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 Essay - mar/apr 2005
Remembering a passing tradition
James C. Delouche
Professor Emeritus Mississippi State University
It is good and important for us to remember things that are past or are passing, not in the rich and complex detail of M. Proust's Remembrance of Things Past, but with a fine balance between a sense of loss and a sense of gain. Several weeks ago I read a short article in the newspaper that caused me to recall and remember. The article reported on the outcome of a patent infringement suit brought by a seed company against a farmer for replanting seeds of a patent protected crop variety. The trial court's decision held that the patent had been infringed and the company was awarded damages. When the decision was announced the farmer was quoted as exclaiming, "I can't believe this, it is not natural, it just isn't right." For several days I kept thinking about the farmer's words and wondering what must have been his feelings as he learned during the trial that he never "owned" the seeds he purchased to plant the original crop, that essentially he had just "rented" them for one time use. Before all my sympathy gravitated to the farmer, however, I recalled that we are indeed witnesses to a powerful and pervasive evolution in the use and ownership of species and bio-forms that have served and sustained humanity since civilization arose on the fertile flood plains of the great rivers in Africa, Asia and the Middle East.
The Seed Saving Tradition
Saving seeds to plant the next crop is arguably the oldest and most ubiquitous agricultural practice. It originated with the first farmers more than 10,000 years ago and even today on a worldwide basis it is probably the major source of seeds for planting crops. In countries with a modern, commercial agriculture, however, the practice of seed saving is vanishing in the wake of progress in the same manner and at about the same rate as hand harvesting and animal power vanished from the farm just a generation or two ago. The pending demise of the age-old tradition of seed saving is the result of interacting technological developments, economic factors, regulations and judicial decisions. Advances in molecular biology and biotechnology have enabled the construction of life forms, e.g., plant varieties, with traits and responses that are not part of the natural variability of the species. The construction of such life forms or varieties was presented as an inventive process and the unique life-forms or varieties produced as inventions that were consistent with the purposes of patent law and met its specific requirements. Patents for unique life forms were awarded and have been upheld in the judicial system through the highest level.
Economic factors are, of course, crucial, in all research and development (R & D) activities but are especially controlling in the case of crop varieties and other life forms because they are multiplied rather than consumed or used up in most production processes and with reasonable care can be maintained indefinitely. The enormous investments involved in biotechnology R & D could be justified only with some adequate system(s) in place for recovering costs and producing a reasonable profit. The essential feature of the system would be provisions, legal or technical, that would permit breeders to acquire ownership and reproductive rights for the varieties they produced. Patent law constituted a near ideal system for awarding and protecting the proprietary rights of breeders and was preferred but was not available due to general public and legal skepticism that life forms were patentable. Two other systems, therefore, were devised and in use before the first life form patent was awarded for a microorganism about 1980. The development of hybrid varieties of maize in the 1930s and in later years of sorghum, rice, cotton, canola, most vegetables, etc., provided very adequate protection of breeders' rights through biological and technical mechanisms supported on the legal side by trade secrecy law. The ownership rights are secured through secrecy sanctioned by trade secrecy law regarding the inbred lines used to construct the hybrid varieties, while reproduction rights are retained more-or-less by default because of a substantial loss of yield associated with use of saved seeds, i.e., F2 seeds. The demise of the seed saving tradition began with the advent of hybrid varieties.
Since hybrid varieties were not possible or practical for many major crops, a legal system for securing and protecting the rights of breeders was slowly developed during the 1950s leading to the International Convention for the Protection of New Varieties of Plants in 1961, the establishment of the International Union for the Protection of New Varieties of Crops (UPOV) and ratification of the Convention in 1968 (subsequently revised in 1972, 1978, and 1991). The acquisition of breeder's rights through the legal protection of varieties is secured under national Plant Variety Protection (PVP) laws that conform to the provisions of the Convention. PVP laws came into force in the industrialized countries in the 1960s and 1970s (1970 in USA) and have provided adequate protection to private companies for major investments in conventional breeding programs of crop species for which hybrid varieties are not possible or practical. Protection under most PVP laws, however, turned out not to be as satisfactory as that available through the biological/technical mechanisms for hybrid varieties because a farmers' exemption was available and elected in most of the national PVP laws that permitted farmers to save seeds of protected varieties for planting on their own farms. While the farmers' exemption has become increasingly more selective and less available in some countries, public sentiment has kept it fully operative in most countries. Farmers can still save seeds of protected varieties for planting which, of course, decreases sales opportunities for the seed company owners of the varieties.
There are no exemptions in the protection of varieties under patent law using a combination of utility patents and licenses. Under provisions of the license, commonly termed the technology agreement, a farmer purchases only the use of patent protected seed, e.g., he rents the seed. The company owner of the patent retains ownership of the seeds and the right to specify the ways the seed can and cannot be used. The license or "rental agreement" permits the use of the seeds for planting one crop and prohibits saving
seeds for planting succeeding crops. I like to imagine as I did in the first paragraph of this essay that in his sorrowful lament, "I can't believe this, it is not natural, it just isn't right," the defendant farmer was reacting not just to the financial penalty but also to the shocking realization that he was just a "renter" of the seeds and not the owner
The End of Seed Saving?
Utility patents are primarily used for the protection of GM varieties while conventional varieties are commonly protected under PVP law. But even with the farmers' exemption under PVP law, the practice of seed saving is in rapid decline in the agriculturally advanced countries and I do view this situation with a real sense of loss. In farming communities around the world seed saving was (and is) a critical activity that is nearly always carried out with great care and in many places with substantial ceremony by farmers large and small. I can vividly recall spending many winter season days with my brother during our youth helping father select and prepare seed maize for the spring planting, stirring the saved cotton seed in the bin to promote drying and prevent heating, choosing sugar cane stems and potato tubers for planting, and helping mother save seeds of tomatoes, peppers, melons and all sorts of vegetables. Before I sink too deep into a sea of nostalgia, however, I need to recall that one of my high school teachers, the agriculture teacher, was very nostalgic about work horses and raised them commercially into the 1950s because he thought that tractors were too complex and expensive for most farmers and was sure that they would soon return to using animal power.
It is good and important for us to remember and reflect on how things were but we need to do so without resenting their passing. Progress involves change and change nearly always involves the loss of things with which we were familiar and comfortable. We are privileged to be both witnesses and participants in a biological revolution of equal if not greater impact on the human condition and endeavors as the industrial and information revolutions. The biotechnology that is just emerging from the revolution needs to be welcomed and wisely applied.
Seed saving is passing but it is not ending. It survives and will continue in the subsistence farming sectors around the world and in the gardening activities of the many of us who are afflicted by nostalgia and like to grow so-called "heritage" varieties of vegetables and ornamentals that we came to know in the gardens of our parents and grandparents.
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