seed report

SEED GIANTS VS.

U.S. FARMERS

A REPORT BY THE CENTER FOR FOOD SAFETY & SAVE OUR SEEDS

2013

Publication Coordinator and Senior Writer/Editor: Debbie Barker, SOS Project Director

Senior Writers: Bill Freese, Science Policy Analyst & George Kimbrell, Senior Attorney

Contributing Researchers, Writers, and Editors: Sam Cohen, Hudson Kingston, Sharon Perrone,

Abigail Seiler, Cristina Stella, and Paige Tomaselli

Additional Copy Editing: Sharon Perrone and Abigail Seiler

Report Advisor: Andrew Kimbrell, CFS Founder and Executive Director

ACKNOWLEDGEMENTS

Seed Giants vs. U.S. Farmers is the result of a collaborative effort by the entire Center for Food

Safety (CFS) and Save Our Seeds (SOS) staff and many thanks go to all. We are especially grateful

to the numerous farmers, small-farm business owners, and attorneys who shared their stories and

provided much of the information and inspiration that made this report possible. Notably, this

report builds upon the work of a 2005 report of CFS, Monsanto vs. U.S. Farmers, whose primary

authors are Andrew Kimbrell, founder and executive director of CFS, and Joseph Mendelson,

then CFS legal director. Additional thanks goes to those who worked on this original report.

We are also grateful to the generous support of the V. Kann Rasmussen Foundation and Ceres

Trust for their generous support of this publication and other project initiatives.

* * *

CENTER FOR FOOD SAFETY (CFS)

The Center for Food Safety (CFS) is a national non-profit organization working to protect

human health and the environment by challenging the use of harmful food production tech-

nologies and by promoting organic and other forms of sustainable agriculture. CFS uses

groundbreaking legal and policy initiatives, market pressure and grassroots campaigns to protect

our food, our farms, and our environment. CFS is the leading organization fighting genetically

engineered (GE) crops in the U.S., and our successful legal challenges and campaigns have halted

or curbed numerous GE crops.CFS’s U.S. Supreme Court successes include playing an historic

role in the landmark U.S. Supreme Court Massachusetts v. EPA decision mandating that the EPA

regulate greenhouse gases. In addition, in 2010 CFS challenged Monsanto in the U.S. Supreme

Court (Monsanto Co. v. Geertson Seed Farms), which set key legal precedents. CFS has offices in

Washington, DC, San Francisco, CA, and Portland, OR.

SAVE OUR SEEDS (SOS)

The Save Our Seeds (SOS) initiative is an extension of CFS’s already successful legacy of pro-

tecting seed for future generations. Our two-fold aim is to undertake legal and policy strategies

on both domestic and international levels to halt the rapid increase of seed commercialization

and concentration; and to “shift the consciousness” by advancing the principle that seeds are a

public good and should be part of the public domain.

Foreword . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Executive Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

A P T E R

Seeding Control: Corporate Takeover of Seeds . . . . . . . . . . . . . . . . . . 12

Brief History of Seed in the U.S. . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Farmer-Breeders

Public Sector

Private Sector

Brave New World: Entering a New Intellectual Property Paradigm . . . . . . . . . 13

The Plant Patent Act

The Plant Variety Protection Act (PVPA)

Unprecedented Legal Decisions Impacting Plant Patents . . . . . . . . . . . . . . 15

The Role of Genetically Engineered (GE) Seeds . . . . . . . . . . . . . . . . . . 16

A Novel Invention?

Beyond Legal Limits: Broader Implications of Present Seed Patent Regime . . . . . 16

Seed Industry Concentration

Increased Seed Prices

Reduced Seed Options & Innovation

Restricting Independent Scientific Research

Loss of Plant Diversity

Super Weeds, Super Problem

H A P T E R TWO

Technology Use Agreements: Farmers as Serfs . . . . . . . . . . . . . . . . . . 22

Expansive Scope of Technology Agreements . . . . . . . . . . . . . . . . . . . . . 23

Coming to a Farm Near You: Technology Agreements for Non-GE Seeds

Comprehensive Bans on Seed Saving

Acknowledgment of Foreseeable Transgenic Contamination

This Land is Not Your Land

Extreme Damages, Bankruptcy, and Controlled Judicial Review

State Farmer Protection Acts

TABLE OF CONTENTS

CH A P T E R TH R E E

Dragnet: Pursuing and Prosecuting American Farmers . . . . . . . . . . . . . . 27

Seed Cleaners Also Under Threat . . . . . . . . . . . . . . . . . . . . . . . . . . 29

Prosecuting America’s Farmers . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

Out-of-Court Settlements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

Following the Leader: Litigation by Other Seed Giants . . . . . . . . . . . . . . . . 31

Bowman v. Monsanto Co.

Organic Seed Growers & Trade Ass’n v. Monsanto Co.

Association for Molecular Pathology v. Myriad Genetics, Inc.

H A P T E R FO U R

Policy Options: Reforming the Current Seed and Plant

Patent Regime . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

Amend the Patent Act So That Sexually Reproducing Plants Are Not

Patentable Subject Matter and Amend the Plant Variety Protection Act

(PVPA) to Exclude Such Plants from Protection Under the PVPA . . . . . . . . . 36

Authorize the Plant Variety Protection Act (PVPA) as the Exclusive Means of

Securing Intellectual Property Protection Over Sexually Reproducing Plants . . . . 37

Amend the Patent Act, and/or Have a Court Decide: 1) Patent Rights Exhaust

After the First Authorized Sale; and 2) Farmers Cannot be Sued for Naturally

Reproducing Seeds From a Patented Variety . . . . . . . . . . . . . . . . . . . . . 37

Amend the Patent Act So That Seed Saving and/or Inadvertent Possession,

Use, or Sale of Seeds is Not Considered Infringement . . . . . . . . . . . . . . . . 38

Legislate to Prevent Seed Giants from Shifting Liability Onto the Farmer . . . . . . 39

Adopt Existing State Models for Controlling Intrusive and Aggressive

Patent Infringement Investigations of Farmers . . . . . . . . . . . . . . . . . . . . 39

Level the Courtroom Playing Field By Negating Seed Industry Forum

Selection Clause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

Pass Federal, State, and Local Initiatives Instituting a Ban or Moratorium on

the Growing of Genetically Engineered Crops . . . . . . . . . . . . . . . . . . . . 41

Endnotes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

T A B L E O F C O N T E N T S

T H I S I S T H E I N I T I A L V E R S I O N O F T H E R E P O R T .

n 2003, CFS launched an investigation to

determine the extent to which American

farmers are impacted by litigation arising from

the use of patented, genetically engineered

(“GE” or “transgenic”) crops. This investigation

culminated in a 2005 report, a comprehensive

assessment of Monsanto Company’s use of U.S.

patent law to control the use of staple crop seeds

by farmers. The groundbreaking report, Monsanto

vs. U.S. Farmers, details the results of this research,

discusses the ramifications for the future of U.S.

farming, and provides policy recommendations for

improvement.

At that time, we documented that recorded judg-

ments granted to Monsanto amounted to over 15

million dollars.

Applying its significant financial

and legal resources, Monsanto has also forced farm-

ers to pay an estimated hundreds of millions more

through confidential out-of-court settlements. We

have regularly documented this pernicious practice

to the present day. By the end of 2012, Monsanto

had received over $23.5 million from patent

infringement lawsuits against farmers and farm

businesses.

As this new report discusses, farmers continue to

be persecuted for issues pertaining to seed patents.

Intensifying this assault, other agrichemical corpo-

rations are poised to join Monsanto in their

prosecution of U.S. farmers. Seed Giants vs. U.S.

Farmers records the current relationship between

farmers and the “seed giants,” the world’s largest

agrichemical companies, which today have created

a seed oligarchy. It also explains the history of seeds

in the U.S. and summarizes how patent and intel-

lectual property (IP) decisions and policies impact

broader socio-economic and environmental issues.

Our newest report is timely because the U.S.

Supreme Court is poised to hear legal argument in

Bowman v. Monsanto this year (2013). The case

concerns Monsanto’s prosecution of 75-year-old

Indiana farmer Vernon Hugh Bowman. The com-

pany alleges that Mr. Bowman infringed upon its

seed patents by purchasing and planting undiffer-

entiated seeds from a grain elevator. Mr. Bowman’s

case, one of hundreds discovered in our investiga-

tions, is a microcosm of the problem of farmer

prosecution that the current system created and

fosters. The Supreme Court’s upcoming decision

will greatly impact the future relationship between

farmers and the agrichemical companies, and, in

turn, have wide-ranging ramifications for inde-

pendent scientific research, the sustainability of

American agriculture, and the food we eat.

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FOREWORD

urrent U.S. seed laws and policy have

veered far from President George Wash-

ington’s vision of seeds and farming for

this country. Seed and plant patent and

intellectual property (IP) schemes not only ensure

that a farmer is “obliged to buy his Seeds,” but also

cause hardship through loss of autonomy, harass-

ment, and litigation for farmers throughout the

U.S. and across the globe.

In the last few decades, the U.S. has led a radical

shift toward commercialization, consolidation, and

control of seed ownership. Three agrichemical

firms—Monsanto, DuPont, and Syngenta—now

control 53 percent of the global commercial seed

market.

The top ten seed firms, with a majority

stake owned by U.S. corporations, account for 73

percent.

This shift has fundamentally changed

farming in the U.S. Instead of continuing the his-

torical tradition of farmers having full access to

seeds that they have cultivated over centuries, agri-

chemical corporations now own the sine qua non

of farming—indeed, the irreplaceable element of

all food—seeds.

This report recounts the history of seed and plant

breeding and intellectual property policies in the U.S.

and outlines how the current intellectual property

regime has resulted in seed industry consolidation,

rising seed prices, loss of germplasm diversity, and

the strangling of scientific inquiry. It then docu-

ments lawsuits and threats of lawsuits by the largest

agrichemical companies in the world against U.S.

farmers for alleged infringement of seed patents.

Finally, the report provides policy options that can

help protect farmers and food resources as well as

generate seed innovation and research through fair

access to seeds and other resources.

EXECUTIVE SUMMARY

It is miserable for a farmer to be obliged to buy his Seeds; to exchange Seeds may,

in some cases, be useful; but to buy them after the first year is disreputable.

—G E O R G E WA S H I N G TO N

BRIEF HISTORY OF SEED IN THE U.S.

Humans have improved plants since the dawn of

agriculture. The crops grown today are the culmi-

nation of this long tradition of plant breeding.

Farmers, public sector breeders, and private seed

firms have all made important contributions.

FARMER-BREEDERS

Since the founding of the United States, farmers—

including Native American agriculturalists—have

played a critical role in developing crop varieties that

form the basis of modern agriculture. Their efforts

produced a rich diversity of crop varieties adapted

to different regions, soil types, climates, local pests,

plant diseases, and cultures. Farmers have con-

tributed to this steady genetic improvement of

crops through the simple but effective process of

mass or phenotypic selection in which seeds from

the healthiest and most productive plants are saved

and replanted the following season. Some farmers

continue to practice phenotypic selection today.

America’s early leaders understood that strength-

ening agriculture was essential to the nation’s

economic development. Farmers played a crucial

role in this process, aided by the U.S. Patent

Office.

Commissioner of Patents Henry Ellsworth

regarded the provision of novel plant varieties to

be as much the business of the Patent Office as

encouraging mechanical inventions. Beginning in

1839, Ellsworth obtained congressional funding to

coordinate the collection of new crop varieties

from around the world and distributed seeds to

American farmers. Farmers tested these new seeds,

conducted extensive breeding with them, and

thereby laid the genetic foundations for American

agriculture. Some of the more famous farmer-bred

varieties include Red Fyfe wheat, Grimm alfalfa,

and Rough Purple Chili potato.

The U.S. Department of Agriculture (USDA),

founded in 1862, continued this program of germ -

plasm distribution and farmer-led breeding into the

early 20

century. By the turn of the 19

century,

USDA had distributed over one billion packages

of seeds to farmers across the country.

PUBLIC SECTOR

USDA, land-grant universities, state experiment

stations, and other publicly funded institutions con-

ducted more systematic testing and breeding of

new crop varieties in the 20

century. Publicly

funded scientists revolutionized breeding with

backcrossing, a process whereby a valuable trait

(e.g., disease resistance) of a plant variety not suit-

able for food production is introduced into a

commonly used variety to improve it.

Public sector scientists also developed the process

of hybridization, including the first high-yielding

hybrid corn varieties.

Most major new crop vari-

eties developed throughout the 20

century owe

their origin to publicly funded agricultural research

and breeding. In 1980, the share of overall U.S.

crop acreage planted with public sector seed was

70 percent for soybeans and 72-85 percent for var-

ious types of wheat.

The substantial yield increases

in corn, cotton, and soybeans since 1930 evince the

“unambiguous hegemony of public science in the

field of plant breeding”

in the 20

century.

PRIVATE SECTOR

Until recently, the private sector’s chief role in the

seed industry was to multiply and sell regionally

adapted varieties developed in the public domain.

This was done primarily by numerous, often

family-owned seed firms scattered across the coun-

try.

Only in those few field crops that had been

successfully hybridized (corn, sorghum, and sun-

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For centuries farmers and plant breeders

fostered a diverse array of germplasm by selecting

for locally adapted varieties to thrive in diverse

soils, geographies, and climates.

flower) did the private sector play a more active

breeding role.

One major attraction of hybrid seed to private

firms was that it does not breed true and thus must

be purchased anew each year. Pioneer and other

corn seed firms adopted hybridization techniques

developed by public sector breeders and became

dominant in hybrid corn beginning in the 1930s.

The nascent seed industry realized the commercial

implications of hybrid seeds. Thus, it began to

advocate for the elimination of federal seed pro-

grams, viewed to be a barrier to potential private

profit, and promoted policies to allow seed and

plant patenting.

BRAVE NEW WORLD:

ENTERING A NEW INTELLECTUAL

PROPERTY PARADIGM

The vast majority of plant improvement in Amer-

ican history has been accomplished by farmers and

public sector plant breeders, and these tremendous

advances were made without any system of

“innovation-promoting” intellectual property pro-

tection for plants. For the first two centuries of this

country’s history, Congress consistently refused to

authorize patents on staple food crops. However,

under increasing pressure and marketing from agri-

chemical companies, seed patent and IP law and

policies have enshrined corporate interests instead

of safeguarding farmers and small, independent

businesses.

THE PLANT PATENT ACT

Seed firms began pressing for a plant patent system

as long ago as 1885.

In 1930, Congress responded

with the Plant Patent Act of 1930 (PPA), which

established a patent system for asexually propagated

plants (e.g., ornamentals, fruit and nut trees, and other

plants reproduced via budding, cutting and graft-

ing).

However, the real significance of Congress’

passage of the PPA was what it excluded. The great

majority of food-producing plants—e.g., wheat,

corn, rice, oats, soybeans, most vegetables, and many

others—are reproduced sexually (via seeds). Congress,

backed by farmers and the USDA, refused to permit

patents on these staple food crops. This reflected

the common-sense conviction that private sector

entities should not be entrusted with monopoly

control over the very source of our food supply.

