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Source link: http://archive.mises.org/7779/dont-save-your-patented-seed/

Don’t Save Your (Patented) Seed

February 14, 2008 by

As reported on the Patent Baristas blog: “To paraphrase Ronald Reagan, “Well, There You Go Again!” The Court of Appeals for the Federal Circuit again affirmed that, while the practice of savings seeds after a harvest to plant the next season is as old as farming itself, you can’t save patented seeds.”

Is any comment really needed?

{ 17 comments }

Ron February 14, 2008 at 11:32 am

Leaving aside, for a moment, the question of the validity of patents, would the market not weed out such behavior on its own?

When a farmer goes to purchase seed, he has to make a choice between seed he can “reuse”, and seed he cannot. Since seed that cannot be reused present an up-front cost each growing season, there must be some factor(s) that increases their value over seed that can be reused. Perhaps they are sold at a significantly lower cost than standard seed, or maybe they produce a higher yield, are more resistant to disease, or are in some way represent greater value to the farmer over standard seed. If they didn’t, they wouldn’t be purchased, and there would be no market for them.

By the same token, having consciously made the decision to purchase patented seed, what then gives the farmer the right to protest the agreement with the manufacturer governing the use of the seeds…a contract he has entered into voluntarily by purchasing them?

Phill Osborn February 14, 2008 at 11:34 am

Aren’t most (if not all) patented seeds going to be hybrids? There’s no point in planting the offspring except as a science experiment, because, as Forrest Gump’s Mama would say, “You never know what you’re gonna get.”

David Bratton February 14, 2008 at 11:48 am

The real mess happens when the patented crop cross breeds with non-patented crop and the patent holder wants to claim rights over the resulting crop. You might simply own a farm next to one growing a patented crop and find yourself being sued for patent infringement because the birds and the bees didn’t honor the patent.

Ron February 14, 2008 at 12:03 pm

Good point, David. I hadn’t thought of that. Still, though, that should be made clear in the original agreement. Even if it wasn’t, I imagine such behavior would sour farmers’ opinions of the patent-holding seed company sufficiently to discourage it.

But maybe not. It hasn’t discouraged the RIAA from pursuing such draconian measures against its customers.

Jim O'Connor February 14, 2008 at 1:05 pm

I don’t know how a party uninvolved with the purchase of modified seed could possibly be attacked. Shouldn’t the seed company attack the purchaser for not properly controlling the spreading of its protected pollen? It isn’t up to the neighbor farmer to wipe all of the bees mouths and feet before they fly to his field.

olev February 14, 2008 at 2:20 pm

With regards to patented crops pollinating adjacent crops on others’ property, this would clearly be trespassing (a violation of private property.) I know that this did not happen in the recent case where a farmer’s field was contaminated by the neighbour’s patented plants and the farmer lost. How on earth could this have happened? Can I go and throw a handful of grass seed on my neighbour’s land and then claim the grass is mine? Why is pollen any different?

8 February 14, 2008 at 2:30 pm

Is the problem here patent law (i.e. Monsanto has to do business in this manner), or is Monsanto using the court to enforce their business model?

For instance, why doesn’t Monsanto give away the seeds and then charge through the nose for Round-Up? It’d be easier to police chemical manufacturers.

Stephan Kinsella February 14, 2008 at 2:50 pm

8 wrote: “Is the problem here patent law (i.e. Monsanto has to do business in this manner), or is Monsanto using the court to enforce their business model?”

Uh, what’s the difference?

Andrew February 14, 2008 at 3:12 pm

> why doesn’t Monsanto give away the seeds

Some folks could just ignore the offer… Proper solution is to spray seeds from planes.

C Smith February 14, 2008 at 3:31 pm

If you read the whole article you’ll find that the farmers signed agreements not to save and replant the seed, which even in a market anarchy would be fine business practice as long as you could get people to agree to it.

Kavius February 14, 2008 at 6:05 pm

Read your contract. Protect your rights.

I don’t know of these particular cases, but I was talking to one farmer (years ago) who was being mocked by his neighbors for not planting the new “cheaper” patented GM seeds. There was a clause in the contract that stated the field had to be fallow for one year if switching away from GM crop (I’m assuming to stop cross breeding). He was not going to sign a contract that told him what he could an could not plant.

The next year, the low introductory rate went away. Nobody could afford to allow their field to go fallow for a year. Everybody was forced to reduce their profit (something is better than nothing), except one farmer in the region. The guy that could plant any crop he felt like, including the cheaper, non-GM, seeds.

