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  • From: Heron Breen <breen@fedcoseeds.com>
  • To: nafex@lists.ibiblio.org
  • Subject: [NAFEX] Patents for all?
  • Date: Fri, 17 Feb 2006 22:25:19 -0600

TO those tuning in,
The usual disclaimer that my opinions are my own, not reflective of an
employer.
As I thought about what you, my fruit comrades, wrote, I felt a seperation or
deviation, depending on your perspective, needed to be made between
clonal/vegetatively reproduced plant patents and gene patents thus far
reserved for
annual or near-annual plants.
I view patents as both good and bad. As an amateur breeder, and having worked
with
breeders in the seed trade, we who enjoy the fruits of others labors must
recognize
the labor first, the fruit second. Why this is not done is due to our
country's
great forgetting about our complete reliance upon the natural world. A
skilled
farmer, horticulturalist, woodsperson, lumberer, fisherman, naturalist,
herbalist,
or just those with the keen green thumbs and eyes had, pre-WWI, social
recognition
for starting the thread that led from wilderness/field to rootcellar or
dinner
plate. For the last century, as capitalism replaced religion and survival as
the
driving force behind farmers, you and I have become the people of the sacred
here
and now, the present, the deluded masses racing to be in the moment.
Farming, hunting, etc has never been about the moment, the here. It has
always been
about next year, the next week, getting up to see what the powers that be
have left
outside for you to work on. Problem solving in nature is always 3
dimensional, and
more like 5 or 6 when hired help is involved. Just to grow a crop of
anything,
regardless of profit, with just pure hand-to-mouth relevance in mind, one
must
become filthy in the game of What-If and Great!now lets go clean the stalls,
milk,
the next thing. But the stress once was more pleasant because the seasons
were the
guide, not commodity prices and Cargil's share price. Nature first, Cargil
second.
Labor first, fruit second.
Elwyn Meader had a saying about breeding plants: With 15 years and courage of
your
convictions, you can do anything. 15 years. In fifteen years, one can plow a
lot of
time, resources, love, sweat, just your pure lifeforce into something. You
draw
upon family, childhood experiences, friends, God, everything to see a result
that
might be there or might not.
Writers write books, poems, plays etc. Some spend years crafting a story, a
character, a line. At the end, if it is deemed publishable, it is given the
protection of a copyright. This means no one can take your work and reproduce
it in
any form without your say-so and a price. It is even considered bad form and
sometimes fraudalent to just quote an author without footnoting or
attributing the
work. And these are just ideas, not physical formations.
The vegetable seed world and the vegetatively reproduced perennial world have
parted ways on the purpose of patents. Fruit and ornamental breeders (F&O's),
private or public, use patents to make a little of that fifteen years of
effort
back, sometimes failing that even with a patent. Thus far, what has mostly
been
patented are clear new varieties. What is unique about F&O's is that a
mutation of
a patented variety is universally recognized as a distinct variety. In other
words,
the nearly same genes are just acting differently, as in a branch sport. And
the
discoverer of this sport can even patent it! Because fruit breeding is a
longterm
investment and the US economy cares squat about fruit growers (the
fruit/profit
part only at that, not the labor part), fruit breeding has remained in the
hands of
fruit enthusiasts and the like. Because one parent tree is the source of all
future
trees, all one can do is control the distribution of material from that one
tree.
And plant patents only protect that for almost 20 years. It takes nearly
twenty
years to get a released fruit enough commercial recognition to make the money
back
on the breeding program (if that)! The delayed gratification, mutliple steps
of
labor involved, and the required skill make F&O patents at best good for a
small
fortune. Most often, a little extra pocket change and some professional
recognition. Just the fact that some many popular fruit cultivars have
resulted
from chance seedlings on the roadside makes an investment group leery of
buying
into a breeding program. And those that have bought, have bought into the
distribution side ie the retail nursery business where marketing is the key
to
success.
Another way to look at why money corrupts and blesses F&O breeding less is
because
fruit and ornamental "pretties" are really economic dessert. Wheat, beef,
soybeans,
corn, are what's for breakfast, lunch, and dinner. In today's culture, ice
cream
WAY outsells fruit for dessert. And only a few people really care which
cultivar of
Lilac is in the driveway, as long as it is the right color. In ornamentals,
folks
just want performance not nuance.
If Paul Friday wants to patent some peaches to make back all the time and
money he
and his have invested into good germplasm, crosses etc, God let him. After
spending
an arm and a leg on the patent process, and taking the risk of working with
nurseries to release the variety, I am sure he just wants to get back to
breeding.
