The international coalition of “No Patents on Seeds” published a report on patents on seeds on the 23d of october. The report was prompted by the fact that the European Patent Office (EPO) has already granted several thousand patents on plants and seeds, with a steadily increasing number of patents on plants and seeds derived from conventional breeding. Around 2400 patents on plants and 1400 patents on animals have been granted in Europe since the 1980s. More than 7500 patent applications for plants and around 5000 patents for animals are pending. Amongst others, the EPO has already granted more than 120 patents on conventional breeding and about 1000 such patent applications are pending. The scope of many of the patents is extremely broad and very often covers the whole food chain from production to consumption.
From a distance, Jim Myers looks like an ordinary farmer. Most autumn mornings, he stands thigh-deep in a field of wet broccoli, beheading each plant with a single, sure swipe of his harvest knife. But under his waders are office clothes, and on his wrist is an oversized digital watch with a push-button calculator on its face. As his hand cuts, his eyes record data: stalk length and floret shape, the purple hue of perfect heads and the silver specks that foretell rot. At day’s end his broccoli goes to the food bank or the compost bin—it doesn’t really matter. He’s there to harvest information.
Myers is a plant breeder and professor of genetics at Oregon State University. The broccoli in his field has a long and bitter story, which he told me last September at the university’s research farm. We sat at a picnic table under a plum tree that had dropped ripe fruit everywhere; around our feet, the little purple corpses hummed with wasps that had crawled inside to gorge on sweet flesh. Myers has dark hair and dark eyes that are often set behind tinted glasses. In public, he rarely registers enough emotion to move the thick mustache framing his mouth. Still, as he talked about the broccoli his voice buckled, and behind those shadowy lenses his eyes looked hard and tense.
In 1966, a breeder named Jim Baggett—Myers’s predecessor at Oregon State—set out to breed a broccoli with an “exserted” head, which meant that instead of nestling in the leaves the crown would protrude on a long stalk, making harvest easier. The method he used was basic plant breeding: Mate one broccoli with another, identify the best offspring, and save their seed for the next season. Repeated over decades by Baggett and then Myers, this process produced the broccoli in the field that day. The heads were so nicely exserted, sparrows used them as a perch.
Most classical plant breeders will tell you that their work is inherently collaborative—the more people involved, the better. Baggett had used versions of another broccoli called Waltham, released by the University of Massachusetts in the 1950s, as part of the foundation for his original exserted-head lines. Hoping to advance its evolution by letting others work on it, he and Myers shared their germplasm (an industry term for seed) with breeders throughout the United States. One recipient was the broccoli division of Royal Sluis, a Dutch company that had a research farm in Salinas, California. Through the channels of corporate consolidation, that germplasm ended up with the world’s largest vegetable-seed company, Seminis, which in 2005 was bought by the world’s largest seed company, Monsanto. In 2011, Seminis was granted US Patent 8,030,549—“Broccoli adapted for ease of harvest”—whose basic identifying characteristic was an exserted head. More than a third of the original plant material behind the invention was germplasm that Baggett had shared in 1983.
As Seminis began previewing its Easy Harvest broccoli to the farm press in 2011, the company’s lawyers began calling Myers, requesting more samples of broccoli seed. The patent they held covered only a few specific varieties that the company had bred, but now they were applying to patent the trait itself—essentially, any sizeable broccoli with an exserted head. They needed the Oregon State plants for comparison to prove their invention was, in patent language, truly “novel.”
Last August, the examiner seemed dubious, writing, “Applicant is in possession of a narrow invention limited to the deposited lines; however, they are claiming any and every broccoli plant having the claimed characteristics.” The application was given a “Final Rejection.”
And yet, as Myers told me at the picnic table in September, “That’s not necessarily final.” Just before Thanksgiving, Seminis appealed, beginning a process that may last for years. As one intellectual-property manager who helps write patents for the University of Wisconsin told me, some examiners simply “cave and grant the broader claims as they get worn down by the attorneys’ arguments.” If Seminis receives the patent, their claim would likely encompass the plants growing in Myers’s plots at Oregon State, meaning they could sue him for infringement.
Myers is not alone in this predicament. Irwin Goldman, a professor at the University of Wisconsin, had been developing a red carrot for fifteen years when, in 2013, he learned that Seminis had an application pending for “carrots having increased lycopene content”—in other words, very red carrots. Likewise, Frank Morton, a small-scale, independent plant breeder in Oregon, had finally achieved a lettuce that is red all the way to its core, only to find that the Dutch seed company Rjik Zwaan had received a patent on that very trait. Their cases are just some of many.
