tomato). As seed companies become more protective of their material, some say that the diversity of the seed system suffers. People with this perspective generally called for more transparency and information sharing.

Transparency cannot be practiced, however, without some type of assurance that information about seeds and their associated traits will not be appropriated or abused by others. Some people, especially Indigenous seed growers, said they need to protect information about their seeds for cultural reasons:

Not everybody needs to know who [the seeds] are and what they do, or what they need to be used for, because the knowledge that came with those seeds was something that was given to us. By not sharing it, we’re strengthening that particular seed and we’re not cheapening the gift that they provide us. I wish there was some way that it could be almost like a need-to-know basis only—given different relationships or different status, either within an organization or tribe or community, then you’re able to have more access to information. I’m not sure what all of that looks like, but it’s been a challenge for myself and other people in the circle who are trying to think of ways to create access to seed without giving access to everybody.

The need to protect information about culturally important seeds is, at least in part, due to a history of appropriation by seed companies. One person put it more directly: “I don’t want to tell you that my [varieties] are resistant to [disease] because who’s going to want to try to find that and take it because they know it has that resistance?” In this way, transparency can only be the standard if it is accompanied by other social agreements like respect, ethical attribution, and ethical compensation, as well as a commitment to heal the effects of colonialism.

While transparency about seeds and seed traits is a delicate balance to strike, nearly all seed growers interviewed referenced frustration at the lack of transparency about the way that formal intellectual property rights operate on a policy level and about the way they are transferred along the seed value chain. One person, a former breeder who went on to work for a seed exchange network, said that “what is really missing from the picture is a platform where information on what is restricted and how it’s restricted is transparent.” Another university breeder agreed: “I don’t think you’re ever fully certain about what’s possible [to breed with] and what’s going to get you in trouble.” There isn’t a comprehensive source of information about different types of restrictions on specific seeds. Therefore, people who are interested in working with new varieties of seeds must resort to researching multiple sources to identify the different ways a seed might be restricted by IPR. One grower explained their process:

You could check the PVP database, and you could double check by searching Google patents. [Even then,] the commercial variety name that’s listed in the catalog isn’t often the same as the name listed on the patent. If the seed is sold in bulk, the patent number should be on the bag. But then somebody takes that bag and breaks it into a thousand seed packages, and they don’t put the patent number on the label. So you can see how you wind up having patented seed in your hand and not know it.

The solution for some seed growers, especially those who are interested in breeding new varieties, is to “ask a lawyer who can write you a ‘Freedom to Operate’ clearance.” Other growers say that the best way to find out about IPR restrictions on seed is to “just write to the breeder or the breeding company.” Whether it is the seed company’s responsibility to list IPR restrictions is the subject of some debate. One private-sector breeder asked rhetorically, “I don’t know…is it a seed distributor, a seed catalog—is it their job to communicate IP on my behalf?” Still, overall, most respondents seemed to agree that including as much information about IPR along the seed value chain is one way to increase transparency in the seed system.

Ethical Recognition

A large component of an ethical and transparent seed system is the careful preservation and transmission of as much information as possible about a seed variety and its history. Ethical recognition and attribution centers on appropriate acknowledgment of all sources of stewardship in a seed’s lineage. This includes Indigenous growers, seed originators, breeders, gardeners, and seed companies. Currently, there is no industry standard that requires a seed seller to disclose a variety’s lineage, which means that while some seed sellers include information about how a variety was developed, others simply list its technical attributes. Seed growers interviewed for this guide emphasized the importance of preserving seed names and seed histories as accurately as possible to both recognize previous growers’ time and efforts, as well as to maintain the integrity of the seed and its attributes.

Oftentimes, discovering the lineage of a particular variety requires doing diligent research. When industry emerged as the dominant mechanism for exchanging seeds in the 20th century, many of the oral histories that had previously accompanied seeds were lost, replaced by the concept of seeds as a commodity that could be reduced to its marketable attributes.¹³⁰ “When you’re writing a description for a catalog,” one grower remarked, “you only have so much space…you’ve got the variety characteristics and then you’ve got the recent history. But what about the not-so-recent history?” Learning as much as possible about the seed is part of being a “responsible steward,” said another. “It’s about doing the research. It’s about finding who else carries that seed.”

One grower whose work involves rematriating Indigenous seeds to their community said that the lack of information on seed packets and in catalogs can frustrate efforts to return seeds to their ancestral homes, and erase the history of people who developed them and deserve to be recognized. Several seed growers reiterated the difficulty of recovering that information once it has been lost: “There are only certain cases where we know we can go back to the original seed keepers,” one said. “You can maybe trace it back in some ways, looking at genetic relatedness, say it came from a certain region. That’s perhaps as close as you can get.” Another breeder reiterated the importance of maintaining even recent histories: “If I had to do it all over again, I would slow down and spend some more time researching. A lot of times the stories come from elderly people, and when you’re young, you think they’re going to be a forever resource.” Although it might be impossible to recover all of the information that has been lost, preserving as much of a seed’s history as is still available is critical to fostering an ethical seed system.

Many seed growers said that preserving a seed’s history is about providing recognition for the growers who contributed to a variety’s development. One seed grower who works on grains said that while there isn’t any IPR on her varieties, “There are cultural significances that I’m interested in maintaining, should one of those be apparent in my crosses. I wouldn’t be able to pass along anything financially, but in the variety release marketing, I would say, ‘This came from a Tibetan landrace that has a rich cultural history with this crop.’ I think we can maintain the stories and the beauty of those lines through breeding.”