THE PLANT VARIETY

PROTECTION ACT (PVPA)

In 1970, Congress passed the Plant Variety Protec-

tion Act (PVPA). This Act empowered USDA to

grant Certificates of Protection for novel sexually

reproducing plant varieties grown from seed.

The

Certificates conferred exclusive marketing rights

to the breeder for an 18-year term (subsequently

amended to 20 years). However, the Certificates

established two critical exemptions: 1) farmers

must be allowed to save seeds for replanting; and

2) patented varieties must be made available to

researchers.

With these exemptions, Congress

explicitly recognized that farmers and public-inter-

est breeders were vital partners in the continuing

improvement of plant varieties and enshrined in

law the millennia-old right of farmers to save

seeds.

LEGAL DECISIONS IMPACTING

PLANT PATENTS

The critical paradigm shift came in Diamond v.

Chakrabarty, the 1980 landmark 5-4 Supreme

Court decision that held for the first time that living

organisms—in this case, a genetically engineered

bacterium—could be patented.

According to the

Court’s majority, because the patentee had intro-

E X E C U T I V E S U M M A R Y

Agrichemical companies devote significant

esources toward investigating and prosecuting

farmers for alleged seed patent violations.

duced new genetic material within the bacterium

cell, he had produced something that was not a

product of nature and was thus patentable subject

matter. The Chakrabarty decision that living organ-

isms should be patented is far from universally

accepted.

Nonetheless, the decision paved the way for the

U.S. Patent and Trademark Office (USPTO) to

decide in the 1985 case Ex parte Hibberd that sex-

ually reproducing plants are patent able under the

Patent Act. This allowed corporations to obtain util-

ity patents, effectively a policy tool allowing control

over plants as “inventions.” Utility patents (unlike

PVPA certificates) allow the corporate patent

holders to deny farmers the right to save and re-

plant seed and exclude others from using any

patented variety for research.

Affirming the

USPTO’s practice, in 2001, the 5-4 Supreme

Court decision in J.E.M Ag Supply v. Pioneer Hi-

Bred International upheld the granting of utility

patents for plants.

These judicial decisions greatly expanded the

scope of intellectual property rights for seeds and

plants. Corporations stampeded the USPTO with

over 1,800 patent submissions for genetic material

of seeds and plants.

While firms raced to patent

genetic resources and plant breeding techniques,

they also rapidly acquired existing seed companies.

The agricultural biotechnology industry emerged

through the rapid acquisition of existing seed firms

by chemical and pesticide companies such as Mon-

santo, DuPont, Syngenta, and Dow.

Dozens of

mergers and acquisitions ensued; at least 200 inde-

pendent seed companies were bought out and

consolidated from 1996-2009.

As a consequence, what was once a freely exchanged,

renewable resource is now privatized and monop-

olized. Current judicial interpretations have

allowed utility patents on products of nature, plants,

and seeds, without exceptions for research and seed

saving. This revolutionary change is contrary to

centuries of traditional seed breeding based on col-

lective community knowledge and established in

the public domain and for the public good.

THE ROLE OF GENETICALLY

ENGINEERED (GE) SEEDS

The introduction of GE, or transgenic, crops has

fundamentally altered farming for thousands of

American farmers. Biotechnology firms claim

comprehensive rights to GE plants by virtue of

inserting single genes. The advent of genetic engi-

neering has expedited claims for seed patents and

has subsequently become a gateway to controlling

seed germplasm. This shift toward market domina-

tion of GE seeds is a primary basis for the plethora

of investigations and lawsuits targeting farmers.

The vast majority of the four major commodity

crops in the U.S. are now genetically engineered.

U.S. adoption of transgenic commodity crops has

been rapid, in which GE varieties now make up

the substantial majority: soybean (93 percent trans-

genic in 2010), cotton (88 percent), corn (86

percent), and canola (64 percent).

The two major types of GE crops are: 1) herbicide-

resistant crops that enable application of one or

more herbicides to kill weeds without harming the

crop; and 2) insect-resistant, Bt crops that produce

toxins in their tissues that kill certain pests that try

to feed on them.

DRAGNET: PURSUING AND

PROSECUTING AMERICA’S FARMERS

Agrichemical companies devote significant resources

toward investigating and prosecuting farmers for

alleged seed patent violations. Their investigations

and lawsuits reflect a David versus Goliath sce-

nario. Agrichemical companies earn billions of

dollars each year, and farmers cannot possibly com-

| 5

pete against such resources. Most farmers simply

cannot afford legal representation against these

multi-billion dollar companies and often are forced

to accept confidential out-of-court settlements.

At present, Monsanto continues to dominate seed

biotechnology, accounting for nearly 27 percent of

global commercial seed sales in the world.

It also

has astonishing control over seed germplasm via

acquisition of a multitude of patents on both GE

techniques and GE seed varieties.

Due to its

dominating market position, Monsanto has led the

industry in lawsuits against farmers and other agri-

cultural stakeholders. As early as 2003, Monsanto

had a department of 75 employees with a budget

of $10 million for the sole purpose of pursuing

farmers for patent infringement.

As of December 2012, Monsanto had filed 142

alleged seed patent infringement lawsuits involving

410 farmers and 56 small farm businesses in 27

states,

which recently led one judge to brand the

company “incredibly litigious.”

Sums awarded to

Monsanto in 72 recorded judgments total

$23,675,820.99.

While Monsanto plainly leads the pack in pursuing

litigation, as its patents expire, other agrichemical

companies are now more aggressively enforcing their

seed patents. DuPont, the world’s second largest

seed company, hired at least 45 farm investigators

in 2012 to examine planting and purchasing records

of Canadian farmers and to take samples from their

fields to send to DuPont for genetic analysis.

DuPont is expanding this operation to the U.S. in

2013 and hiring approximately 35 investigators,

many former police officers.

TECHNOLOGY AGREEMENTS:

TOOLS OF PROSECUTION

Instead of saving seed for replanting, farmers are

now constrained to purchasing a combination

“cropping system” comprised of high cost GE seed

and the herbicide to which the seed is resistant. Yet

purchasing seed comes at a cost higher than just

the price of seed. Upon purchase, farmers are

required to sign lengthy contracts known as “tech-

nology use agreements.” The contracts prohibit

farmers from saving seeds and, among many other

intrusive provisions, allow companies to access the

farmers’ records held by third parties, such as the

U.S. government.

In addition to these contracts, the patent holders’

strategy to prevent seed saving consists of three stages:

investigations; coerced settlements; and, if that fails,

litigation. This report discusses intrusive aspects of

these contracts and how they are used to litigate

against farmers and others in farming communities.

The story of Moe Parr, a seed cleaner in Indiana,

illustrates the tactics and scope of the agrichemical

industry. Seed saving requires the services of seed

cleaners, who use specialized equipment to remove

chaff and weed seed from harvested seed to prepare

it for planting and prevent the seeding of weeds

along with the crop. Monsanto sued Mr. Parr for

“aiding and abetting” seed saving farmers by clean-

ing seeds from harvests so that farmers could save

and replant. Mr. Parr did not know if the seeds he

cleaned were patented or not because seed cleaners

do not perform genetic tests on a customer’s seeds.

The protracted legal battle caused Mr. Parr to sub-

mit to strict settlement provisions proposed by

Monsanto because he could no longer afford legal

representation. According to Mr. Parr, he lost almost

95 percent of his former customers, who are afraid

that association with him will lead to prosecution

against them as well.

E X E C U T I V E S U M M A R Y

Most major new crop varieties developed throughout

the 20th century owe their origin to publicly funded

agricultural research and breeding.

This report also includes other stories of harass-

ment and intimidation by seed companies. David

Runyon, an Indiana corn and soybean farmer was

accused of using Monsanto’s patented Roundup

Ready seeds, even though he purchased non-

patented soybean seed from local universities.

Monsanto eventually dropped its inquiry, but the

protracted investigation required considerable

financial resources of Mr. Runyon.

GUILTY BY GE CONTAMINATION

Transgenic crop seed can contaminate non-GE

crops in numerous ways: via birds, animals, or wind

(for light seed), flooding, farm or seed cleaning

machinery, spillage during transport, and a variety

of human errors that may occur at each stage of the

crop production process. Such pollen flow and seed

movement presents a direct economic threat to

farmers growing conventional crops or organic

products. If organic crops or conventional crops are

tainted with GE germplasm, farmers can lose their

certification, their customers and markets, and their

reputation.

Seed industry technology contracts state that seed

movement is “well known and is a normal occur-

rence,”

and thus, they are not liable for potential

crop contamination. Furthermore, because U.S.

patent law does not require a showing of intent to

support a finding of infringement, farmers can be

sued if their fields are unknowingly contaminated.

For example, seed giants have investigated and sued

farmers whose fields were contaminated by pollen

or seed potentially from a neighboring GE crop or

when a previous year’s GE crop sprouted, or “vol-

unteered,” in fields planted with conventional

varieties the following year. Our investigation

shows that the industry also sues farmers even

when they were never presented with, and hence

never signed, a technology use agreement at the

time of seed purchase.

The substantial risk of likely transgenic contamination

and subsequent prosecution for patent infringement

forced hundreds of family farmers and sustainable

farm organizations, including Center for Food

Safety, to file a lawsuit challenging Monsanto’s

patents and asking the court to disallow agrichem-

ical companies from suing or demanding royalties

from farmers when unintentional contamination

occurs. This case, Organic Seed Growers & Trade Ass’n

v. Monsanto Co., is detailed in this report.

COMING TO A FARM NEAR YOU:

EXTENDING CONTROL TO NON-GE

SEEDS

For many years, the majority of lawsuits against

farmers were related to GE seeds. However, agri-

chemical companies are now extending their

technology agreements to cover non-GE seeds.

For example, Seminis tomato seed packets notify

the purchaser that upon opening the seed packet,

they are engaging into a contract with the com-

pany and cannot save and replant seeds or use them

for any kind of research.

HIGH PROFILE LAWSUITS

Agrichemical companies have pursued hundreds

of legal challenges against U.S. farmers for pur-

ported seed patent infringement violations. As

discussed in the report, several current cases are

poised to alter the future legal landscape.

BOWMAN V. MONSANTO CO.

In February 2013, the U.S. Supreme Court will

review a federal appeals court decision that Vernon

Hugh Bowman, a 75-year-old farmer, infringed

Monsanto’s patents when he replanted soybean

| 7

Promoting homogenous seed stocks via seed

patenting and industrial agriculture has resulted

in a dramatic loss of plant diversity.

seeds purchased from a grain elevator. Mr. Bow-

man’s case centers on a doctrine known as “patent

exhaustion,” which holds that after an authorized

sale of a patented item, a patentee’s right to control

the further use or resale of that item is “exhausted.”

This leaves the buyer free to use the patented item

without restriction, limiting a patent holder’s abil-

ity to hold a monopoly and receive royalty

payments in perpetuity.

ASSOCIATION FOR MOLECULAR

PATHOLOGY V. MYRIAD GENETICS, INC.

In 2013, the Supreme Court will also hear Associ-

ation for Molecular Pathology v. Myriad Genetics, Inc.,

a case about patents on human genes used for

breast cancer research. The question presented by

the Supreme Court as to why they granted certio-

rari (i.e., took the case) is quite broad: “Are human

genes patentable?” The defendant company

removed the genes and their DNA sequences from

the body (or “isolated” them), and then patented

them for lucrative testing purposes. While framed

in the context of human genes, the Court’s decision

will likely impact the ability of corporations to

patent genes more broadly, including germplasm.

ORGANIC SEED GROWERS & TRADE

ASS’N V. MONSANTO CO.

Finally, Organic Seed Growers & Trade Ass’n v. Mon-

santo Co. is about patent infringement based on

unintentional transgenic contamination. A decision

from the U.S. Court of Appeals for the Federal Cir-

cuit in that case is expected in spring 2013.

CFS is a plaintiff in the third case and filed separate

legal briefs in support of the petitioners in the

above two cases.

BEYOND LEGAL LIMITS: BROADER

IMPLICATIONS OF PRESENT SEED

PATENT POLICIES

The harms of the current IP paradigm do not end

with farmer prosecution and the loss of the right

to save seed. Seed Giants vs. U.S. Farmers examines

issues that are rarely discussed such as how seed

patent policies reduce seed diversity, impair agri-

cultural scientific research and innovation, and

contribute to environmental harms, among other

things.

SEED INDUSTRY CONCENTRATION

The advent of utility patent protection for plants

is one of several factors

that triggered a massive

wave of mergers and acquisitions in the 1980s that

continues to the present day.

Large agrichemical firms such as Monsanto,

DuPont, Syngenta, Dow, and Bayer have acquired

scores of seed companies, including many of the

largest firms with the highest-quality germplasm.

As of 2009, these five companies accounted for 58

percent of the world’s commercial seed sales.

With this concentration has come increasing market

power to raise seed prices and reduce availability

of more affordable seed. Consolidation has also

made it harder for smaller firms to survive and even

more difficult for new seed firms to get a start

because so much of the world’s most desirable

germplasm is patented by the seed giants. As cor-

porations continue to accumulate patents for a vast

amount of germplasm, their control over seeds writ

large is expanding.

INCREASED SEED PRICES

Seed prices have risen dramatically in those crops

in which patented GE varieties are now predom-

inant, such as corn, soybeans, and cotton. USDA

data show that since the introduction of GE seed,

the average cost of soybean seed to plant one acre

E X E C U T I V E S U M M A R Y

has risen by a dramatic 325 percent, from $13.32

to $56.58. Similar trends exist for corn and cotton

seeds: cotton seeds spiked 516 percent from 1995-

2011 and corn seed costs rose 259 percent over the

same period.

REDUCED SEED OPTIONS

AND INNOVATION

Corporate strategies to promote transgenic crops

further reduce innovation and variety of seeds. In

the era of GE seed domination in commodity

crops, it is becoming increasingly difficult for farm-

ers to purchase conventional, non-GE seeds. This

leaves many farmers with little choice but to jump

on the transgenic bandwagon and purchase expen-

sive GE seed, whether they want to or not.

USDA economists have found that seed industry

consolidation has reduced research and likely

resulted in fewer crop varieties on offer:

Those companies that survived seed industry

consolidation appear to be sponsoring less

research relative to the size of their individual

markets than when more companies were

involved. … Also, fewer companies developing

crops and marketing seeds may translate into

fewer varieties offered.

Patents also strangle independent research. A letter

to the Environmental Protection Agency (EPA)

from prominent university scientists expressed their

alarm at restrictions on scientific seed research due

to both utility seed patents and industry technol-

ogy agreements. As one scientist warned, “If a

company can control the research that appears in

the public domain, they can reduce the potential

negatives that can come out of any research.”

ENVIRONMENTAL CONCERNS

It is beyond the scope of this report to detail the

numerous environmental impacts that result from

current patent and IP policies; however, the seed

monoculture paradigm has created significant harms,

such as an overall loss of seed and plant diversity

and a dramatic increase in chemical use, to name

only a few.

LOSS OF SEED DIVERSITY When the seed

industry pushed an amendment to the Plant Patent

Act in 1968 to extend patents to include sexually

reproduced plants, USDA opposed granting such

patents, arguing that they would threaten develop-

ment and introduction of new seed varieties.