When Myers talks about the issue, his frustration seems to turn him inward toward greater silence. But Morton is considerably less reserved. “It rubs me the wrong way that works of nature can be claimed as the works of individuals,” he said, his voice growing louder and louder. “To me, it’s like getting a patent on an eighteen-wheeler when all you did was add a chrome lug nut.”
Myers contends that, when applied to plants, patents are stifling. They discourage sharing, and sharing is the foundation of successful breeding. That’s because his work is essentially just assisting natural evolution: He mates one plant with another, which in turn makes new combinations of genes from which better plants are selected. The more plants there are to mix, the more combinations are made, and the more opportunities there are to create better plants. Even some breeders who work for the companies that are doing the patenting still believe in—indeed, long for—the ability to exchange seed.
“It’s this collective sharing of material that improves the whole crop over time,” Myers told me. “If you’re not exchanging germplasm, you’re cutting your own throat.”
If all of this seems like the concern of a specialized few, consider that plant breeders shape nearly every food we eat, whether a tomato from the backyard or the corn in the syrup in a Coke. Because of intellectual-property restrictions, their work increasingly takes place in genetic isolation and is less dynamic as a result. In the short term, that can mean fewer types of tomatoes to plant in the garden, or fewer choices for farmers and, by extension, consumers. In the long term, it could hinder the very resilience of agriculture itself. Having access to a large genetic pool is critical for breeders who are adapting crops to the challenges of climate change. Every time intellectual-property protections fence off more germplasm, that gene pool shrinks.
What infuriates Myers, though, is that patents such as the one Seminis is seeking don’t just impede sharing; they deter others from using their own germplasm. As the examiner noted, Seminis’s patent application claims essentially all broccoli with an exserted head of a commercial size. If Myers’s plants are too similar to those grown by Seminis, he won’t be able to release his own variety for fear of patent infringement. Even if he did, no farmer or seed company would use it lest they be sued for the same violation.
“If they get the patent, they really hold all the cards,” Myers said, wasps buzzing around his feet. “Then it comes down to at some point deciding whether to continue my program or to hang it up. Sell off the germplasm…” His voice trailed off. Then he gave a sad little laugh. The only buyer, of course, would be Seminis.
Fueled by both frustration and outrage, Myers, Morton, and Goldman helped establish a subtly radical group called the Open Source Seed Initiative (OSSI) in 2012. Operating under the radar, its mission was to reestablish free exchange by creating a reservoir of seed that couldn’t be patented—“a national park of germplasm,” Goldman called it. By 2013, the group had two dozen members, several of them distinguished plant breeders from public universities across the country.
OSSI’s de facto leader is Jack Kloppenburg, a social scientist at the University of Wisconsin who has been involved with issues concerning plant genetic resources since the 1980s. He has published widely about the concept behind OSSI, and his words are now echoed (even copied verbatim) by public plant-breeding advocates in Germany, France, and India. As he explains it, for most of human history, seeds have naturally been part of the commons—those natural resources that are inherently public, like air or sunshine. But with the advent of plant-related intellectual property and the ownership it enables, this particular part of the commons has become a resource to be mined for private gain. Thus the need for a protected commons—open-source seed. Inspired by open-source software, OSSI’s idea is to use “the master’s tools” of intellectual property, but in ways the master never intended: to create and enforce an ethic of sharing.
Kloppenburg’s office plays to caricatures of lefty academics: every flat surface stacked with books and papers, a poster of Karl Marx on the wall. At OSSI meetings, amid a sea of plaid button-downs, he sticks out in his collarless, hemp-looking shirt. But he is fiery and, as one OSSI member says, “persistent as hell.”
“The reason I’m doing this,” he said, leaning forward in his creaking swivel chair, “is that I’ve spent the last twenty-five years doing the other thing, and what have we got?” That “other thing” has been exploring nearly every possible avenue to put control of seeds back in the hands of farmers and public-minded plant breeders: orchestrating international treaties, challenging interpretations of patent law, lobbying to amend the laws themselves—in other words, slow change. Indeed, over the course of three decades, it has felt to Kloppenburg like barely any change at all. Now nearing retirement, he wants action. He sees open source as a kind of end run. “The beauty of it,” he said, “is that finally we get to create some space that is ours, not theirs.”
As Kloppenburg talked about OSSI, he covered territory from the monopolistic tendencies of the American Seed Trade Association to Colombian peasant protests to the little-known story of German prisoners of war being used as forced labor in American corn-breeding fields. He pulled a hulking dictionary from the bookshelf and read aloud the precise definitions of “ownership” and “property.” He made it clear that while OSSI’s practical goal was to create a reservoir of shared germplasm, its true mission was to redistribute power.