Recognizing a breeder’s efforts in a variety’s recent history is also important: “Somehow you have to give attribution,” said one public breeder. “In much of the organic seed community, it’s really wanting no real ownership, but wanting attribution.” Another seed grower said, “Seed catalogs should have a description that says, ‘This variety came from this place, or this person, or this town.” For many people, providing that recognition is worth even more than the potential for earned royalties.

In addition, providing thorough and accurate varietal histories is important in maintaining the quality of the variety itself. Without proper recognition of a seed’s history, a variety can change drastically under different growing conditions and different standards for stewardship, and still be sold or exchanged with the same name—a problem pointed out by several breeders. “You could get some of [my variety] and make it awful, and still call it [my variety],” said one seed grower. This can have a serious impact on a breeder’s business if the quality of the variety diminishes. For example, Trevor Blyth, the president of Kamut International, said that a major impetus for protecting the KAMUT® trademark is so that people always know they’re getting grain from their seed population, whose genetic integrity is carefully protected, because it can be easier for wheat-sensitive people to digest. Controlling the seed name, and telling the story of the seed, is one way of making sure that the seed is what it’s supposed to be. “Take Waltham butternut,” said one seed grower. “Every seed source is different, and some of them are terrible. And because they’re all called Waltham, there’s no incentive for somebody to keep a good version of it around.” Similarly, Craig Lehoullier said that of the 10,000 or so varieties of tomatoes in seed banks and exchange networks, “my guess would be that there are about 2,500-3,000 genetically distinct varieties with lots of synonyms — the same variety, different name attached over the years.” Creating standards for proper documentation of a seed’s provenance could alleviate some growers’ concerns about maintaining the quality of their seed or seed name, thus reducing the need to rely on more formal intellectual property claims to do so.

Emily Rose Haga, the former executive director of Seed Savers Exchange, summarized some of the considerations that should be taken when writing a breeding history:

It is to some extent difficult to know how far back to go in a story. Who should tell a story and how should the story be told? There are parts of stories that haven’t been told. There are parts of stories that are hidden. There are parts of stories that are traumatic. Sometimes it’s appropriate to tell these stories; sometimes it’s not appropriate. I do think that when people are working with other people’s material, it is helpful to give credit to your source. I think the kind of community that we are trying to evolve into is one that has transparency and one that gives recognition. So saying the material that this was bred with was from this breeding program or this breeder is a first step. We would love it if folks are finding great material out of our collection to pay homage to the stewards that it originally came from or acknowledge that it came from our collection. The more you know, the better it is, right? Because then people can continue to dive in and look into those things that might matter to them.

Haga said that now, when Seed Savers Exchange accepts donations to their seed bank, they ask for information to get a sense of its history, which she refers to as a “stewardship chain.” “I think it’s a great term,” she said, “because a chain can be a really long thing.”

During the 2022 Organic Seed Growers Conference, one grower suggested creating a thesaurus of seed names that lists all known synonyms for each variety. Growers have also recommended several different mechanisms for tracking seed histories. One person recommended there be a database that compiles all of a seed’s information into one genealogical tree. Another said that a variety’s breeding history could be tracked in its name. For example, if she were to grow out a variety and pass the seed along, she might add her initials to the end of the name to indicate that she had grown it out in her climate. Although particular recommendations may vary, establishing standards and systems for ethical recognition seems to be a well-supported proposition in the organic seed community that should be further pursued.

ETHICAL RECOGNITION

– Ethical recognition is a crucial part of acknowledging seed growers’ time and efforts.
– Proper naming and attribution helps to maintain the quality of seeds in the organic system.
– Efforts should be made to establish stewardship chains for existing varieties.
– Seed catalogs should list as much information about a variety’s history as possible in collaboration and with permission from the breeder or originating community.
 

Ethical Compensation

When a standard for recognizing a seed’s history has been established, the next logical question is how to ethically compensate those who have contributed to its development. However, arriving at a standard for ethical compensation is an extremely complex task. At the outset, seeds are biological organisms that can multiply exponentially with little to no capital input, making them an imperfect fit for a capitalist endeavor.¹³¹ In addition, seed growers within the organic seed community operate on many different scales and have different economic needs to keep their projects healthy and viable. For some, seed growing is a cultural practice; for others, working with seeds is a hobby subsidized by other sources of income, and for others, growing and selling seeds is a means to make a living. Participants at the Seed Ethics Intensive define ethical compensation as paying seed growers fairly for their work and knowledge. They write:

In an ethical economy, every person’s work and the resources of the earth would be valued in a way that honors their dignity. Participants noted that ethical compensation should also extend to teachers — people sharing their knowledge to inspire and equip the next generation of seed growers. Similarly, ethical compensation would also extend to seed originators, or the people, communities, and companies who have stewarded seed over many generations as part of their livelihood and heritage. As seed keeping traditions pre-date monetary exchange, it is difficult to quantify the market value of those centuries of work. Understanding how best to compensate (as well as formally recognize) seed originators is therefore an important task for ethical seed advocates.

Approaching how to compensate seed keepers and plant breeders fairly, then, is first and foremost a matter of understanding the individual’s needs. Several seed growers interviewed for this guide intentionally do not want to benefit monetarily from their work with seeds. One farmer, who lives in Mexico and has contributed seeds to a US-based seed bank, said, “I don’t think I’ve ever sold seeds for money. We give them away.” Occasionally neighbors will trade for other crops, dried meat, or honey. But, he said, “I’ve never received money for seeds, which I feel good about.”

