Payday for US Plant Scientists

A Dec. 10 ruling from the US Supreme Court that validates patents on genetically engineered plants re-ignited the debate over the politics of property rights in the life sciences. In a case involving the leading seed-corn producer, Pioneer Hi-Bred International Inc. of Des Moines, Iowa, the Court endorsed the US Patent and Trademark Office's 1985 decision to issue broad utility patents on plants.1 The patent office based its decision on earlier rulings that "anything under the sun made by man" is patentable.2 But until the Court ruled on the Pioneer case, no one could be certain that genetically altered plant patents would stand up. Decades of development in plant genomics were riding on the decision, the results of which translate into more research dollars for plant scientists. The ruling means the products of their laboratories can claim as much as 20 years of monopolistic protection under US patent law. Had the case gone the other way, plant genomics research may have withered as investors halted funding because they could not protect their profits. Patenting Life In 1980, the Court approved patents on manmade microbes, making it clear that living things could be patented. Some lawyers still argued that plants, as products of nature, could not. But patents were issued that protected the living results of agricultural research, and private-funding sources opened their wallets in support of these laboratory scientists. Courtesy of Jeff KushanJeff Kushan "This issue was decided 20-some years ago, and the impact can be measured in what has happened in plant breeding over the past couple of decades," says Jeff Kushan, a partner in the law firm of Powell Goldstein Frazer Murphy in Washington, DC, which filed an amicus brief backing plant patents on behalf of the US Biotechnology Industry Organization. The impact, he says, is that companies such as Pioneer, which engage in agricultural genomics research, have expanded classic plant-breeding practices to incorporate wider knowledge of gene function. Investments in technology allow researchers to select and combine specific genes to tailor-make new hybrids and varieties. Some observers of the global debate over genetically modified foods say the ruling emphasizes how distant the United States is from the rest of the world when staking out property claims on living things. Outside the United States, opponents to genetic engineering are gaining strength. One day after the Pioneer decision issued, Greenpeace led a coalition of Mexican environmental and farm groups in filing a formal complaint seeking to ban the import of genetically engineered corn from the United States. "We see [the Pioneer ruling] as a defeat for the international struggle to challenge the ethics of patents on life," says Anuradha Mittal, co-founder of the California-based Institute for Food and Development Policy. "Patents create a monopoly that threatens food security and the livelihood of farmers," Mittal says. "Chemical corporations have gone into the business of buying up seed companies because that's the first link in the food chain. Whoever controls the seed controls the world's food supply." The Supreme Court's decision allows Pioneer to enforce its corn-seed patents against rivals in the global market, including J.E.M. AG Supply. The 17 utility patents at issue in the case represent a fraction of the 1,700 patents on plants or plant components jeopardized by J.E.M.'s argument that plants could not be patented. The International Debate The US ruling does not apply to the European Union, which operates partly under an advisory to member nations called the Biotech Patent Directive.3 "Essentially, you can't get a patent for a plant variety, but you can get a patent for a genetically modified plant, a transgenic plant, provided that it is not something that in itself is a variety," explains Andrew Sheard, a Hertfordshire patent attorney who heads the intellectual property advisory committee of the BioIndustry Association, a UK trade group. "If your invention is, generally speaking, something broader than a variety—let's say a tomato plant that has a gene that allows fruit to ripen earlier—it may be patentable, provided the other conditions are met." The specific situation presented by Pioneer Hy-Bred's plants may be a murky area in Europe. The plants Pioneer patented were developed through classical genetic breeding and are not, strictly speaking, "genetically modified organisms," says Herb Jervis, the firm's vice president and chief patent counsel. But Pioneer's breeding techniques involve genomics research and development on which it spends from $250 million to $300 million annually, notes Jervis. European legal circles still debate the fine meaning of terms such as genetically engineered and transgenic plants. Biotechnology industry officials in the United States and Europe say that some form of legal protection is necessary to support research, however. No patents, no payday, as they see it. Foes say farmers have done agricultural research without patents since time immemorial, creating the germ plasm used in laboratories today. "They call it intellectual property," Mittal says. "We call it intellectual piracy." Peg Brickley (pegbrickley@hotmail.com) is a freelance writer in Philadelphia. References 1. J.E.M. AG Supply Inc. v. Pioneer Hi-Bred International Inc., No. 99-1996 U.S. Supreme Court, Dec. 10, 2001. 2. Diamond v. Chakrabarty, 447 US 303 (1980). 3. Directive 98/44/EC of the European Parliament and of the Council of 6 July 1998 on the legal protection of biotechnological inventions, Official Journal L213, 30/07/1998 p. 0013.

Payday for US Plant Scientists

Interested in reading more?

Become a Member of