Expert response from Gregory Conko
Former Senior Fellow at the Competitive Enterprise Institute
Friday, 12/13/2013 12:59
Critics of biotechnology often ask: If genetic engineering is simply one of many tools for modifying plants at the genetic level and not fundamentally different from other breeding methods, why can new biotech varieties be patented? The short answer is: Any new plant variety with a unique combination of traits can be patented, no matter what breeding method is used to develop it. In fact, many more non-genetically engineered plant varieties have been patented than genetically engineered ones.
The United States Supreme Court confirmed in the landmark 2001 case, J.E.M. Ag Supply v. Pioneer Hi-Bred, that newly developed plant breeds could be patented. And the patented corn varieties at issue in that case were developed solely with simple hybridization: the mating of one corn plant with another. In short, the patenting of biotech plant varieties does not make them different from conventionally developed varieties, it makes them the same.
Urban legends also claim that biotech seed companies troll the country, suing farmers for patent infringement when their crops have been accidentally cross pollinated by a neighbor’s genetically engineered plants. But not a single known case of this has actually occurred. The myth is spread by misrepresenting cases, such as that of Canadian farmer Percy Schmeiser, who claimed he was sued when patented Roundup Ready canola plants were discovered on his farm. But the Canadian court that heard his case concluded that Schmeiser had intentionally planted canola seeds containing the patented Roundup Ready gene and was not merely a victim of unintended cross pollination.
In 2011, the Organic Seed Growers & Trade Association and several other organizations filed a lawsuit seeking a judgment that farmers should not be liable when patented biotech plants are found unintentionally growing in their fields. But the plaintiffs could offer not a single example of a case where this had actually occurred, so the court dismissed the lawsuit on the grounds that there was no dispute to be resolved. The court explicitly held that every lawsuit the trade association offered as evidence of the biotech company’s bad behavior involved a farmer who had intentionally planted patented seeds. It further concluded that the trade association’s demand “seems to have been nothing more than an attempt to create a controversy where none exists.”
Biotechnology critics thrive on misinformation and out-of-context claims. The myth that patenting of biotech crops proves that genetic engineering is fundamentally different from more conventional breeding methods is simply that: a myth. Whatever one’s view of patents, or of intellectual property more generally, the fact is, many thousands of plant varieties developed with both conventional and genetic engineering techniques have been patented. So, intellectual property protection for biotech plants makes them no different from any other varieties.
J.E.M. Ag Supply, Inc. v. Pioneer Hi-Bred International, Inc., 534 U.S. 124 (2001), http://www.law.cornell.edu/supct/html/99-1996.ZS.html.
Monsanto Canada Inc. v. Schmeiser, 2001 FCT 256 (CanLII), http://www.canlii.org/en/ca/fct/doc/2001/2001fct256/2001fct256.html.
Organic Seed Growers and Trade v. Monsanto Company, 851 F. Supp. 2d 544 (S.D.N.Y. 2012), http://www.osgata.org/wp-content/uploads/2011/03/OSGATA-v-Monsanto-MTD-Decision.pdf.
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