Craig LeHoullier, the tomato breeder from North Carolina featured above, said, “My needs are satisfied efficiently by knowing that I’ve created something and that I’ve shared and that people are enjoying it.” Another grower said, “We don’t sell seed, because we see the plants as our relatives. Instead, any of the food grade seed we’re able to feed our community.” They also make flour and other foods from the seeds they harvest, while leaving some for animals. Funding their work “is about trying to be creative, but also remembering that it’s all about balance.” Still, even those who personally do not engage in the sale of seeds acknowledge that people should have the choice to be compensated for their knowledge and their work. For example, LeHoullier even went on to say that, “I’ve thought quite often about how my approach is impacting those who do have to get a reasonable amount of income from their seed.” Another grower agreed that people who “have been cultivating these seeds for hundreds of years, all of their technology and knowledge and everything else that’s in those seeds, they’re not getting paid for that. And companies are stealing the traits and running with them.”

Many others, even those who have pursued intellectual property rights, said that compensation is not the impetus for their work with seeds, but rather is a necessary pursuit to keep their projects financially afloat. “At first,” said one plant breeder, “it’s really easy to hear concerns about intellectual property and maybe not understand the nuances behind it all. But then when you start to really dive into it, you see how people think: ‘It would be really great if people were acknowledging the effort I put into this, so that I can continue to do the work I really believe in.’” For example, Tessa Peters, the Director of Crop Stewardship at The Land Institute, said that while the ultimate goal of Kernza is putting perennials on the landscape, they are considering pursuing a PVP to help fund their research. Further, many university breeders who are under threat of losing funding for their programs are required to release their varieties with some form of intellectual property to maximize returns on the university’s investment.

This prospect is made all the more complicated by the fact that royalties gained from licensing varieties that are trademarked or have a PVP vary wildly by the type of crop that’s protected. One public grain breeder said, “I was never in it for the money…And I think one of the reasons we’ve been able to get around the tech transfer office is because [we don’t work with] a super profitable crop. When we say, if you make us [apply for IP protection], you’ll get $15 back in royalties, the university is like, I see your point.” Conversely, EarthWork Seeds believes that the thin margins on beans meant that they needed intellectual property protection to keep their research going: “We’ve decided that we cannot sell those varieties without protecting them, because then anybody could produce seed and sell them and we would never be able to recover our costs of development,” he said. John Hart, EarthWork Seeds bean breeder, added that breeding beans “is economically extremely different from tomatoes, and peppers and lettuce, and other small seeded crops,” because beans, like barley, require large amounts of land to cultivate and sell for far less money per pound.

Nearly everyone agreed that breeders deserve to be compensated fairly for their work. One seed grower, who owns a private company, said they “wouldn’t pursue a PVP for philosophical reasons,” but that “it would be the right thing to do financially in order to recoup all that research and time that went into developing [the variety].” Seed growers like him, who agree there should be some form of financial recompense for stewarding and developing seeds, turn to voluntary royalties as an alternative to intellectual property rights. “I think people deserve to get paid for their work,” said one university breeder, “And I wish that there was an easy way to do that without putting IP on their seeds.” Carol Deppe, a freelance breeder and founding member of OSSI, has pointed toward voluntary royalties as a way of circumventing formal IP and licensing agreements:

A great boon for freelance plant breeders has been the introduction of voluntary royalties or benefit sharing of some kind for their varieties…In some cases, the royalty is in the absence of any formal contract and is done routinely for all freelance breeders. I suddenly received several hundred dollars in royalties last year from a company I had never heard of for one of my corns, for example, a corn that was released many years ago…

In some cases the royalties are paid only by arrangement or advanced contract, or only for varieties that are just being introduced, and perhaps only for the first few years after introduction. In other cases, they are paid routinely to all living freelance breeders whose varieties the seed company is carrying where they are not buying the seed directly from the breeder already. In some cases it matters whether the seed company knows the breeder personally, or the breeder needs to contact the seed company and mention that the variety is theirs.¹³²

Heron Breen, former trial coordinator for Fedco Seeds, one of the first companies to offer royalties to breeders, said that Fedco pays 10% of a variety’s gross sales back to the breeder. Some universities, he said, have a template that extends to breeding as well. “If I want to use [a variety] as a parent in a hybrid, it’s a 5% royalty, and if I want to just keep breeding with it, it’s maybe a 1% or 3% royalty. Still, Breen acknowledges that the voluntary royalty system is one way that Fedco honors the work and knowledge of seed growers and plant breeders, but that royalties alone are often not enough to fund a salary for an independent breeder or seed company. “If we sell $5,000 of a particular variety, they get a $500 check. And that’s pretty high in terms of how this is all working,” he said. When possible, he said, Fedco buys seed directly from the breeder at a fair price, as well as paying them the royalty, which enables them to support an individual’s work more directly. In instances where the breeder is not an individual, but instead the seed is known to have origins with Black or Indigenous seed growers, Fedco directs the royalty money to the regional non-profit Northeast Farmers of Color Land Trust and the Indigenous-led nonprofit Nibezun in Maine where the company operates.

Many people in the organic seed community are motivated primarily by a desire to contribute positively to the food system, rather than a desire to benefit financially. They also agree that seed growers and plant breeders should be compensated fairly for their time and effort, and should have the means to continue their work. Because ethical standards for compensation vary widely depending on the breeders’ needs, the crop they grow, and the type of company that markets their seeds, people interested in working with or selling seeds should make an effort to determine where the seeds come from and communicate with the breeder or originator directly.

