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Workshops
IP Ambiguity and Its Impact on Organic Seed Availability  

So, I Bought Some Seed—What Can I Do with It?

Frank Morton

PROLOGUE: An organic variety is born, 1.0


‘Sweet 100 F1’ was a legendary tomato that earned its reputation during the 1980s. Alan ‘Mushroom’ Kapular, legendary organic breeder and seedsman and one of the principle founders at Seeds of Change, figured out that the F1 designation was a ruse. When he grew out the putative F2 seed every plant was identical. Having learned this, Seeds of Change put the variety in their catalog as ‘Sweet 100 OP.’ Shortly, they received a cease and desist letter from Peto Seeds ordering a stop to sales and declaring that there was no “OP Sweet 100.” SOC responded that in fact there was no F1 Sweet 100…that the truth was out. Peto replied that in any case, “Sweet 100” was a trademark that SOC was not free to use. So the name was changed to ‘Peacevine’ and it is still produced organically and sold under this name.  Peto Seeds on the other hand was absorbed by seed consolidation in the mid-90s, and its name changed to Seminis in 1996. ‘Sweet 100’ became ‘Sweet Million F1,’ and you can still buy it.

From the beginning, a central challenge for the organic seed sector has been gaining access to new varieties for organic production.  One of the missions at Wild Garden Seed has been to increase the availability of certified organic seed varieties for growers, and we’ve done that through breeding our own varieties on the farm, and by appropriating available commercial and heirloom seeds.  In the early years of this mission, 20-odd years ago, the only seed company with national reach offering 100% organic seed was Seeds of Change.  That catalog began the process of heirloom and commercial seed “organification” by organizing a cadre of organic growers to grow out varieties selected from seed catalogs and racks and pulled from personal collections.  Mind you, there was no National Organic Program at the time and only a few states had implemented certification.  There was no “organic seed requirement” for growers, and planters were allowed to use any seed to begin their organic production, even fungicide-treated seed.  When the NOP “organic seed rule” was proposed, the organic community had its dissenters. Many veteran growers insisted that this was going too far, that the seed was irrelevant to the organic process, and especially that the requirement would relegate them to using inferior quality seed of inferior outdated varieties sold at high prices.  At the time, some of this was true.  The quality seed houses and breeding companies did not “do organics.”  Most of the seed catalog companies selling to organic growers were not certified themselves, and had no love for the idea that their inventory systems would need to be completely revamped in order to accommodate certified organic seed.  One skeptical company owner was quoted as saying, “The companies don’t want to sell it, and the growers don’t want to buy it…so why are we doing this?!”

Organic seed growers had a lot to prove at the end of the 20th century, and not much to go on.

In 2002 the NOP organic seed requirement went into effect, albeit with a generous and persistent loophole allowing untreated conventional seed use when organic seed of adequate quality, volume, or kind was not available as organic.  Wild Garden became a certified organic seed source. Other companies either certified wholly or bit the bullet and divided their inventories into separate organic and conventional sides.  Higher up on the supply chain, the seed houses of Europe developed separate organic departments and organic breeding programs (e.g. Bejo), or purchased organic seed companies as outlets for their new organic programs (e.g. Enza Zaden/Vitalis).  At Seeds of Change, growers had to become certified organic, not just sign an affidavit declaring themselves organic.  This was the beginning of the certified organic seed industry.  For some perspective of where we were at this point, Organic Seed Alliance wasn’t yet even an idea.  There was clearly an opportunity for organic growers to become the basis of a new organic production sector, but there was a lack of knowledge and there was a lack of new genetics available to an independent organic seed industry that would make it viable and competitive with conventional seed.

Knowledge was something we had within the community, and after 2002, seed growing and genetic improvement workshops began to be standard sections at regional organic grower conferences.  John Navazio can be credited with raising consciousness about the intersection of genetic maintenance and improvement within the organic seed growing enterprise.  Wild Garden Seed can take some credit for demonstrating that organic farmer-bred varieties can run with the heirlooms and commercial workhorses and earn a name for themselves.  Appropriating heirlooms and old commercial standards to the “variety organification” process was straightforward, because these were well within the public domain and no one felt they owned them.  But when new varieties were being considered for certified organic production, the organic community got its early education with intellectual property protection, and good manners.

