The history of patent in agriculture

Patenting living organisms

Patenting DNA sequences

(modified from: Nina V. Fedoroff and Nancy Marie Brown - Mendel in the kitchen - The National Academies Press, 2004)

The meaning of patent

Some of the GMO (i.e.: virus-resistant plants), as well as the technique used to make them, are patented. Patents are widely misunderstood as ownership of an idea or an invention. Yet to get a patent the inventor must make public enough information that someone “skilled in the art” can reproduce the invention (if given a license or other legal right to do so by the patent owner). A patent merely lets the inventor prevent others from using the idea without permission for a limited period of time, usually 17 to 20 years. It is easier to own, to control, an idea if it is kept secret and not patented.

Patents are meant to encourage creativity by letting the inventor get a head start on making a profit. But they are also intended to further scientific progress. Before a company or a scientist patent a discover, it is a closely held trade secret. Once patented, it will be available to researchers around the world, sometimes free, sometimes for a licensing fee, depending on whether the researcher is at a university or other research institute or in a company.

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The history of patent in agriculture

The patent system has been affecting western agriculture since at least 1750. After this time, according to historian Mauro Ambrosoli, “every new invention concerning agricultural machinery was jealously defended with patents.” In America by 1836 the head of the U.S. Patent Office, Henry Ellsworth, believed it was his responsibility to encourage the introduction of new plant varieties along with the invention of new machines. The idea that plants themselves could be patented grew stronger in the 1870s, when Louis Pasteur, the inventor of milk pasteurization, attempted to patent a type of yeast. Luther Burbank (the plant breeder known as the wizard of horticulture, the creator of the Idaho potato and Shasta daisy) was among those who argued at the time that if a yeast could be patented so could a plum or a potato. Yet, as his biographer, Peter Dreyer, notes, “The degree to which cultivated plants were human creations was not generally recognized in those days.” No one thought of a potato as intellectual property.

It was Burbank’s posthumous testimony that led to the passage of the first bill in the United States to include plant breeders among the ranks of inventors. In a letter written to Paul Stark shortly before his death he wrote:

A man can patent a mouse trap or copyright a nasty song, but if he gives to the world a new fruit that will add millions to the value of earth’s annual harvests he will be fortunate if he is rewarded by so much as having his name connected with the result. Though the surface of plant experimentation has thus far been only scratched and there is so much immeasurably important work waiting to be done in this line I would hesitate to advise a young man, no matter how gifted or devoted, to adopt plant breeding as a life work until America takes some action to protect his unquestioned rights to some benefit from his achievements.

The Plant Protection Act of 1930 covered cultivated plant varieties, whether they had been developed by a breeder like Burbank, or discovered in the field by a plant explorer, as long as they were reproduced asexually. Such a plant patent was intended to prevent anyone except the developer or discoverer from producing the variety for a number of years. The stricture that the plant had to be propagated asexually—through grafting, cuttings, runners, or the dividing of bulbs—arose from the need to preserve the distinctive characteristics of the variety, which sexual reproduction tended to disrupt.

Yet many sexually reproducing plant varieties do maintain their distinctiveness—growers say they breed true—and by the 1960s these were given patent-like protection in some European countries. After a number of unsuccessful attempts, the U.S. Congress did so as well, passing the Plant Variety Protection Act in 1970. To receive a plant patent, the plant variety must be uniform, stable, and distinct from other varieties. To encourage breeders to develop new varieties, the act set up a mechanism to provide exclusive marketing rights by certifying seed.

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Patenting living organisms

The 1970 act excluded fungi and bacteria. So when Ananda Chakrabarty, through his employer, General Electric, applied for a patent on a strain of bacteria that could efficiently degrade crude oil, his application was denied. Crude oil is a complex mixture of hydrocarbons. Several strains of the bacterium Pseudomonas putida were known to produce enzymes that degraded one or another of those hydrocarbons. But mixtures of strains that could eat different hydrocarbons weren’t very efficient when faced with the task of degrading crude oil. Some grew better than others. The overall efficiency of converting crude oil to bacterial biomass (which is 75 to 80 percent protein) wasn’t very good.

Chakrabarty discovered that the ability to degrade hydrocarbons was due to genes on plasmids that the bacterium carried. Different strains had different plasmids and so could degrade different hydrocarbons. Chakrabarty devised a way of combining the multiple plasmids in a single strain. Usually, similar plasmids can’t replicate in the same bacterium—they exclude each other—so Chakrabarty used ultraviolet radiation to fuse the multiple plasmids inside of bacterial cells, creating a strain with one large plasmid. It carried genes coding for enzymes that could degrade many different hydrocarbons, and it grew better on crude oil than did a mixture of strains, each carrying a single plasmid. Because Chakrabarty’s bacteria could be useful in cleaning up oil spills, General Electric decided to apply for a patent on the process of constructing bacteria with such fused plasmids, as well as on the organism itself.

The patent application was filed in June 1972. In late 1973 the U.S. Patent and Trademark Office issued its decision. It accepted the process claim, but did not grant a patent on the bacterium, which it said was a product of nature and therefore not patentable. General Electric’s patent attorney appealed the decision, arguing that Chakrabarty’s bacterium was not a product of nature; it had been changed by fusing incompatible plasmids. The appeal board acknowledged this argument, but still rejected the patent claim because it sought to patent a living organism.

General Electric appealed to the U.S. Court of Custom and Patent Appeals. In 1978 the court granted the patent. In its view, as long as a microorganism was useful, novel, and the product of human intervention, it merited patent protection. The decision that living organisms could be patented was appealed to the Supreme Court, which returned it to the Court of Custom and Patent Appeals, where it was reaffirmed. The court argued that patent law should apply to “anything under the sun that is made by man,” and that this included living organisms.

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Patenting DNA sequences

The Chakrabarty case changed how patent law was interpreted. Although Chakrabarty didn’t use molecular techniques in constructing his oil-eating bacteria, by the time the decision was final, most of the recombinant DNA techniques in use today had been invented. The first biotechnology companies had been started, and the first patent applications had been filed.

Based on the Chakrabarty precedent, the patent office board of appeals issued an administrative ruling in 1985 that plants could be patented without following the special provisions of the 1930 Plant Patent Act or the 1970 Plant Variety Protection Act. In 1987 the board ruled that a polyploid oyster, a multicellular animal, could be patented. In issuing this ruling, Donald Quigg, the assistant secretary and commissioner of patents and trademarks, explained that the patentability of living organisms required that “they must be given a new form, quality, properties, or combinations not present in the original article existing in nature.”

One consequence of patenting “anything under the sun that is made by man” is that nearly any DNA sequence can be patented. A cloned DNA sequence—although identical to the sequence in the organism from which it was derived—is not considered to be a “product of nature” because it required human intervention to clone it. Patents have therefore been issued on isolated bits of DNA. This practice is consistent with the longstanding one of issuing patents for chemical compounds purified from naturally occurring mixtures, but it continues to be problematic. For plant breeding, the patenting of DNA has two faces. On the positive side, it brings trade secrets out into the open. On the negative side, it creates an additional, time-consuming step between discovery and application [E1].

In USA: United States Patent and Trademark Office; in EU: European Patent Office [D1, E2, F1]; see also: Swedish Patent and Registrations Office

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