ETHICAL COMPENSATION

– Not all seed growers and plant breeders wish to be compensated for their contribution.
– Seed sellers and plant breeders who work with varieties with known breeding histories should contact the breeder or originating community about compensation for their work.
– The standard voluntary royalty is 10% for a breeder, with descending percentages if the seed is used as parentage in other breeding projects.

Stewardship of Biodiversity

At the core of many conversations about intellectual property and seeds is the inherent belief that the goal of the organic seed community should be to support the biodiversity of seeds in our agricultural system. Participants in the Seed Ethics Intensive noted that ethical seed networks promote the participation of many people, each contributing to biodiversity by perpetuating and co-evolving with the seeds they steward, as well as making germplasm widely available to others who would like to work with those varieties. The question should be asked, then, at the beginning of a seed project and routinely throughout: How does this project support biodiversity in our seed system?

Many people interviewed for this guide said that intellectual property is restricting germplasm—the phrase “tied” or “locked” up is often used as a shorthand for the way that germplasm becomes restricted by exclusive licensing and patents. This perspective is shared by people across the range of occupations and levels of involvement in the seed system. “The problem for plant breeders is when something gets utility patented and it ties up germplasm because someone owns a particular gene or level of expression of a gene,” one person said. When asked about an alternative system, a public plant breeder said, “I could see us going back to a system where we release germplasm or varieties that are public domain. Right now, public breeders are becoming less relevant because the genetic material is locked up.” Even independent breeders who have applied for utility patents agree that patenting restricts certain sources of genetic diversity: “It means that you don’t get to work with the best material immediately, and in some cases, you can’t access your competitors’ genetics until the patent expires in 20 years,” one person said. “But,” they added, “there’s way more diversity in landrace and heirloom seeds than what’s represented in some elite carrot variety owned by Monsanto.” Because wild, landrace, and heirloom varieties are an important source of genetic diversity, intellectual property mechanisms that restrict access to and use of these varieties and their traits should be avoided in an ethical seed system.

Instead, seeds should be in the hands of the people who have been historically responsible for increasing agricultural biodiversity–farmers. Many people interviewed routinely pointed to the importance of farmers and farmer-breeders in increasing biodiversity of the seed system. A plant breeder who works for a breeding company acknowledged that “farmers are the best experimenters there are.” Julie Dawson, who heads the Seed-to-Kitchen Collaborative, a farmer-breeding network, said their goal is for “farmers who are interested to be able to do the breeding and not run into a whole bunch of IP restrictions.” Stevan de la Rosa Tames, a seed saver and farmer from Sonora, said, “My biggest and main concern is the loss of biodiversity and the extinction of seeds,” he said. “Growing seed is not just about saving the genetic material that’s in the seed. It’s also about perpetuating the culture that goes along with it.” Farmers who keep heirloom and landrace varieties are also often preserving the culture associated with seed. An ethical seed system should be concerned with the preservation and perpetuation of a diversity of seeds and the culture of the farmers who grow them.

In some cases, however, this might mean that a variety is intentionally not shared or used in breeding projects. Sometimes, preserving an heirloom variety’s existing traits is an important component of a biodiverse seed system. The goal of a grower who is rematriating seeds is “continuing to try to keep those varieties true to type,” they said, “and having what we need in order to make sure that we have a good, diverse population.” Stewardship of biodiversity should not be reduced to an axiom that seeds be shared with all who ask for them. Indeed, participants in the Seed Ethics intensive recognized that a balance should be struck between making germplasm widely available for others who would like to work with them, and respecting that sharing seeds of culturally-important varieties may not be in the best interest of the communities charged with their care and preservation.

Both strategies will be important in order to preserve biodiversity in the future. One grower pointed out that their work “isn’t about owning the seed; it’s about continuing to make it resilient during climate chaos.” Many seed growers reiterated the need for as much genetic diversity as possible to confront the challenges ahead. “The idea is that perennials on the landscape saves soil, and therefore we’ve viewed this work as a big tent into which we’re welcoming as many people as possible,” said Tessa Peters of The Land Institute. Bill Tracy with the University of Wisconsin-Madison said, “In order to make a contribution to the future of humanity, I need other people to take the genes I’ve put together and to continue working with them.” Tomato breeder Craig LeHoullier reiterated the importance of all types of seed access, including in situ and ex situ preservation: “The varieties that we can grow successfully are going to change,” he said. “The secret to our future success could be locked in some obscure varieties that people don’t even like to grow that much.” For this reason, when approaching solutions to intellectual property rights and seed biodiversity, seed growers should keep in mind that IPR strategies that restrict breeding limit adaptive possibilities for farmers in the future.

An ethical seed system that prioritizes biodiversity should maintain a spirit of reciprocity and should not further narrow the commons. If seeds used in a breeding project were obtained from the commons, then the progeny of those projects should also be available for breeding. Conversely, communities that have traditionally kept particular varieties, even if they have been separated from them for some time, should have the right to decide who will maintain those varieties in the future. Maintaining biodiversity will be important, especially as the climate continues to change. The organic seed community seems to accept the stewardship of biodiversity as a premise from which ethical, transparent, and fair seed exchange practices should emerge.

STEWARDSHIP OF BIODIVERSITY

– Biodiversity is the foundation of a healthy seed system and will be a key component of climate-adapted agriculture.
– Maintaining biodiversity relies on the free exchange of seeds by farmers and plant breeders.
– Conserving biodiversity does not mean that seed keepers should be obliged to share or exchange culturally important varieties. 