In this era of ownership, the consolidation of seed companies has meant the consolidation of control over germplasm, the industry’s most essential tool. The plant breeders behind OSSI decry that trend for the constraints it puts on their individual breeding work, but they also see its damage in global terms. As founding member Bill Tracy, a sweet-corn breeder at the University of Wisconsin, articulated in his paper “What is Plant Breeding?”: “Even if we assume that the one or two companies controlling a crop were completely altruistic, it is extremely dangerous to have so few people making decisions that will determine the future of a crop…. The future of our food supply requires genetic diversity, but also demands a diversity of decision makers.”
People who sell seeds have always struggled with an inconvenient reality: Their merchandise reproduces itself. In the past, this has meant that farmers needed to purchase it only once, and competitors could make a copy by merely sticking it in the ground. In order for seeds to become a commodity and generate a profit, there had to be a reason for people to buy them year after year. Over the course of the twentieth century, the industry devised certain solutions, including hybrid seeds and “trade-secret” protections for their breeding processes and materials. But perhaps the most effective solution is the application of intellectual-property rights, of which the utility patent is the gold standard.
More commonly associated with things like electronics and pharmaceuticals, the utility patent is a fortress of protection. It lasts for twenty years and allows even inadvertent violations to be penalized. Since the Patent Act of 1790, its intent has been to inspire innovation by giving exclusive rights to reproduce or use an invention, allowing its creator to reap a just reward. It was in exactly those terms that Monsanto’s Vegetable Communications Manager, Carly Scaduto, explained the Seminis exserted-head broccoli patent to me. “On average, it takes Monsanto vegetable breeders between eight and twelve years to develop and commercialize a new vegetable seed variety,” she wrote. “Obtaining patents [is a way] for us to protect our time, ideas and investment spent to develop those products.”
It took seed companies nearly a century to secure that protection. As early as 1905, industry leaders advocated “patent-like” protection for plants, but they ran up against society’s ethical resistance to patenting a product of nature. This view was famously aired by the United States Patent Office itself in 1889, in its denial of an application to patent a fiber found in pine needles. If it were allowed, the commissioner reasoned, “patents might be obtained upon the trees of the forest and the plants of the earth, which of course would be unreasonable and impossible.” But many plant breeders insisted that their work was on par with that of mechanical and chemical engineers. Their desire to achieve the same exclusive control over their inventions eventually led to the Plant Patent Act (PPA) of 1930. According to the Committee Report accompanying the Senate’s version of the bill, the purpose was to “assist in placing agriculture on a basis of economic equality with industry… [and] remove the existing discrimination between plant developers and industrial inventors.” Thomas Edison, already a household name for his own inventions, was enlisted to lobby for the bill, and later lauded the PPA’s passage to a reporter from the New York Times. “As a rule the plant breeder is a poor man, with no opportunity for material rewards,” he said. “Now he has a grubstake.”
What finally became law was in fact quite narrow. Instead of allowing utility patents for plants, the PPA created a new “plant patent,” which applied only to plants reproduced asexually, like roses or apples, whose limbs are cloned. It excluded plants that reproduce sexually, through seed—which included wheat, corn, rice, and nearly every other staple food crop. The official reasoning was that sexually produced offspring weren’t guaranteed to be identical replicas of the original plant—“true to type”—and so enforcement of a patent would be difficult. (It is notable, though, that an additional exclusion was made for tubers, which reproduce asexually but include potatoes—another indispensible food.) Writing in the Journal of the Patent Office Society in 1936, patent examiner Edwin M. Thomas explained the true reasoning: “The limitation, ‘asexually reproduced,’ was put in the law to prevent monopolies upon the cereal grains or any improvements thereof, while the limitation, ‘other than tuber-propagated’ was introduced to prevent patent monopolies on potatoes, etc.” Congress had condoned the general concept of patenting plants, but it had drawn the line at patenting seeds of the sort that farmers plant and people eat.
By midcentury, the official reasoning was moot. Advances in breeding had enabled seed producers to ensure that their plants would grow true to type, leading the industry to renew its efforts for protective legislation. Its first victory was the Plant Variety Protection Act, approved in a voice vote by a lame-duck session of Congress, on Christmas Eve, 1970. The act granted intellectual-property rights that were much like a patent, but it was tempered by concessions to those who continued to oppose the exclusive control an actual patent would have granted: Farmers were allowed to save and replant seed from protected varieties, and researchers could use them in breeding their own plants. The real victory—the one the industry had been seeking for nearly a century—happened in 1980, when the US Supreme Court ruled that life forms could be patented if they were a new “composition of matter” produced by human ingenuity. That case concerned bacteria, but in 1985 the US Patent Office extended the logic to plants. By the time this policy was affirmed by the Supreme Court in 2001, already 1,800 utility patents had been granted on plants, plant parts, and seeds.