Breeding should really be called selection, which to purists can be
simplified into
gathering, as in hunting and gathering. Not much more glamorous, but just as
risky
and exciting. Everyone wants a safe secure lifestyle these days. You have got
to be
nuts to be a breeder/gatherer like Zaiger or Friday, in today's world of
salaries
and crippled agriculure. The patent is basically a copyright for the story
they
have helped unfold for many years. These people are human, too. I'd hate to
hear
that Paul Friday got sick and died or a loved one did because he couldn't
afford
appropriate health care. I hear that a lot about older farmers and plant
breeders
from the last generation who have almost all checked out over the last 20
years. "So and so selected this cultivar of raspberry. Never saw a dime. Lost
the
farm in '84. Where was it? Where the Walmart is now". Most all private
breeders
that I know, annuals or otherwise, have a second job.
An act that is immoral among the cadre of F&O breeders is taking a heirloom
variety
and patenting it. No previous known/named variety can be patented,
thankfully. You
can change the name and trademark the new name, but that crap (pardon the
expression) is the work of those investment groups that buy up retail
nurseries,
not legitmate plant people.
It is different with vegetable seeds. Let's address where is is dirtiest:
GMO's and
gene patents. The issue here is that some wise guys with gene patentlawyers
have
not copyrighted a story or a poem, but actual words that make up a sentence.
Like
its illegal to use the word "the" anymore without paying some suits money.
Then
they tell you if your plant sexually reproduces with their plant, the
offspring
have to be destroyed or they'll sue you. This is like Paul Friday telling you
that
any peach seedling that has a little bit of Flamin' Fury floating around in
it is
his. Or that any peaches harvested from any trees not from a Flamin' Fury
series in
a peach orchard planted with his varieties and some others must be destroyed
or all
profits from the sale of Fury pollinated said peaches are his.(OK yes most
peaches
can produce fruit solo). Then these vegetable GMO wise guys go over to
another
country, extract a gene from a heirloom variety, and patent it, telling
everyone
that they own anything with that gene in it. This is like someone patenting
the
gene sequence for Northern Spy, and any gene sequence that has the Northern
Spy
marker sequence in it, even if expressed differently, is gonna pay some
buckage to
some suits. Remember what I said about O&S breeders not patenting known
cultivars?
This is akin to Bear Creek having patented the Siberian Peach strain. I mean,
what
the heck? How can you patent anything that already exists normally in nature?
This goes for gene sequences as well. Almost no one is creating completely
original
gene sequences. People say they are, but they are not. They are splicing
together
already existing gene sequences from other lifeforms to create a new pattern.
This
is like taking thread and making different types of plaid. Can you patent the
resulting plaid? Never heard of it myself. Can you patent the threads made
from all
the different animals etc you made them out of? Not until recently! The Old
Way of
patenting would be patenting the unique process or machine you made to make
the
thread or plaid. And in most cases, since patents only last so long, truly
wise
creative/industrialist types had what were called "trade secrets".
But "trade secrets" or secret sauces don't sell well on Wall Street, and
trade
secrets generally creates a guild type atmosphere with friendly competition.
Not
gross profits for investors to buy big cars with.
The fact is that this type of GMO patenting and breeding have taken control
of base
foods, also called commodities, that people, also called consumers, rely
upon.
There are many other issues that involve GMO's, but I'll stop here.
Luckily, cooler heads have so far prevailed in the F&O world.
About violating patents: to me, if we are talking gene patents, violate away.
The
more the merrier. In fact, you are probably violating Monsanto's patent right
now
with the GMO food/dna in your gut getting broken down. The only legal remedy
I can
see is sending the GMO food, once excreted, in a box back to them with a note
saying "sorry, here's those precious genes back that you are so concerned
with".
But plant patents I see differently. If we were spending the amount we are
spending
currently on the Department of Offense (since when did invasions get defined
as
Defense?) on agriculture, I'd say to hell with plant patents. But in reality,
plant
patents are just one more tool farmers are trying to use to stay alive. Yes
breeders are farmers. Plant patents are like saying "this is my new special
sauce,
and if I don't market it, some greedy city type is gonna make a mint while I
loose
my teeth livin' offin baloney sandwiches for another 15 years til I strike it
lucky
again and learn my lesson and bottle it myself, damn it!" Yes, there are
vegetable
varieties that fall into extinction because nobody preserves stock seed due
to
plant patents, but there is a little bit of protection for those wanting to
do
that: just say you selected/improved the variety, which you did because you
saved
seed from it and that is selection, and say it was used in breeding. Then
when the
patent expires, just say you had a little bit of seed in the freezer, and lo
and
behold it was still good, and now you're offering it. If you don't horn in on
their
action while the patent is in working order, they won't care. Just be
respectful of
their work to get the germplasm, select it, test it, multiply it, and get you
to
say "dang, this patented green bean is worth savin'!"