Much depends on decisions made at the working level by countries, by the private sector, by organizations (including civil society groups), and by individuals. Practicing respect, building trust, and behaving in good faith with current and future generations are vital ingredients to fostering unhampered exchange, research, and development.

– Cary Fowler, “Complementary and Conflict,” Seeds of Resistance, Seeds of Hope: Place and agency in the conservation of biodiversity

Conclusion

For 10,000 years, people have been selecting, exchanging, and adapting seeds to regional environments. The diversity of crop varieties we enjoy today is owed to the flow of genetic resources from one community to the next; however, until the rise of colonization, these exchanges were made on much more localized terms and usually with reciprocal benefits. Over the past 100 years, the rise of industrial agriculture and capitalist commodification of food has resulted in increasing privatization of crop seeds and their inherent genetic material—a structure that appropriates seeds and the process of their development for profit and fails to return tangible benefits to originators of the qualities that make them valuable. Because seeds are living organisms that evolve and reproduce, conceptualizing them as inventions both in law and in economy, has created significant confusion and uncertainty for seed growers who wish to engage in seed saving and/or plant breeding in both a financially viable and ethical way.

Twice Congress developed specific protections that would allow for plant breeders to establish market presence, control quality, and recoup the investment costs of developing new varieties through traditional breeding methods. Because traditional breeding can take many years and resources before resulting in stable, marketable populations, such protections are sometimes necessary to keep projects afloat. Neither the PVP nor plant patents restrict research—a critical component of the seed system, which builds on past adaptations to adjust to new environmental pressures. By contrast, utility patents and restrictive licensing contracts can expressly prohibit the use of protected seeds in research, resulting in an increasingly narrowed commons and exponential concentration of market power in the industrial seed market. Further, because utility patents are difficult to pursue and to challenge, plant varieties and traits that are already in circulation are at risk of being claimed by those with the most resources to do so, instead of by those who are most responsible for their development.

Seed growers and plant breeders who are averse to the patent system have forged their own communal understanding of how best to respect each other’s work, fairly compensate those whose seeds they benefit from, and to recoup investment costs on new varieties without restricting the same privileges from others. This system of understanding has yet to be codified in a formal process, resulting in some confusion about what can be expected in the honor system and how and under which conditions bad actors should be deterred. The standards put forth by several groups, including OSSI, public breeders, and different seed banks, could provide guidance for such codification; however, because there is such a diverse range of projects and needs in plant breeding, it is likely that no single code of conduct will work for all.

This guide focuses primarily on individual perspectives and responses to the IPR question, and while community-level best practices can help to mitigate some of the more onerous symptoms of IP overreach, the problem is rooted in bad policy. Last year, President Biden signed an Executive Order on Promoting Competition in the American Economy (E.O. 14036), the results of which has led to a USDA investigative report and recommendations related to public concerns about competition in the commercial seed trade and the impacts of IPR on plant breeders, seed growers, and society’s ability to respond to climate change. These recommendations have the potential to re-distribute power in a way that ground-up responses to consolidation and IPR overreach have not.

Seed growing is marked by seemingly opposing truths: seed-bearing crops are naturally evolving organisms and the result of careful and intentional human breeding. They are our livelihoods and our living relatives. For this reason, there is no silver bullet strategy on IPR for all agroecological and organic seed growers. Instead, people in the organic seed community are creating their own response, depending on goals, finances, and their relationship to seed. Until economic and political forces that have enabled capitalism to control our food system are brought into check, our strength is in our power as a community—our power to uphold and to uplift, to communicate openly and with compassion and understanding. Seeds must be proliferated in order to be preserved. Defining ways for people to share their seeds widely while maintaining the integrity and viability of those projects can help to improve the diversity, and therefore resilience, of our food system.

Endnotes

1. Organisation for Economic Co-operation and Development. Concentration in Seed Markets: Potential Effects and Policy Responses (2018).

2. Philip H. Howard, “Intellectual Property and Consolidation in the Seed Industry.” Crop Science 55, no. 6 (2015): 2489-2495.

3. Mark D. Janis, “Intellectual Property Issues in Plant Breeding and Plant Biotechnology.” (2002).

4. Kiki Hubbard, “A Short History of Intellectual Property Rights on Seed and What Farmers should Know.” The Natural Farmer Plant Breeding (2019).

5. Glenn E. Bugos and Daniel J. Kevles, “Plants as Intellectual Property: American Practice, Law, and Policy in World Context.” Osiris 7, (1992): 81.

6. Robert Cook, “The First Plant Patent.” Journal of Heredity 22, no. 10 (1931): 313.

7. Brad Sherman, “Climbing Rose.” In A History of Intellectual Property in 50 Objects, edited by Op den Kamp, Claudy and Dan Hunter, 184. Cambridge: Cambridge University Press, 2019.

8. Jack Kloppenburg, “Re-Purposing the Master’s Tools: The Open Source Seed Initiative and the Struggle for Seed Sovereignty.” The Journal of Peasant Studies 41, no. 6 (2014): 1225-1246.

9. Debra L Blair, “Intellectual Property Protection and its Impact on the US Seed Industry.” The Drake Journal of Agricultural Law 4, no. 1 (1999): 297.

10. Craig Borowiak, “Farmers’ Rights: Intellectual Property Regimes and the Struggle Over Seeds.” Politics & Soci- ety 32, no. 4 (2004): 511-543.

11. Kloppenburg, “Repurposing the Master’s Tools.”

12. Susan E. Gustad,”Legal Ownership of Plant Genetic Resources – Fewer Options for Farmers.” Hamline Law Review 18, no. 3 (1995): 464.