USDA’s concern was prescient of the grave loss of

crop diversity that exists today. Promoting homog-

enous seed stocks via seed patenting and industrial

agriculture has resulted in a dramatic loss of plant

diversity. As seed consolidation has increased, seed

variety has decreased.

Seed and plant varieties have diminished as small,

local seed breeders have been replaced by large

corporations that operate on a monoculture model.

To illustrate, the U.S. has lost 6,000 of 7,000 apple

varieties that used to be grown across the nation.

Farmers in Washington now grow the same few

apple varieties as farmers in California.

SUPER WEEDS, SUPER PROBLEM Agrono-

mists around the globe are alarmed by the growing

epidemic of weeds that have evolved resistance to

glyphosate, the primary herbicide sprayed on GE

crops. Farm Industry News, January 2013, reported

that the area of U.S. cropland infested with

glyphosate-resistant weeds has expanded to 61.2

million acres in 2012. Nearly half of all U.S. farm-

ers interviewed reported that glyphosate-resistant

weeds were present on their farm in 2012, up from

| 9

Corporations did not create seeds, and many

challenge the trending legal and policy system that

allows private companies to assert ownership

over a resource that is vital to survival.

34 percent of farmers in 2011. The publication

reported that the spread of glyphosate-resistant

weeds is gaining momentum, increasing 25 percent

in 2011 and 51 percent in 2012.

In response, farmers resort to more soil-eroding

tillage operations to combat these weeds and also

turn to increasingly toxic chemical cocktails. As a

result, pesticide usage has significantly increased in

the U.S. since the adoption of GE crops. Based on

USDA data, upward of 26 percent more pesticides

per acre were used on GE crops than on non-GE,

conventional crops in 2008.

Agrichemical companies’ response is to seek com-

mercial approval of a more toxic brew of chemicals

to douse on crops. Dow AgroSciences is seeking

USDA approval of corn and soybeans resistant to

2,4-D, an active ingredient in Agent Orange, which

is often contaminated with carcinogenic dioxins.

Likewise, Monsanto is planning to seek approval

for transgenic, dicamba-resistant soybeans, corn,

and cotton. Dicamba has been linked to increased

rates of colon

and lung cancer

in farmers.

THE WAY FORWARD:

POLICY AND LEGAL REFORMS

As this report explains, there is an urgent need to

reassess current policies. Instead of allowing a

handful of corporations to control and own seeds,

this report advocates several solutions. First, seeds

should be understood to be part of the public

domain and be protected in the public trust in

order to ensure access to this vital resource. Seeds

are products of nature. All proprietary activity

should begin from this fundamental starting point.

Thus, one central reform at the national level is to

amend the Patent Act to exclude such sexually

reproducing plants (reproduced via seed) from

being patented. Instead, plant protection measures

are already available as codified in the Plant Variety

Protection Act (PVPA). Under the PVPA, Certifi-

cates of Protection are awarded to new plant

varieties. These Certificates strike a careful balance

between conferring exclusive marketing rights to

the breeder while also maintaining the rights of

farmers to save seed and of researchers to continue

to innovate and improve varieties. Finally, the

report includes recommendations for state and

local actions, such as passing state and local legisla-

tion for controlling or limiting the intrusive and

aggressive alleged patent infringement investiga-

tions of farmers and farm businesses.

* * *

10 |

E X E C U T I V E S U M M A R Y

Food availability and accessibility begin with

equitable and fair access to land and vital natural

resources, including seeds.

FEEDING THE WORLD

any assert that present-day seed

patenting policies are needed in order

to feed the planet. However, as Nobel

laureate Amartya Sen has shown,

hunger is fundamentally a problem of poverty, food

distribution, and inequity. The United Nations

General Comment on the Right to Food concurs:

“The roots of the problem of hunger and malnu-

trition are not lack of food but lack of access to

available food.”

Even though we currently grow enough food to

feed the world, more than one billion people go

hungry. Another two billion suffer health problems,

including malnutrition, from being overfed with

unhealthy food. For example, today, the number

of children suffering from obesity almost outnum-

bers those children suffering from hunger.

Food availability and accessibility begin with equi-

table and fair access to land and vital natural

resources, including seeds. Instead of devising an

agricultural system that makes societies dependent

on expensive seeds and chemicals, numerous studies

demonstrate that agro ecological farming methods

—in which farmers save, breed, and plant seeds

without the use of synthetic chemicals—provide

stable and abundant food.

SEEDS AS THE COMMONS:

THE MORAL IMPERATIVE

The moral imperative when determining appro-

priate seed policies is little discussed in today’s

banter. But this is a much needed critical and civil

discussion. Seeds are a product of nature. Corpo-

rations did not create seeds, and many challenge

the trending legal and policy system that allows

private companies to assert ownership over a

resource that is vital to survival.

Throughout history and in most regions of the

world today, seeds have been part of the “commons”

—the common heritage of mankind that was part

of the public domain for all to access. Farmers have

been breeding, saving and re-planting, and freely

exchanging seeds for millennia. As a result, a rich

diversity of seed varieties and crops have been

developed to adapt to global geographies, environ-

mental conditions, weather patterns, local pests and

plant diseases, and also to serve social and economic

trends of regions and cultures. Such diversity is vital

especially in times of climate chaos associated with

global warming; societies require a full arsenal of

diversity to adequately respond.

| 11

n the last few decades, the U.S. has led a rad-

ical shift to commercialization, consolidation,

and control of seed ownership. Three agri-

chemical firms—Monsanto, DuPont, and

Syngenta—now control 53 percent of the global

commercial seed market.

The top ten seed firms,

with a majority stake owned by U.S. corporations,

account for 73 percent.

This shift has fundamen-

tally changed farming in the U.S. Instead of

continuing the historical tradition of farmers hav-

ing full access to seeds that they have cultivated

over centuries, agrichemical corporations now

own the sine qua non of farming—indeed, the irre-

placeable element of all food—seeds.

BRIEF HISTORY OF SEED IN THE U.S.

Humans have improved plants since the dawn of

agriculture. The crops grown today are the culmi-

nation of this long tradition of plant breeding.

Farmers, public sector breeders, and private seed

firms have all made important contributions.

FARMER-BREEDERS Since the founding of

the United States, farmers—including Native

American agriculturalists—have played a critical

role in developing crop varieties that form the basis

of modern agriculture. Their efforts produced a

rich diversity of crop varieties adapted to different

regions, soil types, climates, local pests and plant

diseases, and cultures.

Farmers have contributed to this steady genetic

improvement of crops through the simple but effec-

tive process of mass or phenotypic selection, in which

seeds from the healthiest and most productive

plants are saved and replanted the following season,

a practice continued by some farmers today.

12 |

H A P T E R O N E

SEEDING CONTROL:

CORPORATE TAKEOVER OF SEEDS

America’s early leaders understood that strength-

ening agriculture was absolutely essential to the

nation’s economic development. Farmers played a

crucial role in this process, aided by the U.S. Patent

Office.

Commissioner of Patents Henry Ellsworth

regarded the provision of novel plant varieties to

be as much the business of the Patent Office as

encouraging mechanical inventions.

Beginning in 1839, Ellsworth obtained congres-

sional funding to coordinate the collection of new

crop varieties from around the world and the dis-

tribution of seeds to American farmers. Farmers

tested these new seeds, conducted extensive breed-

ing with them, and thereby laid the genetic

foundations for American agriculture. Among the

more famous farmer-bred varieties are Red Fyfe

wheat, Grimm alfalfa, and Rough Purple Chili

potato. The U.S. Department of Agriculture

(USDA), founded in 1862, continued this program

of germplasm distribution and farmer-led breeding

into the early 20

century. By the turn of the 19

century USDA had distributed over one billion

packages of seeds to farmers across the country.

PUBLIC SECTOR The USDA, land-grant univer-

sities, state experiment stations and other publicly

funded institutions conducted more systematic

testing and breeding of new crop varieties in the

century. Publicly funded scientists revolution-

ized breeding with backcrossing, a process whereby

a valuable trait (e.g., disease resistance) of a plant

variety not suitable for food production is intro-

duced into a commonly used variety to improve

it. Public sector scientists also developed the

process of hybridization, including the first high

yielding hybrid corn varieties.

Most major new crop varieties developed through-

out the 20th century owe their origin to publicly

funded agricultural research and breeding. In 1980,

the share of overall U.S. crop acreage planted with

public sector seed was 70 percent for soybeans, and

72-85 percent for various types of wheat.

The

substantial yield increases in corn, cotton, and soy-

beans since 1930 evince the “unambiguous

hegemony of public science in the field of plant

breeding”

in the 20th century.

PRIVATE SECTOR Until recently, the private

sector’s chief role in the seed industry was to mul-

tiply and sell regionally adapted varieties developed

in the public domain. This was done primarily by

numerous, often family-owned seed firms scattered

across the country.

Only in those few field crops that

had been successfully hybridized (corn, sorghum,

and sunflower) did the private sector play a more

active breeding role.

One major attraction of hybrid seed to private

firms was that it does not breed true and thus must

be purchased anew each year, offering more profit

potential than true-breeding crops such as wheat

and soybeans. Pioneer and other corn seed firms

adopted hybridization techniques developed by

public sector breeders and became dominant in

hybrid corn beginning in the 1930s.

BRAVE NEW WORLD:

ENTERING A NEW INTELLECTUAL

PROPERTY PARADIGM

The vast majority of plant improvement in Amer-

ican history has been accomplished by farmers and

public sector plant breeders, and these tremendous

advances were made without any system of “inno-

vation-promoting” intellectual property protection

for plants. For the first two centuries of this country’s

| 13

S E E D I N G C O N T R O L : C O R P O R A T E T A K E O V E R O F S E E D S

Instead of continuing the historical tradition of

farmers having full access to seeds that they have

cultivated over centuries, agrichemical corporations

now own the sine qua non of farming—indeed, the

irreplaceable element of all food—seeds.

history, Congress consistently refused to authorize

patents on staple food crops. However, under increas-

ing pressure and marketing from agrichemical

companies, seed patents and the IP regime have

enshrined corporate interests instead of safeguard-

ing farmers and small, independent businesses.

THE PLANT PATENT ACT The federal Patent

Act of 1790 allowed utility patents for “any useful

art, manufacture, engine, machine, or device, or any

improvement thereon not before known or

used.”

However, utility patents were not allowed

for seeds and plants. Seed firms began pressing for

a plant patent system and Congress responded with

the Plant Patent Act of 1930 (PPA), which estab-

lished a patent system for asexually propagated

plants (e.g., ornamentals, fruit and nut trees, and

other plants reproduced via budding, cutting, and

grafting).

However, the real significance of Congress’s passage

of the PPA was what it excluded. The great major-

ity of food-producing plants—e.g., wheat, corn,

rice, oats, soybeans, most vegetables and many oth-

ers—are reproduced sexually (via seeds). Congress,

backed by farmers and USDA, refused to permit

patents on these staple food crops. This reflected

the common-sense conviction that private sector

entities should not be entrusted with monopoly

control over the very source of our food supply.

Even potatoes, which are asexually reproduced,

were denied patent protection, underscoring Con-

gress’s intent that important food crops should

remain unpatentable.

THE PLANT VARIETY PROTECTION ACT

(PVPA)

In 1970, Congress passed the Plant Variety

Protection Act (PVPA). This Act empowered

USDA to grant Certificates of Protection for novel

sexually reproducing plant varieties grown from

seed.

The Certificates conferred exclusive mar-

keting rights to the breeder for an 18-year term

(subsequently amended to 20 years). However, the

Certificates established two critical exemptions:

1) farmers must be allowed to save seeds for

replanting; and 2) patented varieties must be made

available to researchers.

With these exemptions,

Congress explicitly recognized that farmers and

public-interest breeders were vital partners in the

continuing improvement of plant varieties and

enshrined in law the millennia-old right of farmers

to save seeds.

The PVPA balanced the interests of seed firms,

farmers, and public sector plant breeders. On the

one hand, it granted strong protections to the seed

industry by making it illegal for one firm to illicitly

multiply and sell a seed variety developed by a cor-

porate competitor. At the same time, Congress

provided exemptions to farmers and breeders. As

noted above, farmers could save and replant PVPA-

protected seed, while plant breeders could utilize

protected varieties in further breeding work to

develop still better plants.

(A 1994 amendment

to the law prohibited farmers from selling PVPA-

protected seed to other farmers, which the original

PVPA had allowed.)

Despite the strong protections available under the

PVPA, the seed industry moved aggressively to

obtain still greater control over seed. The entry of

powerful agrichemical firms such as Monsanto and

DuPont into the seed business provided consider-

able clout and financial resources toward this goal.

These firms worked diligently to achieve what

their predecessors had failed to accomplish—total

control over plants as “inventions,” which meant

14 |

C H A P T E R O N E

The vast majority of plant improvement in

American history has been accomplished by

farmers and public sector plant breeders, and these

tremendous advances were made without any

system of “innovation-promoting” intellectual

property protection for plants.

obtaining utility patent protection. Utility patents

had long been granted to inventors of mechanical

devices, but Congress viewed such patents to be

inappropriate when applied to plants. (Utility

patents are further discussed in the next section.)

UNPRECEDENTED LEGAL DECISIONS

IMPACTING PLANT PATENTS

The critical paradigm shift came in Diamond v.

Chakrabarty, the 1980 landmark 5-4 Supreme

Court decision that held for the first time that living

organisms—in this case, a genetically engineered

bacterium—could be granted utility patents under

the 1790 Patent Act.

According to the Court’s

majority, because the patentee had introduced new

genetic material within the bacterium cell, he had

produced something that was not a product of

nature and was thus patentable subject matter. The

Chakrabarty decision that living organisms should

be patented is far from universally accepted.

Nonetheless, the decision paved the way for the

U.S. Patent and Trademark Office (USPTO) to

decide in the 1985 case Ex parte Hibberd that sex-

ually reproducing plants are patentable under the

Patent Act. This allowed corporations to obtain

utility patents, effectively a policy tool allowing

control over plants as “inventions.” Utility patents

(unlike PVPA certificates) allow the corporate

patent holders to deny farmers the right to save

and replant seed and exclude others from using any

patented variety for research.

Such patents also

formed the basis upon which the seed giants crafted

technology agreements, contracts that farmers must

now sign upon purchase of most patent-protected

seeds, which restrict a farmer’s access to seed,

among other constraints. (See Chapter Two.)

Affirming the USPTO’s practice, in 2001, another

5-4 Supreme Court decision in J.E.M Ag Supply v.

Pioneer Hi-Bred International upheld the granting of

utility patents for plants.

Of note, this case did

not involve a genetically engineered plant; instead,

the utility patent that was upheld was a patent for

a hybrid plant.

Henceforth, plants and plant parts became eligible

for utility patents, setting the stage for prohibition

of farmer seed saving and breeding as forms of

patent infringement. Today, utility patents have

largely superseded PVPA Certificates of Protection

as the preferred vehicle for intellectual property

rights to new plant varieties, particularly those

developed with use of genetic engineering.

These judicial decisions greatly expanded the scope

of intellectual property rights for plants. Corpora-

tions stampeded the USPTO with over 1,800 patent

submissions for the genetic material of seeds and

plants.