The availability of this long-sought protection transformed the industry by solidifying the opportunity to treat seed as a proprietary technology. Already the promise of genetic engineering was attracting investment from international chemical companies and others whose experience lay more with developing industrial products than with breeding plants. Wielding this newfound, impenetrable intellectual-property protection, companies like Monsanto, Ciba-Geigy (now Syngenta), and Dow redesigned the business using a revolutionary metaphor: Seeds were software. Genetics were improved almost surgically, with breeders altering DNA the way programmers rewrite code. The resulting corn, soybeans, and other commodities were modular components of a larger agricultural operating system, designed to work only with the company’s herbicides. Even some labeling began to take a play from Microsoft: The seller’s licensing agreement was printed on the back of seed bags in six-point font. Users didn’t sign it; as with a box containing a copy of Microsoft Office, they agreed to it by simply opening the package. Among other things, those terms specifically prohibited use in plant breeding.
Market analysts Phillip McDougall calculated that in 1995, right around the time the software metaphor began to take hold, the global seed business was worth $14.5 billion. By 2013, it had grown more than 250 percent, to $39.5 billion. Transparency Market Research, which calculates a similar figure for 2013, forecasts the business will grow to $52 billion by 2018. In this context, the patent office’s 1889 assertion that patenting the “plants of the earth” would be unreasonable and impossible sounds dated, if not naïve. Seen through the lens of this new metaphor, patents make perfect sense. If seeds are software, then protecting them as intellectual property is a natural, even essential, requirement for their technological development. In a 2004 legislative study, the United Nations’ Food and Agriculture Organization explained that this encouraged breeders “to invest the resources, labour and time needed to improve existing plant varieties by ensuring that breeders receive adequate remuneration when they market the propagating material of those improved varieties.” In other words, innovation no longer grew out of sharing, it came from monopoly. “In the absence of a grant of exclusive rights to breeders,” the report concluded, “the dangers of free riding by third parties would be considerable.”
In 1997, as the laws of intellectual property had begun supplanting the ethic of sharing, a mild-mannered bean breeder named Tom Michaels also began thinking about seeds as software—but with radically different results. Michaels was struggling with the brave new world unfolding at his job in the University of Minnesota’s horticultural sciences department. Until recently, germplasm samples had simply been mailed between colleagues with no more than a friendly note, just as the exserted-head broccoli seed had been. But Michaels began to see this tradition of open exchange being curbed by legal documents that restricted research and demanded royalties. He tripped on the new vocabulary, which stipulated conditions about “unmodified derivatives” and “reach-through rights.”
“If you’re in plant breeding, you know you can’t do it on your own,” Michaels told me. “But I remember thinking, ‘If this is the direction we’re going, we all become islands.’ So what could we do to assure that we continued to work interrelatedly?”
During that time, Michaels’s computer-savvy son was messing around with alternative operating systems for his PC. Through him, Michaels learned about Linux and other software that was free to be used, altered, and shared by anyone. Linux came with a license that turned the concept of licensing on its head: Instead of restricting people from copying the product, it restricted people from restricting it or any of its offshoots. It marked the code indelibly as part of the commons.
One fateful morning in Minneapolis, Michaels awoke with a Linux-inspired epiphany: What if we did the same thing with our seeds? Just like hackers, he and his colleagues would make their germplasm “free” by attaching a license that kept it in the public domain. No one could patent or otherwise restrict it or its offspring. Over time, Jack Kloppenburg and others heard about the idea, and together they honed it into the shrewdly elegant concept of open-source seed.
When Michaels first presented his idea to a group of fellow bean breeders in 1999, it wasn’t greeted as a grand prophecy. Jim Myers was in the audience then and recalls that while he and others found it interesting, they simply didn’t feel a need for it. Intellectual property was on the rise, but utility patents were still rare in vegetable crops. There were, however, already more than 500 on maize, and at least 250 on soybeans; today, most germplasm of practical use for those plants is restricted as intellectual property, much of it by patents.
Because they comprise a smaller share of the world agricultural market, only recently have vegetables begun to attract the multinational investment and technological attention that commodities have had for decades. Also, because there are so many types of vegetables, and countless variations within each, they are much harder to blanket with intellectual property. Traded by gardeners around the world, vegetable seed still has a cultural identity—it is not yet simply software. Even within the industry, much of vegetables’ breeding and control of its germplasm remains in the public sector.