13. USDA ARS, “Plant Variety Protection Act”

14. Blair, “Intellectual Property Protection.” 311.

15. Ibid., 317.

16. Jack Ralph Kloppenburg, First the Seed: The Political Economy of Plant Biotechnology. 2nd ed. Madison: University of Wisconsin Press, 2005.

17. Blair, “Intellectual Property Protection.” 320-325.

18. Pat Mooney, “Too Big to Feed: Exploring the Impacts of Mega-Mergers, Consolidation and Concentration of Power in the Agri-Food Sector.” (2017).

19. Phil Howard, “Seed Industry Structure: 1996-2018.”

20. Jack Kloppenburg, “First the Seed.” 66

21. Devlin Kuyek, “Sowing the Seeds of Corporate Agriculture: The Rise of Canada’s Third Seed Regime.” Studies in Political Economy. 80, no. 1 (2007): 31.

22. Alexandra Lyon, Harriet Friedmann, and Hannah Wittman, “Can Public Universities Play a Role in Fostering Seed Sovereignty?” Elementa (Washington, D.C.) 9, no. 1 (2021): 2

23. Robert Lee, Tristan Ahtone, Margaret Pearce, Kalen Goodluck, Geoff McGhee, Cody Leff, Katherine Lanpher, and Taryn Salinas, “Land Grab Universities: A High Country News Investigation.” High Country News, 2020.

24. United States Department of Agriculture.” Annual Reports of the Department of Agriculture” Report of the Secretary of Agriculture. Reports of Chiefs. (1900): xxxi

25. Anjali Vats, The Color of Creatorship: Intellectual Property, Race, and the Making of Americans Stanford University Press, 2020: 75

26. United States Department of Agriculture. “Manual of Procedures of the National Plant Germplasm System.” (2012): 3.

27. Ibid, 1.

28. United States Department of Agriculture- Agricultural Research Service. “US National Plant Germplasm System Distribution Policy.”

29. Kristina Hubbard, Jared Zystro, and Liza Wood. State of Organic Seed. Organic Seed Alliance (2022): 52.

30. Cary Fowler, “Complementarity and Conflict: In Situ and Ex Situ Approaches to Conserving Plant Genetic Resources.” Seeds of Resistance, Seeds of Hope: Place and Agency in the Conservation of Biodiversity (2013): 196-213.

31. Kelly Kinscher and Dana Hurlburt. “Huron Smith’s Ethnobotany of the Hocak (Winnebago).” Economic Botany 52, no. 4 (1998): 353..

32. United States Patent and Trademark Office. “Types of Patents.” Accessed April 5, 2022.

33. Ibid.

34. United States Patent and Trademark Office. “2106 Patent Subject Matter Eligibility [R-10.2019]”

35. William F. Tracy, Julie C. Dawson, Virginia M. Moore, and Jillene Fisch, “Intellectual Property Rights and Public Plant Breeding: Recommendations, and Proceedings of a Conference of Best Practices for Intellectual Property Protection of Publicly Developed Plant Germplasm.” 2016: vi.

36. USDA. “Recent Trends in GE Adoption.” (2020).

37. Borowiak, “Farmers’ Rights.” 512.

38. E. C. Brummer, Wesley T. Barber, Sarah M. Collier, Thomas S. Cox, Randy Johnson, Seth C. Murray, Richard T. Olsen, Richard C. Pratt, and Ann Marie Thro. “Plant Breeding for Harmony between Agriculture and the Environ- ment.” Frontiers in Ecology and the Environment 9, no. 10 (2011): 561-568.

39. Vats, Anjali. The Color of Creatorship: Intellectual Property, Race, and the Making of Americans. 73.

40. Ibid.

41. Ernesto Hernandez-Lopez, “GM) Corn, Mexico, and Coloniality.” Vanderbilt Journal of Entertainment & Technology Law 22, no. 4 (2020): 766.

42. Vandana Shiva, Protect Or Plunder?: Understanding Intellectual Property Rights Zed Books, 2001. 57-58.

43. Amanda Raster, and Christina Gish Hill. The Dispute Over Wild Rice: An Investigation of Treaty Agreements and Ojibwe Food Sovereignty.” Agriculture and Human Values 34, no. 2 (2017): 267-281.

44. Winona LaDuke, “Ricekeepers.” Orion (2007).

45. Daniela Soleri and David A. Cleveland. “Hopi Crop Diversity and Change.” Journal of Ethnobiology 13, no. 2 (1993): 20.

46. Aaron Levin, “The Heart of the Hopi.” American Indian 20, no. 3 (2019).

47. Christopher M Holamn, “How Real is the Concern that Seed Patents Will Turn Farmers into Inadvertent Infringers?” Biotechnology Law Report 33, no. 5 (2014).

48. Ibid.

49. Debbie Barker, Bill Freese, and George Kimbrell, Seed Giants Vs. US Farmers: A Report by the Center for Food Safety & Save our Seeds. Center for Food Safety (US), 2013.

50. Mooney, “Too Big to Feed.” 65.

51. Cathleen McCluskey and Kristina Hubbard. “Op-Ed: How Patents Threaten Small Seed Companies.” Civil Eats, 2020.

52. Richard Molinar, “Traditional Plant Breeding Vs. Genetic Engineering – a Primer.” Accessed April 5, 2022.

53. USDA. “Recent Trends in GE Adoption.” (2020).

54. Kent, Brittan,”Methods to Enable the Coexistence of Diverse Corn Production Systems.” (2006).

55. USPTO, “Manual of Patent Examining Procedure.”

56. Michael D. Frakes and Melissa F. Wasserman, “Is the Time Allocated to Review Patent Applications Inducing Examiners to Grant Invalid Patents? Evidence from Microlevel Application Data.” The Review of Economics and Statistics 99, no. 3 (2017): 552.