While firms raced to patent genetic resources

and plant breeding techniques, they also rapidly

acquired existing seed companies: the agricultural

biotechnology industry emerged through the rapid

acquisition of existing seed firms by chemical and

pesticide companies such as Monsanto, DuPont,

Syngenta, and Dow.

The agrichemical giants

spent billions of dollars to acquire seed firms; at

least 200 independent seed companies were pur-

chased and consolidated from 1996-2009.

As a consequence, what was once a freely exchanged,

renewable resource is now privatized and monop-

olized. Current judicial interpretations have

allowed utility patents on products of nature, plants,

and seeds, without exceptions for research and seed

saving. This revolutionary change is contrary to

centuries of traditional seed breeding based on col-

lective community knowledge, and reverses the

established notion that seeds should remain in the

public domain and for the public good.

| 15

S E E D I N G C O N T R O L : C O R P O R A T E T A K E O V E R O F S E E D S

What was once a freely exchanged, renewable

resource [seeds] is now privatized and monopolized.

THE ROLE OF GENETICALLY

ENGINEERED (GE) SEEDS

The introduction of GE, or transgenic, crops has

fundamentally altered farming for thousands of

American farmers. Genetically engineered seed

patents are now a central mechanism by which to

gain control and ownership of genetic material of

seeds writ large. Biotechnology firms can claim

comprehensive rights to GE plants by virtue of

inserting a single gene. The advent of genetic engi-

neering has expedited claims for seed patents and

subsequently has become a gateway to controlling

seed germplasm writ large.

The vast majority of the four major commodity

crops in the U.S. are now genetically engineered.

U.S. adoption of transgenic crops has been rapid,

but limited to commodity crops, in which GE

varieties now make up the substantial majority:

soybean (93 percent transgenic in 2010), cotton (88

percent) corn (86 percent), and canola (64 per-

cent).

This shift toward market domination of

GE seeds is a primary basis for the plethora of

investigations and lawsuits targeting farmers. (See

following chapter for more on litigation aspects.)

A NOVEL INVENTION? In genetic engineering,

a gene and other DNA from virtually any organ-

ism—most often from a soil bacterium and

virus—are spliced into a plant to transfer a new

trait, such as resistance to an herbicide. Seed firms

patent the added gene, and the method for insert-

ing it into the plant. In what many view to be

unjustified, patent officials and courts also grant

them patent rights to the entire plant.

Critics of the current patent regime point out that

a gene added by genetic engineering is just one

among thousands of native plant genes (a soybean

plant has over 46,000 genes).

And the single

property conferred by that gene is just one among

all of the many properties that make the plant what

it is. For example, non-GE properties include yield

potential, seed size, time to maturity, various seed

qualities (e.g., nutritional enhancements), disease

resistance, drought tolerance, and adaptations to

particular soils and climates, among many others.

Such properties are the product of millennia of

plant breeding and have nothing to do with

genetic engineering.

BEYOND LEGAL LIMITS:

BROADER IMPLICATIONS OF THE

PRESENT SEED PATENT REGIME

The advent of patent protection for plants has trig-

gered profound changes in American agriculture,

including socio-economic and environmental con-

16 |

C H A P T E R O N E

CROP SEED COST 1975 1995 2011 1975-1995 1995-2011

($/planted acre) (% increase) (% increase)

SOYBEANS $8.32 $13.32 $56.58 60% 325%

CORN $9.30 $23.98 $86.16 158% 259%

COTTON $5.88 $15.67 $96.48 166% 516%

Figures from USDA Economic Research Service: Commodity Costs and Returns: U.S. and Regional Cost and Return Data.

Datasets accessible at: http://www.ers.usda.gov/Data/CostsAndReturns/testpick.htm.

Such market concentration has led to increased

seed prices, reduced seed options and innovation,

restrictions on scientific research, and has

environmental impacts such as loss of diversity

and increased chemical use in farming.

sequences, as well as prosecution of farmers (as will

be discussed in the following chapters).

Plant patents, offering lucrative financial opportu-

nities, helped stimulate a wave of mergers and

acquisitions that have allowed much of the world’s

valuable crop germplasm to be controlled by a

handful of multinational agrichemical giants. Such

market concentration has led to increased seed

prices, reduced seed options and innovation,

restrictions on scientific research, and has environ-

mental impacts such as loss of diversity and

increased chemical use in farming.

SEED INDUSTRY CONCENTRATION The

introduction of utility patent protection for plants

is one of several factors

that triggered a massive

wave of mergers and acquisitions in the 1980s that

continues to the present day.

Large agrichemical

firms such as Monsanto, DuPont, Syngenta, Dow,

and Bayer acquired scores of seed companies,

including many of the largest firms with the high-

est-quality germplasm (e.g., DeKalb, Holden’s

Foundation Seeds, Pioneer).

As of 2009, these five

companies accounted for 58 percent of the world’s

commercial seed sales.

Monsanto, the world’s largest seed firm, accounted

for 27 percent of global commercial seed sales in

2009.

The company spent $4.81 billion within a

five-year span (2005-2009) to acquire numerous

seed firms, an average of $963 million annually.

This expenditure represents far more than their

entire research and development budget for both

seeds and chemicals over the same period.

Mon-

santo’s acquisitions include at least 22 midwestern

seed firms under its American Seeds subsidiary, and

major vegetable seed producers such as Seminis

and De Ruiter Seeds. Monsanto not only sells over

one-quarter of the world’s commodity seeds, it has

a near monopoly in GE “traits,” which are found in

roughly 86 percent of the GE seeds sold in the U.S.

The company also generates billions in sales through

technology licensing agreements with other seed

companies. Such is Monsanto’s dominance that in

2009, the U.S. Department of Justice began an

investigation into anticompetitive practices that

had resulted in sharply rising GE seed prices and a

dwindling supply of non-GE seed due to Mon-

santo’s seed pricing systems and market control.

Such consolidation has made it harder for smaller

firms to survive, and even more difficult for new

seed firms to get a start because so much of the

world’s most desirable germplasm has been locked

up by the seed giants. In 2009, the Independent

Professional Seed Association estimated that the

number of independent seed companies had

declined to just 100, from 300 independent and

consolidated firms in 1996.

INCREASED SEED PRICES Seed prices have

risen dramatically in corn, soybeans, and cotton,

crops predominated by patented GE varieties.

USDA data show that since the introduction of GE

seed, the average cost of soybean seed to plant one

acre has risen by a dramatic 325 percent, from

$13.32 to $56.58. Similar trends are evident for

corn and cotton seeds: cotton seed prices spiked

516 percent from 1995-2011 and corn seed costs

rose 259 percent over the same period (see table

below).

These price hikes are chiefly attributable to a

“technology fee” premium that the companies

charge for each GE “trait” introduced into a seed

line. Monsanto’s Roundup Ready trait fee has

risen sharply, from just $4.50 per bag of GE soy-

bean seed in 1996 to an estimated $17.50 by

2008.

| 17

S E E D I N G C O N T R O L : C O R P O R A T E T A K E O V E R O F S E E D S

Plant varieties have diminished as small, local seed

breeders have been replaced by large corporations

that operate on a monoculture model.

Agricultural economist Dr. Charles Benbrook has

found that rapidly increasing GE seed prices claim

an ever greater share not only of farmers’ operating

costs, but also of their gross crop income and net

return per acre.

The latter measures suggest that

the dramatically increased cost of GE seeds is off-

setting any economic benefits they provide.

According to Dr. Benbrook: “If these GE seed

price and income trends continue, the conse-

quences for farmers will be of historic significance,

as dollars once earned and retained by farmers are

transferred to the seed industry.”

Farmers and agronomists are greatly concerned by

these seed price increases, especially in the context

of rapidly rising costs for fertilizers and other inputs.

REDUCED SEED OPTIONS & INNOVATION

USDA economists have found that seed industry

consolidation has reduced seed innovation and

likely resulted in fewer crop varieties on offer:

Those companies that survived seed industry

consolidation appear to be sponsoring less

research relative to the size of their individual

markets than when more companies were

involved. … Also, fewer companies developing

crops and marketing seeds may translate into

fewer varieties offered.

In the era of GE seed domination in commodity

crops, it is becoming increasingly difficult for farm-

ers to purchase non-GE seeds. This leaves many

farmers with little choice but to jump on the trans-

genic bandwagon and purchase expensive GE seed,

whether they want them or not.

One sign of this failing innovation is that few types

of GE crops are available. Virtually 100 percent of

transgenic acreage in the U.S. is planted to crops

with just one or two traits. These are: 1) herbicide-

resistant crops that enable application of one or

more herbicides to kill weeds without harming the

crop; and/or 2) insect-resistant, Bt crops that pro-

duce toxins in their tissues that kill certain pests

that try to feed on them.

Moreover, the great majority of herbicide-resistant

(HR) crops are Monsanto’s Roundup Ready vari-

eties, resistant to Roundup herbicide, which

contains the active ingredient glyphosate. HR

seeds and their associated herbicides are sold

together as a profitable, packaged system, with her-

bicide revenues used to fund further HR crop

development. In the year 2000, roughly half of

Monsanto’s revenue came from sales of Roundup.

This revenue, from increased use of Roundup with

Roundup Ready crops, helped fund further HR

crop development efforts. As noted elsewhere in

this report, glyphosate is the most heavily used her-

bicide in the world.

Seed choices for farmers are further reduced by the

seed giants’ “biotech trait penetration” strategies.

Seed firms pack their seed catalogs with the latest

and most expensive GE seed varieties that often

contain multiple traits and retire conventional lines

and those with fewer traits. A prime example is

Monsanto’s “triple-stack” corn, which combines

the Roundup Ready (RR) trait and two insect-

resistance traits. Many corn farmers who have no

need or desire for the Roundup Ready trait

nonetheless purchase “triple-stack” corn because

they cannot find good varieties without it.

Mon-

santo is already in the process of transitioning

farmers from triple-stack to its eight-trait “Smart-

Stax” corn, the most expensive corn seed on the

market.

The following excerpt from a 2008 Goldman-

Sachs report gives a glimpse into how Monsanto

18 |

C H A P T E R O N E

USDA economists have found that seed industry

consolidation has reduced seed innovation and likely

resulted in fewer crop varieties on offer.

views its farmer-customers as “captives” of its

profit-driven marketing strategies:

…Monsanto would like to move as many cus-

tomers to triple stacks as possible. This can help

make inventory and production management

much more manageable and create a captive cus-

tomer base [emphasis added] for the 2010

launch of its SmartStax octo-stack product.

This understandably worries some of Monsanto’s

“captive” farmers who cannot afford, do not

need, or do not want the additional traits. Farmer

Harris Armour from Somerville, Tennessee has

nothing against GE seed, but he has some reser-

vations about SmartStax. “I like to buy what I

want,” he said. “When they start stacking for

things I don’t need, it just makes the price of the

seed go up.”

RESTRICTING INDEPENDENT SCIENTIFIC

RESEARCH

In 2009, 26 prominent university

scientists sent a letter to the Environmental Pro-

tection Agency (EPA) to express their alarm at

restrictions on independent scientific research due

to both utility seed patents and industry technol-

ogy agreements.

Technology/stewardship agreements required for

the purchase of genetically modified seed explicitly

prohibit research. These agreements inhibit public

scientists from pursuing their mandated role on

behalf of the public good unless the research is

approved by industry. As a result of restricted access,

no truly independent research can be legally con-

ducted on many critical questions regarding the

technology….

As one scientist warned, “If a company can control

the research that appears in the public domain, they

can reduce the potential negatives that can come

out of any research.”

According to several accounts in respected science

journals, companies suppress research in numerous

ways. Scientists who are deemed too critical may

be denied permission to conduct research at all.

In many cases, stringent and often unacceptable

conditions are set. For instance, Monsanto demanded

the right to approve publication of scientific

research on its Roundup Ready sugar beets by

university researchers as a condition for allowing

the research to proceed; the universities could not

accept such strictures and the research was aban-

doned.

Pioneer prohibited researchers from

publishing data on the near 100 percent mortality

of lady beetles that had fed on an experimental

variety of their GE corn.

According to University

of Arizona entomologist Bruce Tabashnik, a Dow

AgroSciences employee told him he would be

subject to legal action by Dow if Tabashnik cited

adverse data he had obtained from EPA concern-

ing one of the company’s GE corn varieties.

Syngenta prohibits scientists from doing studies

that compare its crops to those of its competitors.

University agricultural scientists have long provided

farmers and the public with reliable independent

data on the properties and performance of crops.

Independent science also provides vital input for

U.S regulators, who otherwise depend almost

exclusively on company-provided data in making

regulatory decisions on GE crops. According to the

scientists writing the EPA, the current patent-based

restrictions “unduly limit[]” the provision of inde-

pendent scientific data to regulators.

Another

scientist notes that companies could “launder the

data” they provide to regulators, and without the

check of independent science, such laundered data

would go completely unquestioned.

| 19

S E E D I N G C O N T R O L : C O R P O R A T E T A K E O V E R O F S E E D S

Dow AgroSciences is seeking USDA approval of

corn and soybeans resistant to 2,4-D, an active

ingredient in Agent Orange, which is often

ontaminated with carcinogenic dioxins.

LOSS OF PLANT DIVERSITY Just as biodiver-

sity is essential to the health of ecosystems and

human wellbeing, so our food and agricultural sys-

tem cannot thrive without a diverse array of seed

varieties. Buttressed by utility patents, the seed

monoculture paradigm has caused significant

harms, including an overall loss of plant biodiversity.

When the seed industry pushed an amendment to

the Plant Patent Act in 1968 to extend patents to

include sexually reproduced plants, USDA opposed

granting such patents, arguing that they would

threaten development and introduction of new

seed varieties. USDA’s concern was prescient of the

grave loss of crop diversity that has since occurred.

Promoting homogenous seed stocks via seed

patenting and industrial agriculture has resulted in

a dramatic loss of crop biodiversity.

Plant varieties have diminished as small, local seed

breeders have been replaced by large corporations

that operate on a monoculture model. For cen-

turies farmers and plant breeders fostered a diverse

array of germplasm by selecting for locally adapted

varieties to thrive in diverse soils, geographies, and

climates. To illustrate, the U.S. has lost 6,000 of

7,000 apple varieties that were formerly grown in

local regions throughout the nation. Today, only

two cultivars account for more than 50 percent of

apple production.

Further, most agricultural cultivars are derived

from native, locally-adapted plants and depend on

them as a source of new genes. In particular danger

of extinction in the wild are soybeans, tomatoes,

wheat, coffee, and grapes.

The loss of these hearty,

native varieties can spell extinction for common

crops in the decades to come.

SUPER WEEDS, SUPER PROBLEM Agrono-

mists around the globe are alarmed by the growing

epidemic of weeds that have evolved resistance to

glyphosate, the primary herbicide sprayed on GE

crops. Widespread planting of Monsanto’s

Roundup Ready crops has made glyphosate (the

active ingredient of Roundup) the most heavily

used pesticide in the world.