Kloppenburg sees vegetables as the realm where open source can take root. “Corn and soybeans don’t turn anybody on,” he told me. “Nobody eats corn and soybeans. But they do eat what our breeders are doing.” When he speaks with consumers about the open-source- seed concept, he asks them, “Do you want the same people who are breeding corn and soybeans to be making decisions about the stuff you buy at the farmers’ market? Or do you want Irwin’s beets and Irwin’s carrots?”
That Irwin is Dr. Irwin Goldman, the University of Wisconsin vegetable breeder in patent limbo with his red carrots. If Kloppenburg is the brains behind OSSI, Goldman is the conscience, as warm and sincere as Kloppenburg is intense. When asked a question, he sits with his head of curly gray hair tilted to one side, neck thrust forward, in a posture of really listening. When he answers, he often begins with, “That’s a great question.”
Curiously, despite his role as a founding member and unofficial vice president of OSSI, Goldman holds three utility patents on vegetables—two on beets, one on carrots. He explains that the patented vegetables are used to create industrial dyes and have little crossover with food plants. Plus, it was the university that sought the patents in his name. Still, Goldman offers the disclosure like a personal confession. His explanation for going along with it is that he was young and foolish, a new professor seeking tenure. At the time, his only reference point was his grandfather Isadore, a poor Russian immigrant who had designed and managed to patent a unique barber coat that didn’t collect hair in its pockets. His family had always been deeply proud of Isadore. When Goldman found himself listed as the inventor of those beets and carrots, he flushed with the honor of this parallel achievement.
“But over time,” he told me, “the experience of doing it made me realize what the implications of patents like those are. I asked myself, What would make me feel like I had made a contribution to the future—to a sustainable future?” After a hiatus during which he served as the college’s dean, he returned to breeding and devoted the rest of his career to developing germplasm that is “free and clear.”
Goldman agrees with Kloppenburg that vegetables are the most likely arena for OSSI to come to life. In his more hopeful moments, he envisions a food label alongside “organic” and “fair trade” that tells consumers their food is “open source.” But, he warns, if they are going to claim any significant amount of genetic territory, OSSI needs to act fast. Patents already cover everything from “low pungency” onions to “brilliant white” cauliflower, and a gold rush is taking place, with seed companies scrambling to claim what territory remains. Since 2000, lettuce alone has garnered more than one hundred patents; an additional 164 are pending. When Goldman went online to show me Seminis’s red-carrot application, his search brought up another, newer application for a different red carrot that he hadn’t even known about. During the writing of this article, seven more applications for patents on carrots have been filed.
“Open source still has a chance with vegetables, but our window is only as long as the bottleneck at the patent office,” Goldman said. “It could be a matter of less than a decade before what has happened with corn happens with crops like carrots and onions.”
On a sunny August day, at a research station in Mount Vernon, Washington, the men and women of OSSI were arranged around a flotilla of conference tables. The group was almost comically homogenous in appearance: two-dozen men with gray hair, glasses, and collared shirts; a dozen women, young and athletic, mostly graduate research assistants. Kloppenburg sat at the head of the tables in a linen shirt and a turquoise necklace. Goldman was at his side.
The group had convened in order to finally transition open-source seed from a clever idea to a legally defensible system. They were all clear on the basic principle—that, as Kloppenburg has written, “the tools of the master are repurposed in a way that…actively subverts the master’s hegemony.”But an hour into determining exactly how to do that, eyelids were drooping. The coffee machine began gurgling out refills. “OSSI has indeed found,” Kloppenburg would later write, “that the tools of the master are technically very cumbersome.”
A sweet-corn breeder named Adrienne Shelton made the case that the “political jujitsu” of open-source software wouldn’t work for seeds. When computer code is written, she explained, the author automatically gets copyright. That ownership allows the author to then take out a copyleft that says the material can be used freely. But plant breeding isn’t governed by copyright law, and by breeding a plant one does not automatically own it. One would need to patent the plant first in order to then claim the “patent left” of declaring it open source. “Most of the people that would be supportive of what we are trying to do as open source,” Shelton said, “they probably would be very, very skeptical if we said, ‘Well, first we have to patent it.’”
An alternative would be to employ another of the master’s tools: contract law. No patent would be necessary. Instead, before receiving germplasm, a person would sign a license agreeing to the open-source rules. On the table in front of Kloppenburg lay a draft of such a license, but no one could suffer the legalese long enough to survive even the first page in that cold pile of paper.
