In March 2010, approximately 800 people gathered in Ankeny, Iowa, for a public event hosted by the Departments of Justice (DOJ) and Agriculture (USDA) on competition in agriculture. The meeting followed a flurry of 15,000 public comments on the topic of consolidation in the seed, livestock, dairy, poultry and food retail sectors.
At the event, a Missouri farmer stood up and said, “We’ve waited a long time for justice in the heartland. There were yelps and applause. The energy in the room seemed serious given the questions posed – for starters, who controls the seed market, the foundation of our food supply?
In total, the agencies held five such “workshops” across the United States that year. Farmers, ranchers, agricultural advocacy organizations, businesses and consumers came out in droves to listen and testify to their plight: skyrocketing input prices, fewer options in the market, as well as blatant production and licensing deals. The events were historic, lending confidence that change was on the horizon.
But the hope was short-lived. Public investment — in the form of taxpayers’ money, time, and courage — has yielded no meaningful action, especially in the seed trade, one of the most concentrated and privatized agricultural industries . In the decade that followed, market consolidation only got worse. Today, four transnational corporations control more than 60% of the global commercial seed market, a Concentration ratio which far exceeds the standard of healthy competition established by agricultural economists.
Now, With renewed attention to competition issues in the seed industry, American farmers are once again wondering if they should speak up to bring fairness back to their fields.
Three months ago, the The United States Department of Agriculture has launched an investigation seek public input on competition issues in the seed industry as they relate to intellectual property rights (IPRs). The agency examines the impacts on farmers, plant breeders, independent seed companies, tribal members and other historically underserved producers, as well as on society as a whole. This survey stems from President Biden’s Executive Order of July 2021 on promoting competition in the US economy. The comment deadline ends June 15.
That this investigation was initiated by the executive office is remarkable, but even more remarkable is the focus on seeds. A focused examination of the seed trade through a combined antitrust and IPR lens is long overdue, and we commend the administration for bringing this connection to light. Understanding the tension between antitrust laws and intellectual property laws is particularly relevant to seeds. While other agricultural sectors, such as agrochemicals and fertilizers, could also be described as an oligopoly, seed is unique among all other input markets: it is a living resource.
The seeds are not made in a factory but represent generations of natural evolution both in parallel and in the absence of human intervention. In this way, producers’ decisions about seeds are not only economic, but also ethical and cultural. The cultural heritage of our seed supply makes property claims through IPRs all the more cumbersome when considering the history of appropriation (stolen land and seeds), not to mention the original intent of the laws. on IPRs.
As the seed trade continues to consolidate, the diversity of seed in the market is diminishing. At the same time, the pool of plant genetics (“genetic material”) available to plant breeders is shrinking due to highly restrictive forms of IPRs, in particular utility patents granted under US patent law — “utility patents”. ‘invention’.
A single patent can cover the plant, the seed, future generations, genetic traits, crosses with other varieties and the methods used to produce it. Utility patent holders therefore have extensive control over access to and use of their protected seeds and generally restrict seed selection, research and saving – the very practice that has established the diversity of domesticated crops including we enjoy today. Hundreds of farmers have been sued for saving patented seeds, resulting in million dollar judgments and bankruptcy.
In other words, the entities that control much of the seed supply limit competition from angles that go beyond their grip on the retail market. You can’t compete in product development if you can’t access parts.
Meanwhile, the Biden administration and Congress have all the elements they need to effect meaningful policy change. Antitrust laws can be strengthened and more firmly enforced, while IPR laws and policies can return to their original intent of encouraging innovation, not market monopolization. Denying patents on products of nature is also essential.
In fact, Congress never intended to grant utility patents for plants. Congress has long argued that sexually propagated plants should not receive utility patents lest they limit innovation, threaten the free exchange of genetic resources, and increase market concentration. A 1966 congressional committee report confirms that while its members “recognize the valuable contribution of plant and seed breeders, it does not view the patent system as the appropriate vehicle for the protection of such subject matter”.
These conversations led to the passage of the Plant Variety Protection Act 1970 (PVP). A PVP certificate is not a patent but provides plant breeders with exclusive marketing rights for 20 years for their new varieties. Congress was very deliberate when it included two exemptions that protect competition and future innovation. The law requires that these varieties remain available for breeding purposes and protects a grower’s right to save PVP-protected seed for replanting on their own farm. The law served as a compromise between those who wanted full property rights to plant varieties and genetics and those who wanted all plant varieties to remain fully accessible without restrictions on breeding, cultivation, or distribution.
That all changed with a Supreme Court ruling in 1980, when a five-to-four decision allowed a patent on an “artificially constructed” microorganism. The effect of this decision (and others that followed) has been a Patent and Trademark Office that now considers certain products of nature to be sums of man-made parts, opening the door to patents on seeds, plants and genetic traits. Had the court respected Congress’ record on this, farmers would be operating in a very different seed system.
It’s not too late to change course. The Biden administration can line up and support American farmers who are still waiting for justice. There is an urgent need to restore equity in our seed laws and policies. The administration would be wise to go that route.
Kiki Hubbard is the Director of Advocacy and Communications for Organic Seed Alliance, working for organic seed systems that are democratic, while supporting human and environmental health.