Understanding Plant Patents for Your Organic Garden

While you are planning your garden, be aware of plant patents. Patents restrict your ability to propagate certain varieties, and they should be clearly labeled so you know what you’re buying. We want heirloom varieties to be passed down to future generations, and we want to be able to share seeds and plants with friends and family. These simple, vital, and ancient gardening activities are threatened by plant patents. Here is how plant patents have evolved, and why they are bad for food security:

Ancient History

As indigenous people moved from a hunter/gatherer lifestyle to one of farming 12,000 years ago, they bred wild plants for use as food, animal feed, textiles, building materials, and spiritual ceremonies. They exchanged seed and other cultural items over extensive trade routes that covered North America and Latin America. When European explorers arrived in the 1400s, they saw foods they’d never seen before. They took seed back to Europe and bred plants suitable for their regions. When they returned to the Americas, they brought their seed stock with them. Many of these strains became the heirlooms we covet today. As the settlers moved west across the US, they carried their seed and grew it out year after year. The land was dotted with subsistence farms. These self-sufficient families raised their own food and bartered with others in their community for items they needed but did not have.

Government Involvement

In 1839, the Agricultural Division of the US Patent Office was formed to distribute free seed, plants, and growing information to farmers. They were also to conduct research to improve production to feed our expanding country. By 1860, they were annually distributing over 2.4 million packages of seed, each containing five packets. Farmers were to grow it out and save it for the following year. In 1862, the Agricultural Division became the USDA, which allocated about 1/3 of its budget to collect and distribute free seed to US farmers. They also continued to support them with free plants and growing information. The majority of the US population, including its politicians, were farmers, and many of them took advantage of this opportunity to breed plants we still grow and eat today.

Enter Greed

The American Seed Trade Association (ASTA) was formed in 1883 by a handful of seedsmen who were looking for more profitability in their businesses. They saw the seed giveaways as detrimental to their growth, and they lobbied Congress to do away with the program. After almost 40 years, they were successful. In 1924, the USDA’s free seed distribution program was terminated, in the first move to restrict widespread access to seed. A few years later, in 1930, the US Plant Patent Act (PPA) was signed into law. New varieties of asexually reproduced plant stock, those propagated through cuttings or grafts, such as fruit trees and ornamentals, could be patented. Seeds were exempt, even though ASTA pushed hard for them to be included. Tubers, such as potatoes, were also exempt. In 1970 the Plant Variety Protection Act (PVPA) was passed to now patent sexually produced plant varieties, those propagated by seed. Farmers and breeders had exemptions. Farmers could grow PVPA seed for their own use and to sell to other farmers. Plant breeders could use PVPA seed to develop new patentable varieties. Tomatoes, celery, okra, cucumbers, carrots, and peppers were exempted but eventually added to the list in a 1980 amendment. F1 hybrids were also exempted but then allowed in a 1994 amendment, which also included the right to patent hybrid corn and tubers. Restrictions were placed on farmers and breeders lessening their access to PVPA seeds. The most important (and disastrous) result of the PVPA was that mega-corporations and chemical companies began buying up small seed companies in record numbers. That has not abated in almost 50 years. Mergers continue! The first Utility Patent for plants came about in 1985. The same patent used for tangible gadget inventions since 1790 was now applicable to plants. This is the most stringent restriction of plant and seed use, stating that plants (and animals) can be patented if they are not naturally occurring in nature. A Utility Patent also protects the method used to modify a plant or animal and is how genetic engineering became legal. Corn was the first crop to be grown with a Utility Patent. All exemptions for farmers and breeders were removed.

What You Can Do

So you can see how food and plant matter, which have been freely grown and shared for thousands of years, have been gradually and drastically restricted in less than 100 years. This piece in Slate accurately states “plant patent laws are the legal framework that enables (Monsanto’s ethical) sins.” It can’t be clearer than that! You’ve heard the phrase ‘Vote with your dollars’. When you buy plants and seeds, do not support corporate ownership of the plant world, modification, or genetic engineering. Avoid patented plant material. Vote for organic gardening, heirlooms and their stories, and seed saving instead! Go to your favorite seed catalogs and websites, and look for patented varieties. Here is a page of Monrovia’s patented ornamentals. Johnny’s Selected Seeds’ Salanova butter lettuce has three Utility Patents on it. High Mowing Seeds’ Indigo Rose Tomato has a PVP patent on it. Read this thorough overview of the situation, The Control of Seed and Seed Sovereignty, by Andrew Still of Adaptive Seeds. Click on his links, too! See what Frank Morton, a long time lettuce breeder, has to say about plant patents. Do a little homework before you go shopping. There is no place for patented plants or seeds in your diverse organic, heirloom garden.