Goldman tilted his head and looked at the license with concern. “I can’t imagine handing over a vial of seed and, oh, let me go to the copy machine and give you this seven-page, single-spaced document,” he said. “It seems incompatible with what we’re trying to do: the open seed, and then a license that if you want to understand, you need to ask your attorney.”
Discussion turned to the quick and dirty “bag tag” licenses modeled on the stickers that sealed boxes of software; by opening the box or bag, the user agrees to the terms. Could a similar mechanism be used to mark seed as open source? Would it be legally binding? No one was sure.
Kloppenburg directed the group’s attention to a series of slides on the screen behind him. They were advertisements for private security firms and other organizations that enforce plant-related intellectual-property rights in the United States, Europe, and South America. Many of the largest seed companies are partners, as are numerous land-grant universities, including the one where this meeting was being held. The “Farmer’s Yield Initiative,” or FYI, offered a toll-free hotline where callers could submit anonymous tips about people using patented seed illegally.
Heads shook in disbelief and disgust, but the point had been made: Intellectual-property protections work because of deterrence; the ill-fitting metaphor of seeds as software was held in place by fear. None of the OSSI members I asked was able to name a plant breeder who had been sued for patent infringement or broken contracts, and yet nearly every one of them was willing to abandon material he or she had been working on for years rather than test how forgiving the intellectual-property holders might be. Later, Bill Tracy, the sweet-corn breeder, put it bluntly: “If you fear the company, you’re not going to cross it and the patent works. If you don’t fear the company, it doesn’t work. It comes down to who has the most lawyers.”
Looking around the room, it was clear this was not the group with the most lawyers. They had had one, who drafted their open-source license pro bono. But the week before, she had stopped returning their calls.
After the meeting, I spoke with Andrew Kimbrell, a public-interest lawyer and the executive director of the Center for Food Safety. He has led numerous legal challenges to plant patenting, and he certainly sympathizes with OSSI’s intentions. “In the midst of climate disruption,” he said, “having a diverse seed supply created through a robust public breeding program is a food security and national security issue. For that alone we should get rid of this patent issue and invest in public plant breeding.”
He advocated slower kinds of change: Legislation to return to the days when farmers and plant breeders were free to use any seed as they wished. More legal challenges to puncture the precedent that leads courts to rule consistently in favor of intellectual property protections. He even encouraged the basic, boring act of publishing research on plant breeding, since the most effective way to prevent something from being patented is to have documented that the thing already exists.
But the jujitsu that OSSI was trying to pull off he found “problematic” at best. “Just because you declare something open source doesn’t mean it’s off limits,” he said. “It could simply mean that you passed up your chance to get to the patent office.”
In the following months, Kloppenburg, Goldman, and a few others began meeting weekly to try to salvage the idea and launch it, somehow, before another growing season slipped by. They spoke to half a dozen lawyers, who confirmed that the licenses wouldn’t work. They were advised to patent their seed. “I never wanted to hire lawyers,” Goldman told me, exasperated. “I don’t want to be in the business of tracking licenses. I just want to free the seed.”
The reason OSSI stumbled in trying to make like computer hackers and open source their seed wasn’t just their naïveté with legal matters. In a way, the larger problem was the metaphor itself. Seeds are not software, they are living entities that grow and reproduce. Indeed, that’s the reason why the industry sought intellectual-property rights in the first place. But those protections can’t truly contain biology—seeds slip right through barriers made of words. If you want to reproduce a patented soybean, just lift one from a farmer’s field at harvest time and plant it in a pot. Without deterrence, a plant-utility patent is just an expensive piece of paper.
Even with a fleet of lawyers, chances are OSSI could never outsmart the intellectual-property system: Normally patents and licenses need to last for only one generation of plants; they say the seed can’t be planted back, and that’s that. But open source was supposed to allow the material to proliferate, which means OSSI would need to make sure that its license accompanied every new generation of plant—an exponentially expanding demand. Enforcing that viral replication would be nearly impossible. Without it, the seed would go right back to the unprotected commons, where anyone could claim it and patent it. The fluid nature of seeds, their natural impulse to regenerate, is both the impetus for the open-source concept and its legal undoing.
In January, the group drew up a new license. This time, they dispensed with the legalese altogether and instead wrote from their hearts. At just three sentences long, it wasn’t much of a legal document; it would never stand up in court. Instead, they would print it on the outside of each packet, just as Seminis does theirs, but with the opposite effect. “This Open Source Seed pledge is intended to ensure your freedom to use the seed contained herein in any way you choose, and to make sure those freedoms are enjoyed by all subsequent users,” it read. “By opening this packet, you pledge that you will not restrict others’ use of these seeds and their derivatives by patents, licenses, or any other means.”
