Charles W. Elliott
It’s All About the Patents. And Control. And Money.
“Seeds are the most basic thing that we got. Everybody has to eat. We want to have a healthy planet with healthy people, we have to have good seeds.” – Seed Farmer, Dan Jason
For more than 10,000 years, humans have engaged in the simple free act of saving natural seeds from a season’s crop and replanting them in the next season. The primeval cycle of planting crops, saving seeds and replanting them in the next season is the practice of agriculture itself. But we are now witnessing the passing away, in a single generation, “this ancient ritual as old as civilization, a ritual in many ways responsible for civilization.”  This is due to the use of genetically engineered plants, protected by patents and contracts, which make saving seed and replanting them in the next season illegal. The replacement of nature’s bounty with increased sale of genetically engineered crops under such restrictions leads inexorably to expanded corporate control of our food supply. This problem is exacerbated by the loss of crop diversity and increasing market concentration in the seed business.
Seeds and Patents
A patent is the exclusive right, granted by law, to commercialize a new invention for a limited period of time. Thus, patent law confers upon the patent holder a monopoly on the “exploitation” of the invention. Thanks to U.S. Supreme Court decisions that recognized the right to patent life forms, crop seeds and other agricultural products produced from genetic engineering are subject to patent rights.
In the context of crop seeds, this monopoly grants companies the exclusive right to sell the seeds and allows them to charge higher prices for them. As applied in most countries, such seed patents prohibit farmers from saving seeds from their own harvest. As a result, they must either buy new seeds each year or pay for a license to use the patented seeds they have saved. 
For non-hybrid crops that employ transgenetic biotechnology, agribusiness and seed companies use intellectual property law, tangible property common law, and strict contracts to prohibit farmers from saving seed. For example, when Monsanto sells seeds for its genetically modified crops, it requires that farmers agree to severe restrictions before they can open a bag of its GMO seed. Monsanto’s typical so-called “Technology/ Stewardship” license: (1) prohibits growers from using seeds for any purpose other than planting a single commercial crop; (2) prohibits growers from saving any crop produced from seed for planting; (3) prohibits supplying seed produced from seed to anyone for planting other than to a Monsanto-licensed seed company; and (4) prohibits transferring any seed containing patented “Monsanto Technologies” to any other person or entity for planting. The agreement also requires that the grower allow intrusive investigation of the growers’ records, including examination and copying of “any records and receipts that could be relevant to Grower’s performance of this agreement.”
These restrictions on the use of patented GMO seed even limit independent research into the environmental impact and safety of these crops. Research scientists who want to conduct research on the patented material must generally apply for permission from the patent holder. Scientists have been intimidated. Because the GMO companies must agree to the research, and certain areas of investigation are off-limits, the independence of scientific studies is at risk. http://e360.yale.edu/feature/companies_put_restrictions_on_research _into_gm_crops/2273/
The Loss of Seed Crop Diversity
As we’ve come to depend on a handful of commercial varieties of fruits and vegetables, thousands of heirloom varieties have disappeared. It’s hard to know exactly how many have been lost over the past century, but a study conducted in 1983 by the Rural Advancement Foundation International gave a clue to the scope of the problem. It compared USDA listings of seed varieties sold by commercial U.S. seed houses in 1903 with those in the U.S. National Seed Storage Laboratory in 1983. The survey, which included 66 crops, found that about 93 percent of the varieties had gone extinct.
http://ngm.nationalgeographic.com/2011/07/food-ark/food-variety-graphic (emphasis supplied).
It’s important to emphasize that the RAFI study was conducted thirty years ago. The situation can only have worsened since then. The situation in Canada is similar: some 75% of all the crop varieties that existed before the 20th century are now extinct. Of the remaining quarter, only 10 percent are available commercially from Canadian seed companies. Of those, over 64 percent of the commercially held seeds are offered by only one company; if those varieties are dropped, the seeds may be lost.
This loss of seed diversity caused by extinction of crop varieties and the reduction in commercial availability of seed varieties, is being coupled with takeovers of seed companies by so-called “agrochemical” companies, corporate mergers, and market power concentration in the seed market. This has resulted in an overall integration of biotechnology, agrochemicals, and crop seed.
Market Power Concentration
The seed industry is dominated by several seed and biotechnology firms. It is reported that in 2011, 73% of the global market is controlled by only ten multinational companies. See, “Who will control the Green Economy?”, ETC Group (2011), p. 22 (available at: http://www.etcgroup.org/content/who-will-control-green-economy-0)
It’s been estimated that Monsanto produces more than 90% of GMO crops worldwide. Companies such as Syngenta, Bayer CropScience, Dow and BASF make the rest. Over the past 15 years or so, a collection of five giant biotech corporations — Monsanto, Syngenta, Bayer, Dow and DuPont — have bought up more than 200 other companies, allowing them to dominate access to seeds. The takeover has been so dramatic that it is becoming difficult for farmers to find alternatives.
As a result, in the U.S., 90% of soybeans are genetically-modified, and many conventional farmers have trouble obtaining non-genetically modified seeds.  Thus, there is incredible market power concentration in this field so basic to human survival.
This market power gives seed and biotechnology firms the ability to set or influence seed prices, dictate terms, and make it difficult for new entrants to enter the industry. Such power also allows these companies to significantly influence government policy and regulation in favor of the industry and contrary to the public interest.
Inexorably, control of the food chain will be exerted by a few corporate entities as the result of the increasing use of GMO seeds which are “owned” by corporations, the concomitant loss of seed diversity, coupled with ownership of GMO seeds held by fewer and fewer and more powerful corporations. Thus: fewer and fewer types of crops, more and more patent ownership of those crops, in the hands of fewer and fewer corporations. 
This increasing concentration of corporate power and control through patents and market power ultimately poses a threat to the integrity and diversity of our food supply.
 International Seed Saving Institute, http://www.seedsave.org/issi/issi_ritual.html
 See, e.g., Diamond v. Chakrabarty, 447 U.S. 303 (1980), J.E.M. Ag Supply, Inc. v. Pioneer Hi-Bred International, Inc., 534 US 124 (2001), holding that novel life forms that are the product of human ingenuity are patentable under current U.S. law.
 Some GMO-proponents argue that this situation is not wholly dissimilar from hybrid plants and their seed. As the Court in the J.E.M Ag Supply life-form patent case noted, “Hybrid plants generally do not reproduce true-to-type, i.e., seeds produced by a hybrid plant do not reliably yield plants with the same hybrid characteristics. Thus, a farmer who wishes to continue growing hybrid plants generally needs to buy more hybrid seed.” However, the use of patent rights as a way to control the use, sale and distribution of the new seed extends far beyond the practical limits of trait inheritance.
 See, e.g., 2008 Monsanto Technology/Stewardship Agreement, http://www.monsanto.com/SiteCollectionDocuments/tug_sample.pdf
 Keepers of the Seeds, Winona LaDuke, http://www.yesmagazine.org/people-power/winona-laduke-keepers-of-the-seeds
 See, e.g., http://www.theecologist.org/News/news_round_up/ 625294/revealed_how_seed_market_is_controlled_by_monsantosyngenta_bayer_dow_dupont.html
 “In sum, the possible, long-term consequences of patents are control of the whole food chain by a few companies and establishment of unsustainable agriculture through monoculture and other factors.” Christoph Then & Ruth Tippe, The future of seeds and food under the growing threat of patents and market concentration (April 2009), p. 4. available at: http://www.no-patents-on-seeds.org/en/ information/background/future-seeds-and-food
Photo credit: U.S. Department of Agriculture, public domain