57. Ibid.

58. Mark A. Lemley and Bhaven Sampat, “Examiner Characteristics and Patent Office Outcomes.” Review of Economics and Statistics 94, no. 3 (2012): 821.

59. USPTO Patent Technology Monitoring Team. US Patent Statistics Chart.

60. USPTO. Patents Production, Unexamined Inventory and Filings Data February 2022.

61. Michael D. Frakes and Melissa F. Wasserman. “Does Agency Funding Affect Decisionmaking?: An Empirical Assessment of the PTO’s Granting Patterns.” Vanderbilt Law Review 66, no. 1 (2013): 71.

62. Michael D. Frakes and Melissa F. Wasserman, “Is the Time Allocated to Review Patent Applications Inducing Examiners to Grant Invalid Patents? Evidence from Microlevel Application Data.” The Review of Economics and Statistics 99, no. 3 (2017): 552.

63. Brian Hickman and Malgorzata Kulczyck. “Using Artificial Intelligence to Route Patent Applications through a Patent Examination Pipeline.” Accessed April 11, 2022.

64. Gerald J. Holmes, Peter S. Ojiambo, Mary K. Hausbeck, Lina Quesada-Ocampo, and Anthony P. Keinath. “Resurgence of Cucurbit Downy Mildew in the United States: A Watershed Event for Research and Extension.” Plant Disease 99, no. 4 (2015): 428-441.

65. Carolyn Beans, “Scientists are Fighting for the Stricken Pickle Against this Tricky Disease.” National Public Radio, 2018.

66. USPTO. Patent Classification.

67. Cydnee Bence and Emily Spiegel. A Breed Apart: A Plant Breeder’s Guide to Preventing Patents through Defensive Publication. Center for Agriculture and Food Systems: University of Vermont Law School. (2019):17

68. Isabel López Noriega, “Defensive Protection of Farmers’ Varieties.” Farmers’ Crop Varieties and Farmers’ Rights.

69. Cydnee Bence and Emily Spiegel. A Breed Apart. 26.

70. D. D. Ellis, K. Garland‐Campbell A., J. A. Grotenhuis, M. M. Jenderek, and J. F. Pedersen. “Crop Registration: The Pathway to Public Access of Plant Genetic Materials to Build Crops for the Future.” Crop Science 50, no. 4 (2010): 1157.

71. Juan M. Osorno, Albert Vander Wal J., John Posch, Kristin Simons, Kenneth F. Grafton, Julie S. Pasche, Giseli Valentini, and Marcial Pastor‐Corrales. “A New Black Bean with Resistance to Bean Rust: Registration of ‘ND Twi- light’.” Journal of Plant Registrations 15, no. 1 (2021): 28-36.

72. Reto Hilty, Pedro Henrique D. Batista, and Suelen Carls. “Traditional Knowledge, Databases and Prior Art–Op- tions for an Effective Defensive use of TK Against Undue Patent Granting.” Intellectual Property and Cultural Heritage, Cheltenham: Elgar, Max Planck Institute for Innovation & Competition Research Paper no. 21-23 (2021):7.

73. Council of Scientific & Industrial Research. “Traditional Knowledge Digital Library (TKDL).”

74. Ibid.

75. Hilty, Henrique, Carls,”Traditional Knowledge, Databases and Prior Art–Options for an Effective Defensive use of TK Against Undue Patent Granting.” 17-18.

76. Paul Morgan, “Should You Submit Third-Party Prior Art?” Accessed February 27, 2022.

77. Crouch, Dennis. “USPTO Third Party Submissions.” Accessed February 27, 2022. https://patentlyo.com/pat- ent/2022/02/uspto-third-submissions.html.

78. USPTO. “USPTO Fee Schedule.” https://www.uspto.gov/learning-and-resources/fees-and-payment/uspto-fee- schedule.

79. Dan Smith and Rick Bisenius. “Challenging Patents through Post-Grant Proceedings: What are Your Options?”

80. Ibid.

81. USPTO. “USPTO Fee Schedule.”

82. Daniel Robinson, Confronting Biopiracy: Challenges, Cases and International Debates. London: Taylor & Francis Group, 2010.

83. Letitia M. McCune, “The Protection of Indigenous Peoples’ Seed Rights during Ethnobotanical Research.” Ethnobiology Letters 9, no. 1 (2018): 67-75.

84. Graham Durfield, Intellectual Property, Biogenetic Resources and Traditional Knowledge Earthscan, 2010.

85. L. Paollottini, E. Garcia, J. Kami, G. Barcaccia, and P. Gepts. “The Genetic Anatomy of a Patented Yellow Bean.” Crop Science 44, no. 3 (2004): 968-977.

86. Sangeeta Shashikant and Asmeret Asghedom. “The ‘Enola Bean’ Dispute: Patent Failure & Lessons for Developing Countries.” Third World Network, 2009.

87. MPEP § 717.01

88. Blair, “Intellectual Property Protection.” 314.

89. USPTO. “USPTO Fee Schedule.”

90. McCune, “The Protection of Indigenous Peoples’ Seed Rights during Ethnobotanical Research.” 69.

91. Jian He and M. Monica Giusti. “Anthocyanins: Natural Colorants with Health-Promoting Properties.” Annual Review of Food Science and Technology 1, (2010): 163-187.