Goldman toyed with the idea of also printing the pledge on slips of paper to be included inside the packet, like fortunes in a fortune cookie, to encourage people to pass it along. “I’m coming to see it more as a performance-art piece,” he told me brightly.
Despite his optimism, the group was admittedly disappointed. The goal had been to replace their defensive stance around intellectual property with a legal mandate. “Instead of just saying, ‘Oh, please don’t patent these things, it’s not right,’” Kloppenburg said, “we wanted a commons protected by law.” Now they were back to relying on the thin armor of ethics and morality for protection. They were back to slow change.
But with a blue-sky tone, Kloppenburg said that the true objective had never been to create a license per se. Instead, it had been to create a positive alternative to the intellectual-property regime. He was confident they could still do as much. The open-source idea had generated enthusiasm from all corners of the agricultural world. (Even the inventor of the Seminis red carrot, an old-school plant breeder caught in the tangle of the modern industry, had expressed his support.) This signaled to Kloppenburg that perhaps finally there was enough momentum to build an American seed movement big enough to have an impact.
OSSI was one of many nuclei organizing around the larger topic of seeds. Over the previous two years, the national seed-swapping nonprofit Seed Savers Exchange had grown its membership by 33 percent—to 13,000 gardeners. Later, in 2014, Vermont would pass the first law in the country requiring the labeling of all foods containing genetically modified ingredients, a goal anti-biotech activists had sought for years. But there was still no concerted, sustained effort around that most fundamental issue of control and ownership, as there was in other countries. Kloppenburg pointed to Canada, where the National Farmers Union had been waging war against increased intellectual-property protections, and to countries throughout the developing world, where seed issues were an integral part of the international struggle for peasant rights. Across the Atlantic, there had been an uproar for more than a year over European Patent 1,597,965: “Broccoli type adapted for ease of harvest”—granted to Seminis in May 2013. As the title suggests, the claim is essentially identical to the company’s American patent on exserted-head broccoli. But while Jim Myers was about the only person upset about the US version, a coalition of twenty-five organizations from Europe and India filed a formal opposition to the European patent within months of its approval. Along with the requisite paperwork requesting that it be revoked, they delivered 45,000 signatures from supporters.
“Patents on naturally occurring biodiversity in plant breeding are an abuse of patent law,” the opposition statement read, “because instead of protecting inventions they become an instrument for the misappropriation of natural resources.” *
Their argument centers around a single line in the European Patent Convention, Article 53b, which states that patents shall not be granted on “plant or animal varieties or essentially biological processes for the production of plants or animals.” Recent objections to similar claims (one on a different broccoli, another on a tomato) led the European Patent Office’s board of appeals to clarify that a new variety created by simply crossing plants and selecting their offspring—exactly the work of Myers and the Seminis broccoli breeders alike—was considered essentially biological and so not patentable.
The latest American ruling on the topic, in June 2013, established just the opposite. In the highly publicized case Association for Molecular Pathology v. Myriad Genetics, the US Supreme Court ruled that DNA itself was “a product of nature and not patent eligible.” But in delivering the opinion, Justice Clarence Thomas made the distinction that new plant breeds developed by conventional plant breeding were patent eligible. He cited the American Inventor’s Protection Act of 1999 as well as court precedent—namely, the opinion in the landmark 2001 case, which he also authored.
So while OSSI believes in the same basic principles as the European coalition—whose statement about the ethical implications of patents could have been written by Kloppenburg himself—the Americans’ fight is arguably much tougher. Its challenge is to amend patent law, which involves lobbying Congress against the powerful forces that are deeply invested in maintaining, if not strengthening, intellectual-property protections. Slow change, indeed.
Kloppenburg hopes that OSSI, with its new approach, can at least help speed things up. Listening to him and Goldman describe their new vision, it’s almost as if they have replaced seeds as software with a new metaphor—one inspired by plant breeding itself. Instead of building a protective barrier, OSSI would reach out into the world as widely as possible. Each time open-source seed was shared, the message on the packet would germinate in new minds: It would prod the uninformed to question why seeds would not be freely exchanged—why this pledge was even necessary. It would inspire those who already knew the issues of intellectual property to care more and spread the word. As the seed multiplied, so would the message. With three simple sentences, OSSI would propagate participants in the new movement like seedlings. They would breed resistance.