This massive chemical

assault has triggered an epidemic of glyphosate-

resistant weeds. It was recently reported that the

area of U.S. cropland infested with glyphosate-

resistant weeds has expanded to 61.2 million acres

in 2012, according to a survey conducted by Stra-

tus Agri-Marketing. Nearly half of all U.S. farmers

interviewed reported that glyphosate-resistant

weeds were present on their farm in 2012, up from

34 percent of farmers in 2011. The survey also

indicates that the rate at which glyphosate-resistant

weeds are spreading is gaining momentum, increas-

ing 25 percent in 2011 and 51 percent in 2012.

In response, farmers resort to more soil-eroding

tillage operations to combat these weeds and also

turn to increasingly toxic chemical cocktails. As a

result, pesticide usage has significantly increased in

the U.S. since the adoption of GE crops. Based on

USDA data, upward of 26 percent more pesticides

per acre were used on GE crops than on non-GE,

conventional crops in 2008.

Leading weed scientists warn that farmers are

“running out of options” to control what is rapidly

becoming an “unmanageable problem.”

Because

of the extraordinary dependence on Roundup

Ready crops, weeds resistance to glyphosate and

multiple herbicides pose a threat to global food

production.

20 |

C H A P T E R O N E

In 2009, 26 prominent university scientists sent a

letter to the Environmental Protection Agency (EPA)

to express their alarm at restrictions on independent

cientific research due to both utility seed patents

and industry technology agreements.

Agrichemical companies’ response is to seek com-

mercial approval of a next generation of GE crops

that are resistant to a more toxic brew of chemicals.

Dow AgroSciences is seeking USDA approval of

corn and soybeans resistant to 2,4-D, an active

ingredient in Agent Orange, which is often con-

taminated with carcinogenic dioxins. Likewise,

Monsanto is planning to seek approval for trans-

genic, dicamba-resistant soybeans, corn, and cotton.

Dicamba has been linked to increased rates of

colon and lung cancer in farmers.

* * *

Today’s seed patent system transfers control of vital

resources—seeds and plants—from communities

and the public domain to private corporations.

Such control and privatization greatly impacts

broader socio-economic issues as highlighted in

this chapter. The following chapter will discuss

how legally binding technology contracts, which

farmers must now sign upon purchasing seeds, have

become a central instrument for harassing and

often prosecuting farmers.

| 21

S E E D I N G C O N T R O L : C O R P O R A T E T A K E O V E R O F S E E D S

istorically, farmers have ensured a

diverse genetic pool from which other

farmers and plant breeders can select,

using experimentation and natural

selection of new plants and varieties. Unfortu-

nately, the advent of patented seeds has dramatically

altered this historic role. To exert greater control

over their patented material, seed companies rely

on farmer contracts known as Technology Use

Agreements. These agreements include a variety of

provisions that require company access to farmer

records, dictate farming practices, and open the

door for on-site investigations.

Monsanto, the industry leader in procuring seed

patents, was the first company to require farmers

to sign technology and stewardship agreements.

Farmers sign a short Technology Use/Stewardship

Agreement (agreement or contract) that incorpo-

rates by reference the company’s Technology Use

Guide (use restrictions), an extensive document

that Monsanto revises annually, thereby affecting

the duties of a farmer under the original agree-

ment.

Other agrichemical companies follow this

model.

These contracts subject farmers to significant inva-

sions of their private property and personal records.

For example, certain provisions transfer liabilities

associated with a company’s patented technology,

including market burdens and transgenic contam-

ination events, directly to the farmer.

22 |

H A P T E R T W O

TECHNOLOGY USE AGREEMENTS:

FARMERS AS SERFS

The agreements contain broad provisions giving

seed companies access to any documents they deem

to be necessary when investigating farmers.

Additionally, the complex seed genetic licensing

schemes between agrichemical companies unify

industry interests against small farmers. By devel-

oping inter-company agreements, they can bring

lawsuits against farmers on one another’s behalf.

For example, Monsanto explicitly acts on behalf of

Dow Agrosciences, licensing some of Dow’s genet-

ically engineered traits in the Monsanto

Technology Use Agreement.

Syngenta’s Steward-

ship Agreement explains that it can act on behalf

of Monsanto and Dow to protect all three compa-

nies’ patents.

EXPANSIVE SCOPE OF

TECHNOLOGY AGREEMENTS

The scope of the technology agreements allows for

intrusive invasion of farmer privacy. For example,

Dow’s technology agreement requires farmers to

complete questionnaires for, and provide planting

information to, company investigators.

Farmers

must also agree to give Monsanto their internet

service provider records, purportedly to “validate

Grower’s electronic signature.” Monsanto, Dow,

and Syngenta agreements allow the companies to

access records concerning farmers’ activities held

by third parties, such as the U.S. government.

particular, the agreements allow investigators to

review USDA Farm Service Agency (FSA) crop

reporting information, including aerial photos and

farmer submissions, on any land farmed by the

grower.

Providing access to the FSA form helps companies

to determine how many bags of seed a farmer was

sold and how many acres of a particular crop were

planted, facts the companies use to draft complaints

against farmers they suspect of saving seed. This

data can also be used to identify adjacent fields

owned by neighboring growers—who may them-

selves be potential targets of investigations—

without their consent.

Additionally, the agreements contain broad provi-

sions giving seed companies access to any

documents they deem to be necessary when inves-

tigating farmers. As one example, the Monsanto

agreement obligates farmers: “To provide Mon-

santo copies of any [emphasis added] records,

receipts, or other documents that could be relevant

[emphasis added] to Grower’s performance of this

Agreement.”

This includes receipts for any chem-

icals or herbicides purchased, acreage reports, and

aerial photographs.

Growers have to produce

these records seven days after written request.

The

breadth of this provision allows the company to

obtain documents that are not necessarily directly

related to a farmer’s seed and permits investigators

to assess a farmer’s financial state prior to filing suit.

Other invasive aspects of the agreements include

requiring farmers to identify and provide investi-

gators access to all the farmer’s land and facilities.

The agreements also contain provisions that allow

for property investigations, such as access to any

seed storage containment under the control of the

grower.

For example, Monsanto has the following

blanket provision covering all patented seeds:

If Monsanto reasonably believes [emphasis

added] that a grower has planted saved cotton-

seed containing a Monsanto biotech trait,

Monsanto will request invoices and records to

confirm that fields in question have been

planted with newly purchased seed. This infor-

mation is to be provided within 7 days after

written request. Monsanto may inspect and test

all of the grower’s fields to determine if saved

seed has been planted.

| 23

T E C H N O L O G Y U S E A G R E E M E N T S : F A R M E R S A S S E R F S

Historically, farmers have ensured a diverse

genetic pool from which other farmers and plant

breeders can select, using experimentation and

atural selection of new plants and varieties.

24 |

C H A P T E R T W O

COMING TO A FARM NEAR YOU:

TECHNOLOGY AGREEMENTS FOR NON-GE SEEDS

For many years, the majority of lawsuits against farmers were related to GE seeds.

However, agrichemical companies are now extending their technology agree-

ments to cover non-GE seeds. For example, Seminis tomato seed packets notify

the purchaser that upon opening the seed packet, they are engaging into a con-

tract with the company and cannot save and replant seeds or use them for any

kind of research.

PHOTO PROVIDED BY ORGANIC SEED ALLIANCE

COMPREHENSIVE BANS ON SEED SAVING

Seed company technology agreements and atten-

dant contracts stipulate that farmers cannot save

seed for another generation of planting. The pro-

visions are comprehensive and extremely inclusive

as they attempt to cover any format of seed saving

that might arise.

For example, Monsanto agreements prohibit seed

saving by asserting that farmers may not save or

clean seeds for planting, supply Monsanto seeds

from/to anyone for planting, and/or transfer seeds

to anyone for planting, unless the grower is also

under contract with Monsanto for seed produc-

tion.

Rather, farmers are permitted to use seed

only for a “single commercial crop.”

Farmers are

also prohibited from planting seed or transferring

seed to others for “breeding, research, or generation

of herbicide registration data.”

Further, the agree-

ments prohibit research on growers’ crops “other

than to make agronomic comparisons and conduct

yield testing for Grower’s own use.”

Other agrichemical companies have followed suit

in restricting replanting and research. Pioneer’s

Terms and Conditions of Purchase for all of its

patented seeds specifies that buyers can only pur-

chase seed for a single crop and explicitly forbids

seed saving.

It forbids any breeding or research

of its seed.

Similarly, Dow’s technology agree-

ment stipulates the contract to be “a limited,

non-transferable, revocable, non-exclusive license

by [Dow] under the Licensed Rights to purchase

Seed from Seed Seller and to plant Purchased Seed

to produce a single commercial crop in the United

States.”

Dow’s agreement also forbids seed saving,

transferring seeds to others, researching, propagat-

ing, and breeding.

Syngenta’s agreement contains

similar covenants.

ACKNOWLEDGMENT OF FORESEEABLE

TRANSGENIC CONTAMINATION

The tech-

nology agreements also recognize that GE crops

are, by nature, transportable from one farm onto

another farm by pollen flow or through seed

movement via animals or equipment: “It is gener-

ally recognized in the industry that a certain

amount of incidental, trace level pollen movement

occurs, and it is not possible to achieve 100 percent

purity of seed or grain in any crop production sys-

tem.”

Such transgenic pollen flow and seed

movement presents a direct economic and

irreparable threat to farmers growing conventional

or organic crops in the forms of lost markets, rep-

utation, crop certification, and ability to sow the

crop of their choice. Such contamination also

opens the contaminated farmer to potential alle-

gations of patent infringement, since infringement

is a strict liability offense, which does not require

a showing of intent.

THIS LAND IS NOT YOUR LAND Agrichemical

company contracts are created so that customers

remain bound by the terms from season to season

and can only leave the contractual relationship by

formally notifying the company. In many situa-

tions, if one farmer sells land cultivated with

patented crops to another person, the new owner

must also adopt the technology agreement.

This

process is as follows: An updated agreement is

mailed to farmers each year, and farmers are auto-

matically bound by any new terms if they continue

to use Monsanto’s seed.

Additionally, farmers

who discontinue their use of patented seed face

patent infringement allegations in the event that

some of that seed from the previous year sprouts

“volunteers” in fields converted to another variety.

If there is a contract breach, Monsanto can blacklist

the farmer from being granted any future contract

unless the company provides the farmer express

| 25

T E C H N O L O G Y U S E A G R E E M E N T S : F A R M E R S A S S E R F S

Seed company technology agreements and

attendant contracts stipulate that farmers cannot

save seed for another generation of planting.

permission in which the grower must acknowledge

the prior breach.

EXTREME DAMAGES, BANKRUPTCY, AND

CONTROLLED JUDICIAL REVIEW

Technol-

ogy agreements expose farmers to extreme

financial hardship, including bankruptcy.

Con-

tracts specify that the company can recover costs

and fees when suing over intellectual property

rights.

Patent law also permits prosecution and

damage awards for up to three times the actual

amount of loss.

This liability can also lead to the

grower paying the seed company and its licensed

technology providers for their attorneys’ fees and

costs of enforcing the agreement. Bankruptcy is

not an uncommon outcome.

Adding to these costs, Monsanto’s contracts places

farmers at an additional disadvantage by requiring

that the exclusive jurisdiction and venue for all dis-

putes go to the U.S. District Court for the Eastern

District of Missouri or the Circuit Court of the

County of St. Louis

—both in Monsanto’s home-

town. Similarly, Pioneer’s Terms and Conditions

requires that all claims be governed by the laws of

the state of Iowa and that all cases be litigated in

Wilmington, Delaware.

At least one federal judge

has held a Missouri forum clause in a prior Mon-

santo technology use agreement an unenforceable

“contract of adhesion” due to the difference in bar-

gaining power between Monsanto and individual

growers, the fact that the contract terms are not

open to negotiation, and the lack of market alter-

natives to Monsanto’s transgenic soybeans.

Monsanto also applies special conditions to cotton

farmers, requiring any claims from them against

Monsanto be undertaken pursuant to confidential

arbitration.

Its contract has a further damages

provision that cotton farmers must pay in excess

of other farmers’ duties under the contract.

These contractual requirements present legal,

financial, and logistical hurdles for farmers that can

lead to financial ruin. As a result, farmers are often

forced to agree to confidential, out-of-court set-

tlements in order to move on with their lives and

end investigations and litigation. According to

Monsanto’s records as of 2006, farmers paid the

company an estimated $85 to $160 million in out-

of-court settlements.

STATE FARMER PROTECTION ACTS In light

of these contract requirements, it is unsurprising

that in recent years several states have enacted

“farmer protection” laws to provide their farmers

with some procedural protections from patent

holders’ pernicious practices and require that any

seed contract that is in conflict with these laws is

unenforceable. Some of their protections include:

in instances of alleged infringement, requiring

written notice to and/or permission of the farmer

before any crop sampling is undertaken by the

patent holder and requiring that the farmer and a

state representative be present for the sampling; that

independent or matching samples be taken; that

venue is proper in the home state, as opposed to

the patent holder’s forum of choice; and that unin-

tended contamination cannot be grounds for

infringement.

Unfortunately, only a few states

have passed such laws, and many more are needed.

These laws and their importance are discussed fur-

ther in Chapter Four.

26 |

C H A P T E R T W O

In many situations, if one farmer sells land cultivated

with patented crops to another person, the new

owner must also adopt the technology agreement.

| 27

grichemical companies devote signifi-

cant resources to prosecution of farmers

for alleged seed patent infringement.

For example, in 2003 Monsanto’s inves-

tigation department housed 75 employees with a

budget of $10 million for the purpose of investi-

gating and prosecuting farmers for patent

infringement.

In recent years, other companies

such as DuPont have hired private investigation

firms such as Agro-Protection International to pur-

sue farmers.

In 2012, DuPont, the world’s second

largest seed company, hired dozens of investigators

to examine planting and purchasing records of

Canadian farmers, as well as take samples from

their fields for genetic analysis. DuPont is expand-

ing this operation to the U.S. in 2013, hiring

approximately 35 investigators, many former police

officers.

Efforts to prosecute farmers can be divided into

three stages: investigations of farmers; out-of-court

settlements; and litigation. Depicting the full scope

of the industry’s pursuit of farmers is nearly impos-

sible because many cases are settled by confidential

out-of-court settlements. Nonetheless, public

records and anecdotal accounts paint a vivid pic-

ture of widespread investigation of farmers.

According to interviewed farmers, hired investiga-

tors trespass on farmers’ property to take photos or

crop samples; make threats and engage in harassment;

adopt disguises (e.g., pretend to be conducting sur-

veys of seed and chemical purchases); and even

engage in entrapment-like activity.

Some investi-

gations are confrontational, involving public threats

and belligerent conduct.

(Our 2005 Monsanto v.

U.S. Farmers covered many of these examples.)

H A P T E R T H R E E

DRAGNET: PURSUING AND

PROSECUTING AMERICAN FARMERS

One federal court summarized Monsanto’s

“scorched-earth” methods of enforcement as follows:

In order to protect its patents, Monsanto sent

‘agents’ into the farming community to ensure

that farmers were not purchasing Roundup

Ready seed, harvesting it, saving seed from the

crop and then planting second generation

Roundup Ready seed the next season. Under

the patents, farmers were obligated to purchase

new Roundup Ready seed each year and were

prohibited from saving second generation seed.