92. Margaret Smith, “What are the Funding Problems?” in Tracy, William F., Julie C. Dawson, Virginia M. Moore, and Jillene Fisch. “Intellectual Property Rights and Public Plant Breeding: Recommendations, and Proceedings of a Conference of Best Practices for Intellectual Property Protection of Publicly Developed Plant Germplasm.” College of Agricultural and Life Sciences, University of Wisconsin – Madison, August 12 -13, 2016: 96.

93. Kristina Hubbard, “Seed Privatization and the Path Toward Equitable Exchange.” 2014. In Tracy, Bill and Michael Sligh. “Proceedings of the 2014 Summit on Seeds and Breeds for 21st Century Agriculture.” Rural Advancement Foundation International, Washington DC. 2014: 199.

94. Lyon, Friedmann, Wittman. “Can Public Universities Play a Role in Fostering Seed Sovereignty?”

95. Ibid.

96. Tracy, William F., Julie C. Dawson, Virginia M. Moore, and Jillene Fisch. “Intellectual Property Rights and Public Plant Breeding: Recommendations, and Proceedings of a Conference of Best Practices for Intellectual Property Protection of Publicly Developed Plant Germplasm.” College of Agricultural and Life Sciences, University of Wisconsin-Madison, August 12 -13, 2016.

97. E. Charles Brummer, “Response to What are the Funding Problems?” College of Agriculture and Life Science, University of Wisconsin – Madison, 12–13 Aug. 2016.

98. Lyon, Friedmann, Wittman. “Can Public Universities Play a Role in Fostering Seed Sovereignty?”

99. “Trademark Primer.” IP Handbook of Best Practices.

100. USPTO. “USPTO Fee Schedule.”

101. W. T. Tucker and G. S. Ross. “Use of Trademarks in a Plant-Licensing Program.” Intellectual Property Management in Health and Agricultural Innovation: A Handbook of Best Practices, Volumes 1 and 2 (2007): 1059-1067.

102. World Intellectual Property Organization. “Trade Secrets.”

103. Coca-Cola Company. “Who Knows the Formula of Coca-Cola?”

104. Julie E Zink, “When Trade Secrecy Goes Too Far: Public Health and Safety should Trump Corporate Profits.” Vanderbilt Journal Entertainment & Technology Law 20, (2017): 1135.

105. Bloomberg News. “Cargill Pays $100 Million to Settle Suit.” New York Times, May 17, 2000.

106. Hubbard, Zystro, and Wood. State of Organic Seed. 27

107. McCune, “The Protection of Indigenous Peoples’ Seed Rights during Ethnobotanical Research.” 69

108. UNCTAD. The Convention on Biological Diversity and the Nagoya Protocol: Intellectual Property Implications: United Nations, 2014.

109. Convention on Biological Diversity. “The Nagoya Protocol on Access and Benefit-Sharing: A Factsheet.”

110. Aysegul Sirakaya, “Balanced Options for Access and Benefit-Sharing: Stakeholder Insights on Provider Country Legislation.” Frontiers in Plant Science 10, (2019): 1175.

111. Fowler, Cary. “Complementarity and Conflict.”

112. Michael Halewood, “What Kind of Goods are Plant Genetic Resources for Food and Agriculture? Towards the Identification and Development of a New Global Commons.” International Journal of the Commons 7, no. 2 (2013):300.

113. Isabel L. Noriega, “Why Mutually Supportive Implementation of the ITPGRFA, the Convention on Biological Diversity and the Nagoya Protocol is Necessary and Important.”

114. Fowler, “Complementarity and Conflict: In Situ and Ex Situ Approaches to Conserving Plant Genetic Resources.” 205 – 206.

115. Carol S. Deppe, “Freelance Plant Breeding.” Plant Breeding Reviews 44, (2021): 181.

116. C.R. Lawn, “Restoring the Seed Commons: Call for Clarity on Intellectual Property Rights.” Acres/USA, 2019.

117. Lisa M. Hamilton, “Linux for Lettuce.” The Virginia Quarterly Review 90, no. 3 (2014): 56.  

118. OSSI

119. Kloppenburg, “Repurposing the Master’s Tools.” 1226

120. OSSI Varieties

121. Kloppenburg, “Repurposing the Master’s Tools.” 1227

122. Joseph Nye, “Soft Power: The Origins and Political Progress of a Concept.” Palgrave Communications 3, no. 1 (2017): 1-3.

123. OSSI FAQs

124. Deppe, “Freelance Plant Breeding.” Plant Breeding Reviews 44, (2021): 171.

125. State of Organic Seed. 20

126. See also Dawson, J. C., V. M. Moore, and W. F. Tracy. “Establishing Best Practices for Germplasm Exchange, Intellectual Property Rights, and Revenue Return to Sustain Public Cultivar Development.” Crop Science 58, no. 2 (2018a): 469-471.

127. Ibid.

128. Native Seeds/SEARCH. “Intellectual Property Rights: Principles for Honoring Indigenous Knowledge.” Seedhead News no. 47 (1994): 5. https://cdn.shopify.com/s/files/1/0157/0808/files/SeedheadNews47-1994.pdf?711.

129. Vats, The Color of Creatorship: Intellectual Property, Race, and the Making of Americans. 5

130. Catherine Phillips, Saving More than Seeds: Practices and Politics of Seed Saving Routledge, 2016.

131. Kloppenburg, First the Seed. 37.

132. Deppe, “Freelance Plant Breeding.” 171-122.