Buyer beware, and use your head. Totally unethical business practices in my opinion, but I can’t believe the farmers fell for it.

Henry Miller February 14, 2008 at 6:46 pm

There was a case where a farmer saved seeds, and a the bees (wind/ants/whatever) carried some pollen to his seeds. He lost for having patented seeds. However it came out in court that he was trying to get the patented genes – in this case he took the resulting seeds, sprayed them with round-up. Normally this would kill everything, but some of his seeds were protected because of the pollen from the neighbor’s field the year before.

If that farmer had not tried to use roundup as a weed control he is likely to have won his case. However he was actively trying to get that genetics in his seeds, and so the courts decided he violated the patent.

I’m not sure what conclusions to draw from that, but you should know the above facts before drawing any.

EP February 15, 2008 at 1:11 am

In Monsanto’s defense:

-The farmers sign a contract
-The desired genetic trait goes weakens with each generation; it is usually better for the farmers to re-buy the seeds anyway.

VMG February 17, 2008 at 5:48 am

Farmers have been overwhelmingly receptive to gmo seed which is why Monsanto has done so well. This company is viewed as manipulative and controlling by nearly everyone in agriculture, however when it comes time to purchase seed that contain thier patented traits there is a huge demand. The demand is due to real or percieved convenience for the farmer in the form of indirectly lowering chemical costs to control weeds or insects that will impact crop yield.

This seed costs more because it potentially reduces costs to the farmer (only one spray of herbicide vs. at least two with traditional seed. This is money saved to a busy farmer).

Most farmers I know complain about the cost of the seed and then place thier orders as quickly as possible to make sure they can get some. That said, there is no shortage of dealers that offer “traditional” or “public” variaties of seed that are not patented and can be saved. This sounds great, but there are costs to saving seed as well, such as harvest, storage, cleaning and rehandling seed. So its not “free”. Some farmers still practice this, however most do not.

FYI, patented seed is not necessarily hybrid seed. 99% of farmers grow hybrid corn. It would be foolhardy to save hybrid seed to grow for next year because it will not breed “true” (resemble the parent) due to loss of vigor from inbreeding so you won’t know what you will get, but it probably won’t be what you hoped for. Farmers have never saved hybrid seed. However, crops such as soybeans and wheat are mostly all non-hybrid and will breed true so these crops were traditionally saved.

My view is that if you don’t want to grow the seed there are certainly alternatives to it. In fact, alternative markets are developing that offer premiums for non-gmo crops. I never understood why people felt that Monsanto should not be free to charge extra to recoup thier research and development costs for these products. Again, if you don’t want it, don’t buy it.

Francisco Torres February 17, 2008 at 10:21 pm

The Court of Appeals for the Federal Circuit again affirmed that, while the practice of savings seeds after a harvest to plant the next season is as old as farming itself, you can’t save patented seeds.”

With all due respect to the Court of Appeals, the saved seeds are not the same seeds as the purchased seeds – the farmer did not copy the design and manufactured equal seeds. It was Nature that did its thing in generating the new seeds, and as far as I know, Nature is not bound by human laws. Thus the new seeds are the farmer’s seeds and not Monsanto’s, since it came from plants that grew in HIS field.

TokyoTom February 18, 2008 at 3:13 am

Stephan, it seems to me that whether or not Monsanto had or should not have been granted a patent on the soybeans is entirely irrelevant. This seems to be a simple case of the enforcement of commercial contracts to protect intellectual property, and to be entirely appropriate.

No one made anyone sign agreements with Monsanto or to purchase their products.

Am I missing something?

Jayme July 31, 2008 at 2:10 am

How about, farmers are forced to use patented seeds to be able to sell their crops at market standards. Due to the subsidation of corn by the government and the rediculous introduction of patenting a seed, let alone one that has been genetically modified with “round up” is beyond terrifying, farmers can’t afford not to. If someone suspects a farmer of using a patented see, they then what, spray the crop with round up and if it dies, they were wrong? The whole concept is not well known or no one in their right mind would be feeding their families anything produced using corn, corn syrup or high fructose corn syrup. Foreign governments are waiting to see future results as far as the health of American children over the course of more than a decade to even contemplate using such a product in their own markets. This whole idea is disgusting and I for one plan on whole heartedly supporting those who grow organic unpatented seeds and will intentionally avoid feeding my children anything made with by-products of patented seed. I have no problem agreeing with foreign government in waiting to see what happens to everyone elses children. God have mercy.

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