This changed the way farmers had done busi-

ness as traditionally they saved seed, cleaned it

and replanted it the following year. The

scorched-earth policies used by Monsanto in

enforcing the single-use restriction against

farmers in some instances altered the custom-

ary neighborly relationships for which farmers

are known. Instead of helping each other with

barn-raisings and equipment sharing, those

caught saving seed, a practice that is hundreds

of years old, were turned into ‘spies’ against

their neighbors, replacing the atmosphere of

cooperation with one of distrust and

suspicion.

While some farmers are knowingly saving seed,

research and interviews also show that investiga-

tions are frequently intrusive and sometimes a

product of erroneous or fabricated evidence. Such

was the case when, for example, an Illinois soybean

farmer couple found themselves under investiga-

tion by Monsanto for alleged seed patent

infringement, only to discover that the husband’s

signature had been forged on the technology use

agreement.

The couple was unaware that saving seeds and

replanting them was illegal under Monsanto’s tech-

nology agreement because the company failed to

present the agreement to them for their signatures.

Upon examination of the contract, it was clear that

the husband’s signature had been forged. It was

signed “Tony,” and he always signed his name

“Anthony.” The couple remained under continual

investigation and harassment, and eventually, with

no further financial resources to defend themselves,

signed a confidential settlement with Monsanto.

Similarly, David Runyon, an Indiana corn and soy-

bean farmer, was investigated by Monsanto using

questionable tactics. Monsanto accused Runyon of

illegally growing its patented GE soybean, despite

the fact that for several years he had always pur-

chased public, non-patented soybean seed from

local universities.

Monsanto pointed to his pur-

chasing pattern of the herbicide glyphosate, often

used on GE soybean crops, as evidence. Monsanto’s

attorney claimed that the company had an agree-

ment with the Indiana Department of Agriculture

to search his land; however, at the time of the pur-

ported infringement, the Indiana Department of

Agriculture did not exist.

Ultimately, Monsanto

was unable to present a copy of this alleged agree-

ment and dropped its investigation. However, the

protracted investigation required considerable

financial resources of Mr. Runyon.

David Brumback, a Missouri farmer, found himself

under investigation because he was a customer of

the Pilot Grove grain elevator co-op, which was

under investigation for cleaning Roundup Ready

seeds. Yet Mr. Brumback never saved Roundup

Ready seeds, and up until the investigation, had

been a loyal Monsanto customer. The initial inves-

tigation targeted Mr. Brumback’s father, seemingly

unaware that he had passed away a decade earlier.

Unperturbed, the investigators turned to David

Brumback. A year-and-a-half later, Monsanto

finally dropped the charges as a result of lack of

evidence of wrongdoing.

Monsanto is not the only seed company pursuing

farmers with questionable tactics. Pioneer Hi-Bred

28 |

C H A P T E R T H R E E

| 29

D R A G N E T : P U R S U I N G A N D P R O S E C U T I N G A M E R I C A N F A R M E R S

investigators impersonated farmers looking to buy

wheat seeds from seed cleaner Dean Fischer,

whom they suspected of illegally cleaning and sell-

ing their patented seed in 2005.

The case

eventually settled out of court.

SEED CLEANERS ALSO UNDER THREAT

In Monsanto v. Parr, Monsanto sued Maurice Parr,

the operator of a mobile seed and grain cleaning

business.

Mr. Parr’s seed cleaning business sepa-

rates viable whole soybean seeds from stems, leaves,

and dirt in preparation for replanting.

Seed saving

requires the services of seed cleaners, who use spe-

cialized equipment to remove chaff and weed seed

from harvested seed to prepare it for planting and

prevent the seeding of weeds along with the crop.

Mr. Parr was sued by Monsanto for “aiding and

abetting” seed-saving farmers by cleaning seeds

from harvests so that farmers could save and re-

plant.

He did not know if the seeds he cleaned

were patented or not because seed cleaners do not

perform genetic tests on a customer’s seeds. Mr.

Parr made clear to his clients that he was not

responsible for enforcing seed patent agreements

to which he was not a party. Monsanto sued him

for inducing patent infringement, claiming his

statements encouraged flouting of their patents.

Monsanto subpoenaed Mr. Parr’s bank records

without his knowledge, began contacting his

clients, and for 14 months investigated Mr. Parr and

his longtime friends and clients.

Having accumu-

lated over $25,000 in legal fees before even setting

foot in a courtroom and no longer able to afford

legal representation, Mr. Parr was forced to settle

out-of-court and submit to the strict provisions

proposed by Monsanto.

According to Mr. Parr,

he lost almost 90 percent of his former customers,

who are now afraid that association with him will

lead to prosecution against them as well.

In another case, the Pilot Grove grain elevator co-

op in Missouri came under investigation after

Monsanto received an anonymous call alleging that

the co-op was cleaning customers’ Roundup

Ready soybeans seeds. (Monsanto maintains an

anonymous hotline, urging farmers to turn in

neighbors.)

Monsanto subpoenaed the co-op’s

records, and eventually filed a patent infringement

suit for the cleaning of patented seeds, claiming

that the co-op should have been policing its own

customers. The co-op initially refused to settle.

However, Monsanto subpoenaed over 100 farmers,

as well as five years of sales records, leading the co-

op’s attorney Steven H. Schwartz to conclude,

“Monsanto is doing its best to make this case so

expensive to defend that the co-op will have no

choice but to relent.”

Eventually they did relent;

in July 2008 the parties settled.

Pursuing seed cleaners has proven to be a valuable

complement to seed companies’ investigations of

farmers. Mr. Parr’s records led to the investigations

and subsequent settlements with eleven of Parr’s

customers for patent infringement.

With the

information gathered from Pilot Grove, Monsanto

sued two farmers, negotiated settlements with 25

others, and accused at least one farmer, David

Brumback (see page 28), of patent infringement

simply because he was a customer of the co-op.

PROSECUTING AMERICA’S FARMERS

Some farmers are not willing to acquiesce to the

company’s demands and are sued. In many cases,

the final results of Monsanto’s lawsuits against

In 2012, DuPont, the world’s second largest seed

company, hired dozens of investigators to examine

planting and purchasing records of Canadian

armers, as well as take samples from their fields

for genetic analysis.

farmers remain unknown, as they have ended in

confidential settlements. Of those cases with pub-

licly recorded monetary judgments, the data reveal

a number of sizeable payments to Monsanto.

As of January 2013, Monsanto filed 144 lawsuits

based upon purported violations of its Technology

Use Agreement and its patents on GE seed tech-

nology. These cases involve 410 farmers and 56

small businesses or farm companies, in at least 27

different states.

Seventy-two lawsuits ended in recorded damages

awarded to Monsanto. Twenty-seven lawsuits

ended in unrecorded damages awarded to Mon-

santo (confidential settlements). Fourteen lawsuits

were dismissed, with no indication of whether

damages were awarded to Monsanto. Eleven law-

suits were ongoing as of November 28, 2012.

Sums awarded to Monsanto in 72 recorded judg-

ments against farmers totaled $23,675,820.99. The

largest judgment was $3,052,800.00; the smallest

judgment was $5,595.00.

In many cases, the figures indicated may be lower

than the actual payments farmers must pay because

they may not include expert witness fees, post

judgment interest, plaintiff’s attorney fees, costs of

testing fields, etc. For example, in Monsanto Co et

al v. Thomason et al, which involved two plaintiffs,

Monsanto Company and Delta Pine, the defen-

dants not only had to pay $447,797.05 to

Monsanto and $222,748.00 to Delta Pine in dam-

ages; they also faced additional fees to Monsanto

of $279,741.00 in attorney fees, $57,469.13 in

costs and advanced expenses, and $75,545.83 for

testing fields, as well as additional fees to Delta Pine

of $82,281.75 in attorney fees and $5,801.00 in

costs and advanced expenses.

OUT-OF-COURT SETTLEMENTS

Finally, the above cited recorded cases and judg-

ments fail to convey a true picture of the scope of

the seed giants’ aggressive actions against U.S. farm-

ers. This is because as one federal district court

concluded “[t]he vast majority of cases filed by

Monsanto against farmers have been settled before

any extensive litigation took place.”

Press reports

and Monsanto’s own statements suggest that the

company investigates roughly 500 farmers each

year.

Under financial duress, many farmers who

have been accused of patent infringement, even

when based on insubstantial evidence, are forced

to settle out of court rather than face an expensive

and lengthy lawsuit to defend themselves.

In 2006, CFS used materials downloaded from

Monsanto’s website to determine the approximate

scope and cost to farmers from these out-of-court

settlements.

These documents showed that Mon-

santo had instituted an estimated 2,391 to 4,531 of

“seed piracy matters” against farmers in 19 states.

This is 20 to 40 times the number of reported law-

suits found in public records.

Pursuant to these settlements, farmers paid Mon-

santo an estimated $85,653,601 to $160,594,230.

These estimated settlements paid to Monsanto by

farmers exceeds by four to eight times the total of

recorded judgments ($23.6 million).

Documents used to calculate these estimates have

since been removed from Monsanto’s website; for

the past seven years, further documents have not

been made available. Due to the confidential nature

of these settlements, exact amounts farmers agree

to pay Monsanto are often unavailable.

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C H A P T E R T H R E E

Depicting the full scope of the industry’s pursuit of

farmers is nearly impossible because many cases are

settled by confidential out-of-court settlements.

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D R A G N E T : P U R S U I N G A N D P R O S E C U T I N G A M E R I C A N F A R M E R S

FOLLOWING THE LEADER:

LITIGATION BY OTHER SEED GIANTS

As the dominant actor in seed biotechnology for

the last decade or more, Monsanto has been the

most aggressive to date in pursuing litigation

against farmers and farm-related businesses. How-

ever, Monsanto is not the only company that

prosecutes farmers for patent infringement based

on saving or cleaning seed. Other seed giants such

as Syngenta, Pioneer, and BASF also sue farmers

to enforce their patents, and these lawsuits will only

increase as these companies obtain more patents.

Notably, unlike the vast majority of Monsanto

cases, most of these investigations and lawsuits were

pursued in defending non-GE seed patents.

Syngenta—the multinational corporation formed

in 2000 by the merger of agribusiness giants

Novartis and Astra-Zeneca, that now ranks third in

total sales in the commercial agricultural seeds

market—prosecutes seed companies for allegedly

selling its patented seeds unmarked, in violation of

Syngenta’s patent and trademark. In September of

2002, Syngenta sued six Arkansas seed companies,

co-operative businesses, and seed cleaners for

allegedly reselling its patented Coker Wheat.

Syngenta alleged that each of these companies sold

and marketed the patented wheat to farmers with

their own descriptions and at “a significantly lower

price.”

One case ended in settlement, with Syn-

genta being awarded a permanent injunction, the

right to inspect the premises of the company for

three years, and $152,500 in damages.

Three cases

ended with settlements before trial,

and one case

ended in a permanent injunction being granted to

Syngenta after a default judgment was entered

against the defendant.

One case proceeded to

trial and ended in a jury verdict in favor of Syn-

genta.

Syngenta was awarded a permanent

injunction, damages in the amount of $135,000

plus interest, and over $12,000 in costs.

The

United States Court of Appeals for the Federal

Circuit later reversed this ruling,

and on remand

the defendant was awarded trial costs in the

amount of $2,852.

Another seed giant, Pioneer Hi-Bred Interna-

tional, has sued small seed companies and

individual farmers over its patented soybeans. Like

many of Monsanto’s cases, all of the documented

lawsuits that Pioneer has brought against small

farmers have ended in out-of-court settlement. In

one case in 2005, Pioneer sued an Illinois couple

and their seed company for cleaning and selling

patented soybean seed.

The settlement ending

that case indicated that Pioneer could continue to

monitor the farmers’ business in the future for

patent infringement, and that the farmers would

be liable for $50 in liquidated damages for each

bushel of infringing soybeans discovered.

The

company also sued a Missouri seed cleaner for

cleaning and reselling its patented wheat seed

without a license in 2005 but voluntarily dismissed

its claims four months later,

most likely because

of a settlement.

Pioneer has not limited its patent prosecution to

known violations. In 2009, based on anonymous

“reports,” Pioneer sued two brothers in Illinois

who had bought 750 bags of its seed and whom

allegedly planned to save the seed for replanting.

The settlement between the farmers and the com-

pany that ended this case required the farmers to

submit to three years of inspections and crop test-

ing by Pioneer, even though Pioneer conceded

that the farmers denied any intent to breach Pio-

neer’s patent. The farmers also agreed to pay

liquidated damages of $50 per bag of seed equiva-

As of January 2013, Monsanto filed 144

lawsuits based upon purported violations of its

Technology Use Agreement and its patents

on GE seed technology.

32 |

C H A P T E R T H R E E

lent saved for replanting should they violate the

terms of the injunction.

In May 2012, Pioneer initiated a lawsuit against

five “John Does” whom it alleged “are offering to

sell, selling, transferring and/or supplying Pioneer

transgenic seed incorporating patented technology

owned by Pioneer without license or authoriza-

tion.”

Pioneer sought the court’s help in

determining the identities of individuals advertis-

ing Pioneer seed on the Internet so that it could

proceed to prosecute them for patent infringement

and breach of contract. Pioneer voluntarily dis-

missed its claims two months later.

Finally, BASF—the self-declared “world’s leading

chemical company”—has engaged in the same

type of legal campaign against farmers. In 2004 it

sued a sole proprietorship seed company and

twenty five “John Does” for allegedly infringing its

patent on herbicide resistant “Clearfield” rice.

BASF also brought a claim of conversion in this

lawsuit, alleging that the defendants deprived

BASF of control over the patented seed without

permission.

As part of a consent judgment, BASF

gained the right to sample crops and inspect the

premises for three years (including through “under -

cover purchases”) and $20,000 in damages from

the company/owner.

In another Clearfield lawsuit against fourteen rice

farmers and eleven small farm businesses and part-

nerships in Arkansas, the negotiated consent

judgment held the defendants jointly and severally

liable for $2,500,000 and required all defendants

to prove that the Clearfield seed was returned, and

further, that the land where Clearfield rice was

grown would be replanted with soybeans and

treated with glyphosate herbicide. BASF also

retained the right of inspection for three years.

* * *

Finally, the following lawsuits represent recent, high

profile cases that could potentially have significant

impacts on the ability of the seed industry to liti-

gate against farmers in the future and could even

change some fundamental aspects of the present

seed and plant patent regime.

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D R A G N E T : P U R S U I N G A N D P R O S E C U T I N G A M E R I C A N F A R M E R S

In February 2013, the U.S. Supreme Court will

review a federal appeals court decision that Vernon

Hugh Bowman, a 75-year-old Indiana farmer,

infringed upon Monsanto’s patents when he pur-

chased and planted soybean seeds from a grain

elevator. The seeds purchased from this third party

were sold as a mix of undifferentiated commodity

seeds. Additionally, he signed no company technol-

ogy agreement because Bowman purchased the

seeds from a third party. Monsanto sued for patent

infringement because the majority of plants from

the second planting were identified as products of

Roundup Ready seeds.

