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nafex - Re: [NAFEX] Moral and Legal Patent Quandries

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  • From: road's end farm <organic101@linkny.com>
  • To: breen@fedcoseeds.com, North American Fruit Explorers <nafex@lists.ibiblio.org>
  • Subject: Re: [NAFEX] Moral and Legal Patent Quandries
  • Date: Thu, 16 Feb 2006 11:28:15 -0500


On Feb 13, 2006, at 11:17 PM, Heron Breen wrote:

Here's a fictional example of another quandry: a wholesale nursery stock grower
who sells to various retail outlets is propagating maybe both ornamental and fruit
patented plants without permission. This grower is then selling these to retail
outlets, but with the retail outlets' full knowledge. Maybe these retail outlets
are also supplying the wholesale grower with patented propagation material so the
wholesaler can grow their requested cultivars in specific amounts. Neither
wholesaler or retailed in paying royalties. The retailers may also be hiding these
illegal sales within sales of plants of the same cultivars that they bought and
sold legitimately.

I've been reading with interest the replies to this post. I note that some of the replies, though they're addressing the situation in general, assume the situation in the excerpt above, which I would consider to be all the way on one end of the spectrum of possible difficulties with this issue: that is, a situation in which the retailers have willingly bought generally available patented material and paid the patent fee on some of the stock, but are then using this material to produce large quantities of the cultivar for sale; the intention being solely to dodge the patent for purposes of financial gain. Some of the posters are further considering the case as one in which the holder of the patent is a university research group that needs the money for further research, and/or an individual who has spent years of work developing the cultivar.

Now that I would say is theft plain and simple. If your friends are thieves, I don't know that in this case your first step would be required to be calling the cops; but I do think you should be thinking very hard about whether to continue to be friends with these people, and/or whether you should be warning them to cut it out or you will call the cops.

However, that's far from the only possible problem with patented material. Let me throw a few others at you (some of which have been mentioned by other posters, but some of which I haven't seen yet in this discussion):

1) The cultivar (seed or grafted plant) is not on the market, not being produced, and is going to disappear forever if not propagated.

2) The cultivar (as some here have noted) spreads itself: strawberries, brambles, wind or insect pollinated seed. Subset of this: the farmer saves seed routinely for following crops, and this seed has been contaminated by pollen from a patented variety.

3) Another possible scenario: the farmer generally saves seed, but a crop loss has made acquiring fresh seed necessary; the only cultivars available for purchase in the area have been patented. (If the crop loss is widespread, this is a perfectly possible scenario. In some years recently, for instance, availability of non-GMO, non-patented corn seed has been in very short supply in the US, because the large companies producing most of the country's seed corn produced mostly the patented seed.) In some places in the world, money is absolutely not available for most farmers to buy fresh seed every year. Even in places where many farmers can afford to buy the seed annually, some can't.

4) The patent was taken out on a cultivar that was not produced by the patent holder, but found by the holder: the cultivar is the result of many years or generations of the work of farmers/breeders who did not patent it, which work has effectively been stolen by the person/corporation that patented it.

5) The patent holder has made/bred/discovered a small actual genetic change in the cultivar, but is claiming a patent not only on that change, but on the entire genetics of the cultivar, or on the trait expressed even if bred into a plant by another route. (Yes, patents are being written in this fashion. I don't know whether they'll hold up in court; but some really strange things are holding up in court.)

Until 1970, there was no such thing as a patent on a living thing (plant or animal) in the United States. The original plant patent act specifically allowed farmers to save their own seed, and researchers to work with the cultivar for research purposes. Living creatures, however, can now be patented under the standard patent law, which allows no such exceptions. This change wasn't the result of democratic debate; it was the result of court decisions that were mostly not reported on and not much publicly discussed. We ought to be discussing them.

Philip Stewart posted:

The right of the patent holder isn't simply a right to be paid for the use of their material, it's a right to
control how and by who that material is used. If I wanted to create a policy of licensing my cultivars
solely to people named "Phil", I could do that for the duration of the patent, even if other people were
perfectly willing to pay for the right.

This is indeed in many cases an issue of control: and some of the patent holders would like very much to be in control of the entire food system. Part of the moral question is, should they have that right? If you write a book, and you want it only to be read by people named "Phil", or you want to throw all the copies in the fire and be done with it; you're entitled to do that, certainly. (Though you're not entitled to add twelve lines to a work by Shakespeare, copyright the whole thing, and claim those rights over the result.) Should you really have that right over a living being? And over a living being that may be essential for the survival of someone else?

In the early years of the 20th century, my grandfather stole food from the armies occupying Poland, in order to feed his starving wife and child. The armies defined that as theft, certainly (though they had stolen at least much of the food themselves in the first place); and they would have shot him if they'd caught him. But he was right to do so.

There's my 2ยข --
--Rivka
Finger Lakes NY; zone 5 mostly



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