The Green-back Revolution

Bona fide or not, concerns about the safety of genetically modified crops have been grabbing headlines. But a far bigger story looms in agricultural biotechnology: that of an industry choking on its own patent claims. For a powerful example, consider recent patent activity at Monsanto.

First, the company won a patent-number 6,174,724 for those keeping score-that covers a seminal technology in transgenic plant research: the use of antibiotic-resistant genes as markers. It works like this: when researchers want to insert new genes into plant cells, say to create a drought-tolerant crop variety, they couple these ingoing genes with such a genetic marker. By then exposing the target cells to antibiotics to see if they die (they don’t if things got to the right place), scientists can easily test whether the gene transfer was a success. There is probably no one in transgenic plant research who doesn’t make use of this technique. But now, thanks to the U.S. Patent and Trademark Office’s woeful ineptitude, they will all have to beg permission from Monsanto to use this fundamental technology, not to mention pay any royalties the firm sets.

Amazingly, however, an even worse intellectual-property nightmare is brewing. A pending Monsanto patent claims exclusive rights to a pivotal, widely used germ called Agrobacterium tumefaciens. This was the very first Trojan horse that scientists employed to sneak foreign genes into plants way back in 1983. And if Monsanto wins exclusive control over it, the field will be rocked even harder.

The real tragedy here is that both these patents (one granted, one pending) would confer monopolies on technologies that fall way too far upstream of the market to deserve patent protection. As many scholars have noted, patents are supposed to be a compact between the public and the inventor: in exchange for allowing the inventor a limited monopoly, the public gets access to a new product. But in these cases, there is no new product. Instead, Monsanto has essentially grabbed a piece of the ag biotech “infostructure”-claiming exclusive rights to a technological technique that everyone in the field needs to compete.

The problem is even worse in the Agrobacterium case. This patent was filed nearly two decades ago but has been tied up in a purgatory called “interference.” With four competing research teams claiming to have invented essentially the same thing, the tortuous case has already taken a mind-numbing 18 years to adjudicate, with, not one, but two administrative-law judges retiring during the process!

Thankfully, new rules will prevent the worst excesses of such situations by starting the clock ticking on a patent’s life when an application is filed. But under the rules operating in this case (and all pre-1995 filings), the clock doesn’t start until a patent is granted. Which means that Monsanto is poised to walk away with a spanking-new, 17-year monopoly on a technology that has long since become indispensable.

Which leads me to another gripe: the private capture of public investment. Several teams that developed this powerful technology included academic researchers operating partly on government grants. In a collegial spirit, these scientists freely passed valuable findings to Monsanto, which is now turning them into an exclusive claim.

The full story is chronicled with great insight by Daniel Charles in Lords of the Harvest: Biotech, Big Money and the Future of Food. The book has a lot more on its mind than Agrobacterium tumefaciens, as Charles examines the outsized ambitions that characterize the whole ag biotech industry. But to my eye, if Monsanto succeeds in patenting the use of this germ, it will go down as a classic tale of a collaborative scientific endeavor perverted by a capricious, winner-take-all patent system.

The problems extend far beyond two bad patents. In fact, so many overly broad patents have issued in agricultural biotechnology that the entire field will likely suffer. With tremendous consolidation in recent years, warring fiefdoms of technological know-how have emerged. Firms like Monsanto use their patents to squelch competitors and leverage control of technology in the pipeline. Researchers are becoming so hamstrung by proprietary claims to key conceptual tools-sometimes shut out from using them entirely-that it is becoming ever harder to bring new inventions to market.

This is bad enough in the commercial sector. But the tangle of exclusive claims on basic research is also smothering public-sector researchers who, just a generation ago, launched the Green Revolution to bring high-yield crop varieties to the famine-plagued developing world. That revolution was spawned not only by new technology but by a commitment to use new seed varieties as building blocks to breed even better varieties in the future. With proprietary claims like Monsanto’s, we’re tilling a far less fertile field. Maybe we should call it the Greenback Revolution.