Bowman’s case centers on a doctrine known as

“patent exhaustion.” This doctrine holds that the

first authorized sale of a patented item ends, or

“exhausts,” a patentee’s (in this instance, Mon-

santo’s) right to control the further use of that

item. In this case, the patent exhaustion doctrine

would mean that Mr. Bowman or others in pos-

session of such seed could not be restricted on their

use via patent law, and would be free to replant

seeds if they wished. Patent exhaustion limits a

patent holder’s ability to hold a monopoly and

receive royalty payments in perpetuity.

Center for Food Safety (CFS) and Save Our Seeds

(SOS) filed a brief at the Supreme Court in sup-

port of Mr. Bowman. In our brief we explained

that applying the doctrine of patent exhaustion

would restore farmers’ right to save seed in some

circumstances. The brief also included other reasons

to advocate for patent exhaustion including that it

would help to curb seed oligopoly, limit seed giants’

practice of farmer prosecution, among other issues.

(See the Amicus Brief at www.centerforfood

safety.org.) The Court’s upcoming decision in Bow-

man on these issues may have broad ramifications

for the future of seed independence in the U.S. and

for the future of U.S. agriculture generally.

BOWMAN V. MONSANTO CO.

ORGANIC SEED GROWERS & TRADE ASS’N

V. MONSANTO CO.

In 2011, the Organic Seed Growers and Trade

Association (OSGATA) filed a lawsuit on behalf of

60 family farmers, seed businesses and organic agri-

cultural organizations against Monsanto to challenge

the chemical giant’s patents on GE seed. The

organic plaintiffs were forced to sue preemptively

to protect themselves from being accused of patent

infringement should they ever become contami-

nated by Monsanto’s GE seed, something Monsanto

has done to other farmers in the past.

Rather than provide plaintiffs with a binding

promise that they would never sue them for patent

infringement upon contamination, Monsanto filed

a motion to dismiss the case. In February 2012, the

District Court judge dismissed the case, aligning

with Monsanto by finding that the plaintiffs’ con-

cerns over being contaminated with Monsanto's

GE seed and then being accused of patent

infringement were unreasonable. Plaintiffs appealed

this decision to the Court of Appeals for the Federal

Circuit, which heard oral argument early in 2013.

The decision of the Court is pending.

CFS is a plaintiff in this case, joining organic farmers

and proponents of sustainable agriculture from

around the country and around the globe.

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C H A P T E R T H R E E

ASSOCIATION FOR MOLECULAR PATHOLOGY V. MYRIAD GENETICS, INC.

Association for Molecular Pathology v. Myriad Genetics,

Inc. is not about seeds directly, but rather about the

broader question of whether genes themselves are

patentable subject matter. Since the 1980 landmark

case Diamond v. Chakrabarty, in which the Supreme

Court ruled by a 5-4 margin that living organisms

could be patented, corporations have raced to

patent genes and their informational DNA

sequences.

One such company, Myriad Genetics, removed

from the body (or “isolated”) several genes that

correlate to increased risk to a type of breast can-

cer, known as the Breast Cancer Susceptibility

Genes 1 and 2 (BRCA or BRCA1-2). Myriad

then created expensive genetic testing and used

their patents to prevent others from providing the

tests to cancer patients. Of particular concern to

the researchers and others is the effect the gene

patents have on the growth and development of

medical research, as well as the accessibility of life-

saving cancer screening tests that require use of the

patented genes.

The Court will hear argument in the case in spring

2013, with a final decision later this year. While

framed in the context of human genes, the Court’s

decision will likely impact the ability of corpora-

tions, including the seed giants, to patent genes

more broadly, including germplasm. Genes,

whether in plants or humans, are products of

nature, and as the carriers of DNA, genes also lit-

erally embody laws of nature. As such they are not

patentable subject matter; they are part of the com-

mon heritage and public domain and should be

protected in the public trust.

CFS, on behalf of a coalition of environmental and

public interest organizations, filed briefs in support

of the plaintiffs at each stage—district court, Federal

Circuit, and the Supreme Court (see www.center

forfoodsafety.org).

| 35

H A P T E R F O U R

POLICY OPTIONS:

REFORMING THE CURRENT SEED

AND PLANT PATENT REGIME

he actions and inactions of United States

legislators, regulators, and courts have

allowed, and often encouraged, seed

giants’ use of patent law as a weapon

against the American farmer. And, as discussed in

this report, patent law is a significant contributor

toward increased seed market concentration, rising

seed prices, reduced seed innovation, suppression

of independent scientific research, and environ-

mental harms.

Governmental activities that have helped trigger

the persecution of U.S. farmers by these companies

include, but are not limited to: U.S. Courts, including

the Supreme Court, allowing the United States

Patent and Trademark Office (USPTO) to grant

utility patent protection to GE, or transgenic, crops

(and other sexually reproducing plants, i.e., seeds);

federal and state regulators failing to appropriately

regulate the environmental impacts of GE crops,

resulting in the indiscriminate spread of patented

transgenic seeds and genes; local and state officials’

failure to intervene to halt Monsanto’s use of hyper-

aggressive and often illegal investigations of purported

violations of its seed patents; and the U.S. courts’

failure to invalidate Monsanto’s exploitative con-

tracts with farmers who use its patented seed.

There is a growing movement to reverse and

reform governmental policies contributing to the

numerous adverse socio-economic and environ-

mental impacts of the present seed patent regime

and the harassment, investigation, and prosecution

of U.S. farmers. The following is a summary

36 |

C H A P T E R F O U R

Seed giants can obtain two kinds of intellectual

property protection for its GE seeds. As discussed

in Chapter One, it can and has obtained utility

patents on its GE seeds from the USPTO. These

utility patents provide the company with monop-

oly-like control of its seed and exclude all others

from any possession, use, or sale of the seed unless

approved by the patent holder. Seed corporations

can receive additional protection for their GE seed

by obtaining a Certificate of Protection from the

USDA under the PVPA.

The PVPA was enacted in 1970 and provides

developers of new plant varieties with patent-like

protection for their novel varieties. The owner of a

U.S. Certificate of Protection for a seed or plant vari-

ety has exclusive rights to multiply and market the

seed of that variety for a term of 20 years. Unlike

a utility patent protection, however, there are exemp-

tions under the PVPA that allow some use of the

protected variety. Most importantly for farmers, the

PVPA creates a right to save seed for replanting; it

also allows scientists to conduct critical research.

With respect to transgenic crops, arguably, GE

crops are entitled to neither a utility patent nor a

Certificate of Protection because Congress has

never affirmed the USPTO’s granting of utility

patents on plants, nor were GE varieties even in

existence when the PVPA was passed in 1970.

Some have argued that given the genetic instability

and tendency of gene-altered seeds to mutate, any

form of patent or PVPA protection for such seeds

is scientifically suspect and legally unsound. Others

note that because agrichemical companies cannot

control the spread of proprietary seeds or the

altered genes in these seeds, any granting of pro-

tection of these seeds or their genetic contents will

inevitably lead to numerous innocent parties being

subject to patent or PVPA enforcement. Over time,

any and every farmer of a given crop may have his

or her crop polluted with the GE variety of that

crop, leading to a legally chaotic scenario where

virtually every farmer in the United States is an

infringer of the plant protections for GE crops.

The Patent Act and the PVPA are federal legisla-

tion; therefore, amending them to remove

protection for transgenic varieties and sexually

reproducing plants would require action by Con-

gress. Additionally, the judicial interpretation of

what genetic material qualifies as patentable subject

matter and what are instead products of nature

and/or laws of nature, and thus not patentable, may

be impacted by the upcoming Supreme Court

decision in Association for Molecular Pathology v. Myr-

iad Genetics, Inc. While the Court is unlikely to

discuss patents on transgenic plants, it will address

patents on “isolated” genes, DNA, and comple-

mentary DNA (cDNA), and many agricultural

biotechnology entities have such patents.

PROS: The advantage of this option for farmers

is that it would eliminate all legislative basis for

their prosecution by seed companies for patent

infringement or PVPA violation.

CONS: The disadvantages of this approach are

practical. Given the lobbying power of the agricul-

tural biotechnology industry, it is extremely

unlikely that Congress would take such action in

the foreseeable future.

overview of selected policy options that could be

utilized to defend farmers and ensure that seeds—

the first link in our food chain—remain accessible

as part of the public domain. Some of them could

be affected by the outcomes of the three pending

cases discussed in this report.

AMEND THE PATENT ACT SO THAT SEXUALLY REPRODUCING PLANTS ARE NOT

PATENTABLE SUBJECT MATTER AND AMEND THE PLANT VARIETY PROTECTION

ACT (PVPA) TO EXCLUDE SUCH PLANTS FROM PROTECTION UNDER THE PVPA.

| 37

P O L I C Y O P T I O N S : R E F O R M I N G T H E C U R R E N T S E E D A N D P L A N T P A T E N T R E G I M E

A less dramatic legislative option than stripping

transgenic and other seeds from all plant protection

would be for Congress to amend the Patent Act to

exclude sexually reproducing plants, including GE

seeds, as patentable subject matter, but to continue

to allow engineered plants protection under the

PVPA. This would provide the biotech companies

with a continued monopoly on the sale of these

crop varieties, but under the PVPA, an exemption

would allow farmers to save seeds for replanting.

PROS: This option requires Congress to amend

just one statute—the Patent Act—rather than both

the Patent Act and the PVPA as required for the

first option, meaning one less legislative hurdle. As

noted, this option would result in farmers being

able to save and replant proprietary seed without

fear of prosecution.

CONS: Amending the Patent Act would not free

farmers from enforcement of, and prosecution

under, the PVPA. For example, farmers may still be

prosecuted even if protected seed varieties inad-

vertently pollute their crop. Additionally, even

though less controversial than stripping transgenic

seeds of all intellectual property protection, Con-

gress, under pressure from the agricultural seed

industry, may well be reluctant to amend the Patent

Act to favor a farmer’s right to save seed over the

profit interest of corporations.

AUTHORIZE THE PLANT VARIETY PROTECTION ACT (PVPA) AS

THE EXCLUSIVE MEANS OF SECURING INTELLECTUAL PROPERTY

PROTECTION OVER SEXUALLY REPRODUCING PLANTS.

Another option would be to amend the Patent Act

so that patent rights are exhausted by the first

authorized sale and so that reproducing seeds

through the normal course of farming does not

violate the Patent Act by improperly “making” a

patented product. These are essentially the two

issues the Court could decide in Bowman v. Mon-

santo (see Chapter Three).

PROS: A judicial interpretation or statutory

amendment providing that seed patent rights

exhaust, or end, after the first authorized sale would

release farmers from onerous patent prosecution

for seed saving or from contamination. Patent pros-

ecution carries with it the specter of treble

damages, oftentimes a strong incentive to settle,

regardless of the merits of a case. Patent exhaustion

after the first authorized sale would mean that once

farmers purchased seed from a licensed dealer, the

patent holder could not use patent law to place

conditions on its use, such as forbidding seed saving.

A court decision or amendment to patent law

establishing that when a farmer through normal

farming practices produces seeds, he or she is not

improperly “making” a patented invention would

have a similar beneficial impact. It would protect

farmers from patent prosecution for the next gen-

erations of seed they produce from a patented

variety. Such a court ruling or amendment would

recognize the logical fact that farming is not

genetic engineering and that it is not an illegal act

when seeds self-reproduce.

CONS: As with the other Congressional options,

passing a statutory amendment is seemingly very

AMEND THE PATENT ACT, AND/OR HAVE A COURT DECIDE:

1) PATENT RIGHTS EXHAUST AFTER THE FIRST AUTHORIZED SALE; AND

2) FARMERS CANNOT BE SUED FOR NATURALLY REPRODUCING SEEDS

FROM A PATENTED VARIETY.

38 |

C H A P T E R F O U R

Section 271 of the Patent Act defines what consti-

tutes infringement of a patent. This can include

exemptions from the usual prohibition of posses-

sion, use, and sale of a patented invention.

This

policy option would involve amending Section

271 so as to limit the scope of infringement of

patents on a seed. Specifically, this would involve

excluding the saving of GE seed and/or the inad-

vertent possession, use, or sale of such seed from

the scope of patent infringement.

Judicial language on the patenting of a chemical

compound gives some support to this policy

option. In a concurring opinion in SmithKline

Beecham Corp. v. Apotex Corp., 365 F.3d 1306 (Fed.

Cir. 2004), one federal court of appeals jurist

opined that the biological spread of a patented

plant onto the fields of a non-adopting farmer

could not lead to patent infringement:

Consider, for example, what might happen if

the wind blew fertile, genetically modified blue

corn protected by a patent, from the field of a

single farmer into neighboring cornfields. The

harvest from those fields would soon contain at

least some patented blue corn mixed in with

the traditional public domain yellow corn,

thereby infringing the patent. The wind would

continue to blow, and the patented crops would

spread throughout the continent, thereby turn-

ing most (if not all) North American corn

farmers into unintentional, yet inevitable,

infringers. The implication that the patent

owner would be entitled to collect royalties

from every farmer whose cornfields contained

even a few patented blue stalks, cannot possibly

be correct.

This decision suggests that the federal courts may

also be a viable option for at least establishing the

principle that transgenic pollution cannot be con-

sidered a legal cause of action for an infringement

action on an engineered seed patent.

Moreover, this subject is also the crux of the

OSGATA et al. v. Monsanto Co. litigation, seeking

relief such that patented germplasm, as applied in

the unintended contamination context, cannot be

grounds for patent infringement. A successful out-

come to that litigation, or other subsequent

litigation similar to it, could establish the same

result as amending Section 271.

PROS:This approach is not as intrusive as remov-

ing all patent protection from GE crops and

therefore may be more acceptable to Congress. As

discussed above and illustrated by the OSGATA

case, the courts might be a more practical and effi-

cient vehicle than Congress for establishing that

transgenic pollution cannot be patent infringement.

This option would result in conventional and organic

farmers being able to save seed without fear of

prosecution and without fear that being contami-

nated will turn them into patent infringers.

CONS:To the extent that this approach continues

to rely on Congressional action against the interest

of agricultural biotechnology companies, there will

almost certainly be continued strong resistance

unlikely in the current political climate. Therefore,

the best chance for this policy option is a favorable

decision in the Bowman case. Additionally, even if

through legislation or a favorable Supreme Court

judicial decision patent protections were curtailed,

corporation patent holders could still control seed

use through contracts that farmers must sign upon

purchasing seeds.

AMEND THE PATENT ACT SO THAT SEED SAVING AND/OR INADVERTENT

POSSESSION, USE, OR SALE OF SEEDS IS NOT CONSIDERED INFRINGEMENT.

| 39

P O L I C Y O P T I O N S : R E F O R M I N G T H E C U R R E N T S E E D A N D P L A N T P A T E N T R E G I M E

from this industry’s allies in Congress. As the

OSGATA case shows, any successful route through

the courts is inherently uncertain. As a more fun-

damental matter, for some farmers and others this

approach will be untenable because it requires the

acceptance of the patenting of seeds. Furthermore,

a narrow approach that only exempted uninten-

tional contamination from infringement, while

important, would not ameliorate the broader

harms such as the inability to save patented seed

or the restriction of independent research the way

the first two options would.