On April 17, the Open Source Seed Initiativeannounced itself to the public in a ceremony at the University of Wisconsin. The original plan was to rally on the steps of grand Bascom Hall, next to a bronze statue of Abraham Lincoln—“an appropriate witness to our emancipation of seed,” Kloppenburg said. Instead, the rally took place outside the less charismatic Microbial Sciences Building, beside a tree still bare in the young springtime. Unfazed, volunteers planted the dry lawn with dozens of short, white flags reading free the seed!!!, which shivered in a brisk breeze. Clad in winter jackets, about sixty people gathered to hear Kloppenburg, Goldman, and others talk about food sovereignty and the importance of genetic diversity. Then organizers handed out packets printed with the OSSI pledge. Each contained seed from one of thirty-six open-source varieties, ranging from barley to zucchini. They included two carrots bred by Goldman, one of which he named “Sovereign,” in honor of the occasion.
They also included a broccoli from Oregon whose history began in 1997, the same year as Tom Michaels’s epiphany about the future of plant breeding. That year, Jim Myers began breeding a plant he now calls “The O.P.,” which stands for “open-pollinated.” Until then, his broccoli were either hybrids or inbreds, created by a process of narrowing the genetics until one select mother is bred with one select father to create a single, most desirable combination of genes. The O.P., by contrast, is the result of a horticultural orgy. Myers began with twenty-three different broccoli hybrids and inbreds, including some of the lines behind the exserted-head trait. He let insects cross-pollinate them en masse, and the resulting plants were crossed at random again—and again, and again, four generations in a row. He then sent germplasm to farmers around the country, had them grow it in their fields, and send back the seed they collected. Over the winter, Myers bred it in another greenhouse orgy, then sent it back to farmers. For six years, he repeated this process.
The broccoli evolved in two ways simultaneously. The back-and-forth of the breeding scrambled the plants’ genetics, making the germplasm wildly diverse. It also let the environment whittle away at individual genes. For instance, plants without pest resistance produced less seed or simply died, reducing their presence in the gene pool. When it was hot, plants that could tolerate heat produced more seed, increasing their presence. Survival of the fittest.
In the seventh year, Myers sent most of the seed back to the farmers—just gave it to them, without licenses, royalties or restrictions. The idea was that each farmer would adapt that dynamic gene pool to his or her farm’s particular climate and conditions, selecting the best plants every year to refine the population. In other words, they could breed it themselves. In time, each would end up with his or her own perfect broccoli.
The beauty of the O.P. is that rather than challenge the intellectual-property system, it inherently rejects the concept of ownership. It contains many of the desirable genetics of Myers’s commercial broccoli lines, but in a package that is designed to be shared, not owned. Because it is open-pollinated, not a hybrid, its seeds can be saved by any farmer. And because it is genetically diverse, it would be difficult to pin down with a patent. Even if someone did claim to own it, because each new seedling is a little different, that claim would be all but impossible to enforce. In this case, the plant’s natural instinct to mate, multiply, change—to evolve—isn’t an impediment at all. Rather, it is a central reason why people would want to grow it in the first place.
One of the farmers who received seed from Myers was Jonathan Spero, who grows and breeds vegetables on his farm in southwest Oregon. After a decade of working with the O.P., he released his own variety, a sweet, purplish broccoli that sends out numerous side shoots after the main head is harvested. Spero named it Solstice because it produces earlier than most—if planted by mid-April, it will yield florets by the first day of summer. Some people also refer to it as Oregon Long Neck, because it has an exserted head. On April 17, in front of the Microbial Sciences Building at the University of Wisconsin, it gained another title of sorts: the world’s first open-source broccoli.
That day, as the last act in the ceremonial birth of OSSI, the audience turned over their crisp little packets of seed and recited the pledge on the back. What they held in their hands was no silver bullet. It wouldn’t keep Seminis from getting its broccoli patent application approved, much less rewrite the laws of intellectual property in favor of free exchange and genetic diversity. But still, as Kloppenburg and Goldman read those precious words in unison with the small crowd gathered in the cold before them, there was a new power to their voices. The seed wasn’t even in the ground yet, but already open source was taking root.
* Opposition was filed also by Syngenta, the Swiss biotech company and direct competitor to Monsanto. Their objection followed the same general logic as the coalition’s: that the broccoli under protection was created by an “essentially biological process.” It was ironic, then, that they had just applied for their own patents in the United States and the European Union, covering a broccoli plant distinguished in part by a “protruding” head that makes harvest easier.
Editor’s note: This article was produced with support from The UC Berkeley-11th Hour Food and Farming Journalism Fellowship program.