For the most part with vegetables, you and I don't even have to worry about
patents, because most of the varieties offered have hybrid written all over
them.
This is the breeder's way of saying "trade secret" in neon letters. If you
try to
stabilize a hybrid, you select a new variety officially, and you are good to
go. No
apologies to Seminis needed. Elwyn Meader thought hybrids were unfinished
breeding
projects, so really, you've just finished their labor and they should thank
you.
For F&O patents, if you want to be a jerk and violate them for profit, fine.
I'll
be happy to report you to the patent holder. I wouldn't care if you want a
few
trees for back-up, but if you like that breeder's work, you should agree to
his/her
terms when you buy the trees. Just buy a coupla extra and know you are
sending
someone's kid to college or helping to delay the university's ax on the
research
orchard site becoming the new bio-tech lab. Want it on a different rootstock?
Request from a liscensed propagator or pay your fee directly to the patent
holder.
What I find disturbing about the "cast no stones" concept in turning people
in is
that no one on this list thinks publishing Steinbeck without permission is
okay,
but few want to stand up for each other's rights in plant breeding. We can
all
fight Monsanto in our spare time, but what happened to an honest dollar for
an
honest day's work? Paul Friday might really need that $200 in royalties that
someone thinks he won't miss...remember my health care example above? He did
the
labor, and now you have the fruit! Give him his 17 year due please! "Casting
no
stones" is good, but so is "having your buddy's back" as the street slang
goes.
Farmers need to stick up for farmers, at least for 20 or so years.
The illegal economy is also called the Black Market. The Black Market and the
Stock
Market both have one thing in common: selfishness. I don't belief the hype of
"this
is a nation of laws". Laws are used to keep people in their place most of the
time.
I think this is a nation of people. The Bill of Rights, Declaration of
Independece,
and the Constitution seemed to think the same. The "Rule of Law" can be
manipulated
any which way to help badguys do what is intended by the "Rule of Law"
phrase:
RULE. This is what Monsanto is doing. What Paul Friday is doing is making a
legitimate living. The same legislation is supporting Financial Slavery and
Freemen. Indeed it is flawed and needs to be fixed.
I think the only reason to not report someone for plant patent violation is
if they
are trying to maintain a vegetable variety until after the patent expires, or
have
a few backup trees, or if you are concerned about losing your friends' and
peers'
respect. People say: "yeah this nursery person broke the patent law, but he's
a
nice guy and has done so much for plants. That person who turned him in is a
ratfink. I don't like them. They ruined the reputation of a good person."
This is
what happens. It is called being a whistleblower. Apparently Omerta is not
just for
the Mafia. Justice may be blind, but people are not. This is a nation ruled
by
people, and people are judgemental. Me included. So, I will think twice
always
before turning is somebody for violating a plant patent for a profit.
Gene Patents should be restricted to completely original gene sequences made
up of
completely original proteins ie nothing that exists in nature currently in
any
genetic sequence should be patented. My opinion.
Overall, do plant patents (not addressing gene patents here) restrict the
flow of
food and plants? Somewhat. But plant breeders have always had this issue of
control. A favorite example of mine is a famous variety of heirloom sweet
corn was
bred by a farmer, and his neighbor liked it so much he wanted some seed.
After many
years of begging and promises that nobody else would get the seed, the
breeder gave
in and sold the neighbor a small bag of corn seed for $10 (a lot at the
time). The
neighbor proceeded to turn around and sell the same seed for $20,000 to a
seed
company. No one is obligated to give away their life's work and live in
poverty
just because of some purist sense of plants being sacred. Plants ARE sacred.
Everything is sacred, including pee, poop, spit and puke. (You learn these
things
as a parent.) Its about respect, not whether sacred.
Are plant patents humans trying to "own" the natural world and represent our
disconnect from our agrarian past? No and Yes. Another topic, another rant.
Maybe if we look at buying patented plants like we buy other products: most
of us
want to buy products produced in an ethical manner. So choose your breeder or
breeding program after doing some research to see where their money comes
from and
how they do their work and treat their employees. Then shell out the royalty
and
feel good about supporting agriculture.
Or lobby hard and change the system. I'd support a complete refunding of land
grant
universities and then we could pay the Floyd Zaigers of the world a govt.
salary
with benefits. But only after we secure enough fossil fuels for the next 10
minutes, oops I mean years. Okay?
Thank you for your patience through the above rant.
Blessings,
Heron Breen
zone 4, Maine
"Offend them all. It the only way to know what a whole room of people is
thinking!"







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