As this report describes, it is the nature of seeds to

travel via pollen flow or through seed movement

via animals or equipment. As noted earlier, Mon-

santo’s Technology Use Guide recognizes this fact

of nature by stating that “[i]t is generally recognized

in the industry that a certain amount of incidental,

trace level pollen movement occurs, and it is not

possible to achieve 100 percent purity of seed or

grain in any crop production system.”

Such pollen

flow and seed movement presents a direct economic

threat to farmers growing non-genetically engi-

neered and organic products, as well as irreparable

harm in the form of lost markets, reputation, and

the loss of the fundamental right to sow the crop

of their choice. Nonetheless, seed giants explicitly

attempt to shift the liability for such contamination

away from themselves and onto the farmer whose

field has been contaminated.

Federal and state policymakers have begun to

address this inequitable situation through the draft-

ing of legislation that will hold seed companies

liable for the spread of their patented genetic tech-

nology through pollen dispersal, seed contamination,

or other means—or at a minimum, protect con-

taminated farmers from any liability.

For example, Indiana, Maine, and California have

each passed “Farmer Protection Acts,” which, among

other provisions, provide farmers some protection

from unintended transgenic contamination.

Under

these laws, if the presence of the proprietary prod-

uct is not intended by the farmer, then he or she

cannot be held liable for breach of a seed contract.

PROS: Such legislation, at the federal and partic-

ularly on the state level, may have a good possibility

of success. This type of legislation would ensure

that farmers are not punished for the inherent pol-

luting nature of transgenic seeds and also reinforce

the recourse of contaminated farmers who, instead

of being sued by Monsanto for patent infringe-

ment, can take legal action against the company for

any losses caused by this contamination.

CONS: This legislation, whether passed at the

federal or state level, does not limit the intellectual

property protections of the seed giants, which could

still prosecute farmers for seed saving and for inad-

vertently having the patented seed on their property.

LEGISLATE TO PREVENT SEED GIANTS

FROM SHIFTING LIABILITY ONTO THE FARMER.

As discussed in this publication, numerous farmers

have been the subject of harassment and overzeal-

ous investigations by seed giants. States can act to

curb such behavior and ensure that farmers

accused of infringing patents have some equitable

recourse, and several have so acted. Five states—

California, Indiana, Maine, North Dakota, and

South Dakota—have passed legislation to protect

ADOPT EXISTING STATE MODELS FOR CONTROLLING INTRUSIVE

AND AGGRESSIVE PATENT INFRINGEMENT INVESTIGATIONS OF FARMERS.

40 |

C H A P T E R F O U R

Seed contracts usually stipulate that patent infringe-

ment cases be tried in the home state of the patent

holder, meaning farmers defending themselves in

these cases face expensive travel costs and legal

expenses and have an inherent disadvantage of lit-

igating a case on the company’s home turf. For

example, Monsanto’s technology agreement provides

terms that place farmers at a distinct disadvantage

should they be sued for breach of the agreement or

patent infringement. The agreement mandates that

the sole and exclusive jurisdiction and venue for all

disputes, except those involving cotton, go to the

farmers from aggressive legal pursuits by seed cor-

porations.

Most significantly, several state farmer

protection laws prevent plant patent holders from

entering and taking crop samples from a farmer’s

land without meeting a number of conditions. In

addition, the farmer may accompany the patent

holder as samples are taken and may also request

the presence of the state department of agriculture.

These procedural protections are important because

they deter patent holders from engaging in unlaw-

ful activities.

For example, in 2003, Indiana passed a bill that

provides that a seed contract gives no rights to a

seed supplier to enter a farmer’s property to take

samples of crops grown from seeds or other plants

growing on the farmer’s property unless a number

of important conditions are met, such as written

notice.

North Dakota requires the patent holder

to obtain a farmer’s permission to enter his prop-

erty and take samples.

Under these laws, a seed

contract gives no rights to a seed supplier to enter

a farmer’s property to take samples of crops grown

from seeds or other plants growing on the farmer’s

property unless the patent holder follows impor-

tant procedures.

Moreover, if a seed company

receives a court order to access a farmer’s land to

take samples, the order must allow the farmer to

have independent, matching, or split samples taken.

Farmers can use these independent samples to

conduct their own tests. This open and honest

process has put a stop to the heretofore one-sided

nature of the evidence presented in cases previ-

ously filed by patent holders against farmers (doc-

umented in Chapter Three of this report).

Notably, these bills have been effective deterrents

against lawsuits in these states. In South Dakota,

seed companies have filed only one lawsuit since

the enactment of its 2002 law. The same is true in

North Dakota. In contrast, in Missouri, a state

without a farmer protection law, Monsanto has

filed 19 lawsuits against farmers. In neighboring

Illinois, Monsanto has filed 14 lawsuits, more than

the total suits filed in the states with farmer pro-

tection laws.

PROS: As demonstrated by the success in Cali-

fornia, Indiana, Maine, North Dakota, and South

Dakota, these bills can be popular with state legis-

latures. These laws offer farmers some protection

against the harassing and/or illegal methods of

investigation by patent holders, the potential falsi-

fying of test results, and liability for unintended

contamination.

CONS:These laws do nothing to limit seed com-

panies’ patent and intellectual property rights.

Further, there is a danger that legislatures might

look to these bills as an easy way to sidestep their

obligations resulting from transgenic contamina-

tion caused by GE crops and also not address

broader issues, such as the fundamental right of

farmers to save their seed and the socio-economic

and environmental concerns highlighted in this

report.

LEVEL THE COURTROOM PLAYING FIELD BY

NEGATING SEED INDUSTRY FORUM SELECTION CLAUSE.

| 41

P O L I C Y O P T I O N S : R E F O R M I N G T H E C U R R E N T S E E D A N D P L A N T P A T E N T R E G I M E

As previously noted, most federal, state, and local

governments have yet to appropriately regulate

transgenic crops in a manner that prevents the eco-

nomic and environmental consequences caused by

their ubiquitous spread. A federal ban or morato-

rium on the planting of GE crops would eliminate

the use of the patented technology and therefore

make persecution of farmers impossible. Less

expansive than national action would be bans or

moratoria at the state and/or local level.

Several counties and cities in California, Hawaii,

Washington, and Maine have already adopted bal-

lot measures or county supervisor resolutions to

ban the growing of GE crops in their counties. As

of the publication of this report, Santa Cruz, Men-

docino, Marin, and Trinity counties and the City

of Santa Cruz in California, Hawaii and Maui

counties in Hawaii, San Juan County in Washing-

ton, and the Town of Montville in Maine have

passed such initiatives and resolutions.

In these

cities and counties, it is unlawful for any person to

propagate, cultivate, raise, or grow GE crops. Sev-

eral other counties are currently in the process of

proposing bans, and these efforts seem to be gain-

ing momentum.

PROS: Local and county bans have a track record

of being more politically achievable than state or

federal bans. All such measures offer significant pro-

tection for farmers in the geographic area

encompassed by the ban or moratorium from

transgenic contamination by GE crops and the

attendant risk of being prosecuted by seed compa-

nies for patent infringement.

CONS: It is extremely unlikely that Congress

would ever legislate a national ban or moratorium.

State bans are more feasible but still very unlikely.

County-wide bans are very viable, but the limited

geographic scope of these bans makes for limited

protection for most of the nation’s farmers unless

such bans become more widespread.

U.S. District Court for the Eastern District of Mis-

souri, Monsanto’s hometown. This means a farmer

sued in states outside of Missouri not only has the

David and Goliath battle against Monsanto’s attor-

neys, but also must find a lawyer in Missouri and

travel there to fight out the legal battle.

Both Indiana and Maine have passed legislation

that alleviates this hardship and inequity. Indiana’s

law mandates that if a seed company files a lawsuit

against a farmer for violating the terms of a seed

contract, the court action must be filed in Indiana,

as the laws of Indiana govern a seed contract. In

Maine, an infringement case brought against a

grower who does not have a current contract with

a seed company must be brought in a venue where

the farmer resides.

PROS: Laws such as Indiana’s ensure that farmers

being prosecuted are not required to defend them-

selves in, and under the laws of, another state.

CONS: These laws, while providing some proce-

dural protection, still do little to limit the patent

holders’ intellectual property rights. Again, there is

a risk that legislators may opt for limited laws such

as these rather than stringently regulate liability

limits in their states.

PASS FEDERAL, STATE, AND LOCAL INITIATIVES INSTITUTING A BAN OR

MORATORIUM ON THE GROWING OF GENETICALLY ENGINEERED CROPS.

42 |

ENDNOTES

Center for Food Safety, Monsanto vs. U.S. Farmers (Washington, DC: Center for

Food Safety, 2005), 5. http://www.centerforfoodsafety.org/pubs/CFSMOnsan

tovsFarmerReport1.13.05.pdf

George Washington, “Letter to farm manager William Pearce” (November 16,

1794).

ETC Group, Who will control the Green Economy? (Ottowa: ETC Group, Decem-

ber 2011), 22.

http://www.etcgroup.org/sites/www.etcgroup.org/files/publication/pdf_file/ET

C_wwctge_4web_Dec2011.pdf

Ibid, 22.

Kristina Hubbard, Out of Hand: Farmers Face the Consequences of a Consolidated

Seed Industry (Washington, DC: National Family Farm Coalition, December

2009): 41. http://farmertofarmercampaign.com/Out%20of%20Hand.FullRe

port.pdf.

For the following discussion, see: Jack Ralph Kloppenburg, First the Seed: The

Political Economy of Plant Biotechnology, 2

edition (University of Wisconsin Press,

2004), 55ff.

Debbie Barker, History of Seed in the U.S.: The Untold American Revolution (Wash-

ington, DC: Center for Food Safety, August 2012), 2.

Kloppenburg, First the Seed, 78, 97ff.

Jorge Fernandez-Cornejo, “The Seed Industry in U.S. Agriculture,” USDA Eco-

nomic Research Service, Agriculture Information Bulletin 786 (2004): Tables 17 & 21,

36 & 40. http://www.ers.usda.gov/publications/aib-agricultural-information-

bulletin/aib786.aspx

Kloppenburg, First the Seed, 82.

Fernandez-Cornejo, “The Seed Industry in U.S. Agriculture,” 25.

Ibid, 25-26. There has also been some success in hybridizing vegetables, such as

onion, tomatoes, broccoli, cabbage, melons and spinach.

Ibid, 25, 30.

Kloppenburg, First the Seed, 132.

Ibid, 132-133.

Fernandez-Cornejo, “The Seed Industry in U.S. Agriculture,” 20-21.

See 7 USC § 2543 (“[I]t shall not infringe any right hereunder for a person to

save seed produced by the person from seed obtained, or descended from seed

obtained, by authority of the owner of the variety for seeding purposes and use

such saved seed in the production of a crop for use on the farm of the person ...”);

See 7 U.S.C. § 2544 (“The use and reproduction of a protected variety for plant

breeding or other bona fide research shall not constitute an infringement of the

protection provided under this chapter”). The utility patent statute does not con-

tain similar exemptions.

447 U.S. 303 (1980).

See, e.g., Harvard Coll. v. Can. (Com. of Patents), [2002] 4 S.C.R. 45, 2002 SCC

76 (Can.) (distinguishing Chakrabarty and holding that a transgenic mouse was

not patentable subject matter).

Bd. Pat. App. & Interferences, 227 U.S.P.Q. 443 (1985).

See J.E.M. Ag Supply, 534 U.S. at 127. In J.E.M. Ag Supply, the petitioner

argued that utility patents could not be issued for plants because the Plant Variety

Protection Act, 7 U.S.C.A. § 2321 (for sexually reproducing plants like corn and

soybeans) and the Plant Patent Act, 35 U.S.C.A. §161 (for plants reproducing

asexually, e.g., through grafting) were the exclusive federal statutory tools for

acquiring patent-like protection for plants. The Supreme Court disagreed and

held that utility patents could be issued for plants. J.E.M. Ag Supply, 534 U.S. at

145.

J.E.M. Ag Supply, Inc. v. Pioneer Hi-Bred International, Inc., 122 S. Ct. 593,

596 (2001).

Philip H. Howard, “Visualizing Consolidation in the Global Seed Industry:

1996-2008,” Sustainability 1 (2009): 1266-1287.

Hubbard, Out of Hand; Howard, “Visualizing Consolidation in the Global Seed

Industry: 1996-2008.”

Wayne Peng, “GM Crop Cultivation Surges, But Novel Traits Languish,” Nature

Biotechnology 29 (2011): 302.

http://www.nature.com/nbt/journal/v29/n4/box/nbt.1842_BX5.html

ETC Group, Who will control the Green Economy?, 22.

Ibid.

Center for Food Safety, Monsanto vs. U.S. Farmers 2012 Update (Washington,

DC: Center for Food Safety, 2012), 1. http://www.centerforfoodsafety.org/wp-

content/uploads/2012/11/Monsanto-v-US-Farmer-2012-Update-final.pdf

Oral Argument at 13:50-14:44, OSGATA et al. v. Monsanto Co., (Appeal No.

2012-1298), available at

http://oralarguments.cafc.uscourts.gov/default.aspx?fl=2012-1298.mp3

Center for Food Safety, Monsanto vs. U.S. Farmers 2012 Update, 1.

Jack Kaskey, “DuPont Sends in Former Cops to Enforce Seed Patents: Com-

modities,” Bloomberg, November 28, 2012.

EXECUTIVE SUMMARY

| 43

ETC Group, Who will control the Green Economy? (Ottowa: ETC Group, Decem-

ber 2011), 22.

http://www.etcgroup.org/sites/www.etcgroup.org/files/publication/pdf_file/ET

C_wwctge_4web_Dec2011.pdf

Ibid, 22.

Kristina Hubbard, Out of Hand: Farmers Face the Consequences of a Consolidated

Seed Industry (Washington, DC: National Family Farm Coalition, December

2009): 41. http://farmertofarmercampaign.com/Out%20of%20Hand.FullRe

port.pdf

For the following discussion, see: Jack Ralph Kloppenburg, First the Seed: The

Political Economy of Plant Biotechnology, 2

edition (University of Wisconsin Press,

2004), 55ff.

Debbie Barker, History of Seed in the U.S.: The Untold American Revolution (Wash-

ington, DC: Center for Food Safety, August 2012), 2.

Kloppenburg, First the Seed, 78, 97ff.

Jorge Fernandez-Cornejo, “The Seed Industry in U.S. Agriculture,” USDA Eco-

nomic Research Service, Agriculture Information Bulletin 786 (2004): Tables 17 & 21,

36 & 40. http://www.ers.usda.gov/publications/aib-agricultural-information-

bulletin/aib786.aspx

Kloppenburg, First the Seed, 82.

Fernandez-Cornejo, “The Seed Industry in U.S. Agriculture,” 25.

Ibid, 25-26. There has also been some success in hybridizing vegetables, such as

onion, tomatoes, broccoli, cabbage, melons and spinach.

Ibid, 25, 30.

U.S. Patent and Trademark Office, “Press Release, 02-06: The U.S. Patent Sys-

tem Celebrates 212 Years,” USPTO, April 9, 2002.

http://www.uspto.gov/news/pr/2002/02-26.jsp