PVP (Plant Variety Protected) varieties had vexed independent seed growers for some time.  There was a lot of complaining among independent seedfolk dating to the 80s and 90s about not being able to grow and sell Sugarsnap peas until its PVP expired.  Without a license from the PVP Certificate holder, these varieties could not be made into certified organic seed for certified organic growers.   Lettuce and other self-pollinated crops were heavily PVP’d throughout the 90s, and by the early 2000s almost any open pollinated crop that could be made an F1 hybrid, was an F1 hybrid, or would soon be. This was another method of intellectual property protection, since F1’s could not be used to reproduce varieties.  Because of a lack of varietal diversity, organic farmers who wanted to grow organic seeds were having a hard time not duplicating each other, which is to say, competing with each other rather than the conventional market.  In the search for good commercial varieties to grow for the organic market we looked for PVP varieties that would soon expire, knowing that once the PVP was gone, the variety would disappear. That was the pattern.  Any cross pollinating OP variety was a good bet for organic production, because we knew it would soon be replaced by a hybrid.  Thanks to this strategy for drafting varieties into organics, a lot of good varieties have been kept in production by organic growers that would otherwise have disappeared from the market.

Utility patents for lettuce first got my attention in 2008. Patenting began well before that, but I didn’t see a patent number at the end of a lettuce description in a catalog until then.  This seemed like a major escalation in the seed ownership game because patents connote ownership over all aspects of a plant—all its parts including pollen, and all its progeny, all its traits, indeed even over any information that may be derived from it through research.  As someone who has spent my life breeding lettuce and growing lettuce seed for sale, dodging PVPs and avoiding varieties with ® attached to their names, the prospect of utility patents on lettuce traits was daunting, but at least avoidable…if you knew what was patented. 

Since 2008, patent notifications in catalogs have become more common, replacing PVP as a favored form of protection.  This is significant because PVP allows for breeders and researchers to use the variety as a genetic resource, but patents do not.  This precludes organic plant breeders from including important traits for disease, pest, and stress resistance, as well as critical modern traits for productivity and adaptation.  This is a serious hindrance for bringing significant new varieties to the organic seed market, and as more patented varieties are introduced by industry, options for modern genetic improvements seem tangled.  One begins to wonder if any modern variety can be brought into an independent breeding program for organic seed without someone laying claims against the final product. My opinion is that patent claims on natural traits are attempts to patent the work of nature, which in fact are discoveries, not creations.  Discoveries are not patentable.  But there are many conflicting opinions on these issues regarding patent rights and breeder’s rights, natural traits of plants versus natural traits of humans, and more.  Ambiguity.

There is another trend in seed ownership that is scarcely visible. Indeed, it’s invisible unless you read the fine print in the Terms of Business section of the paperwork that accompanies a seed order, or possibly it’s printed on a seed package, or it’s at the bottom of a website menu.  Here it is common enough to read that the seed accompanying this notice is for the singular purpose of producing a vegetative plant for personal consumption or sale to a consumer, followed by a lot of what’s not to be done or grown or sold or published on account of this seed.  One certainly may not use any trademarks associated with the seed, which presumably includes the name, except to promote the sale of the vegetative product.  This is a contractual limitation on the use of the seed that you agree to by using the seed, apparently.  I don’t know how often these things get litigated, but I would love to hear the case.  If this is not just boilerplate, if this kind of contract holds water, you may not grow Amish Paste tomatoes for seed if the seed packet tells you not to, despite Amish Paste clearly being in the public domain.  OSU vegetable breeder Jim Myers, well versed in intellectual property law regarding seeds, has pointed out that this is in conflict with seed law that permits anyone to grow seeds that are in the public domain.

In 2017, this has become even more personal for me and my corporate persona, Wild Garden Seed.  We sought out some new lettuce this year for the catalog.  I bought a lettuce from a national catalog, enticed by its description.  It was new to me.  We grew this lettuce to seed and noted its good characteristics along the way.  We only grew about a pound of seed and anticipated putting it in the catalog so our new offerings wouldn’t look so inbred.  I got as far as thinking about a price for it and even the description was written, before I realized where this lettuce originated…that is to say, who had written the fine print (I didn’t see) saying I should have not grown this variety to seed.

So there I sat in November, looking at this pound of seed that I had put considerable expense into growing, photographing, cleaning, and describing…wondering who this lettuce seed belonged to…and what I could do with it.

I have grown about 200 flower varieties over the past 2 years.  Some are very old varieties, some are very new, but they are all new to me. I am a novice in flowers, a babe in the cutting garden.  I have not grown any trademarked or patented varieties that I know of.  I avoid them.  But after staring at that bag of lettuce, I began to wonder how many of those flowers have some kind of restriction on their reproduction?  When I looked into it I found some seed sources had restrictions on reproduction written into their terms of doing business, and some did not.  In some cases, finding the restricting conditions of sale was difficult. Are those names trademarked?  How would I know?  What is my responsibilities to find out versus an owner’s responsibility to inform me of the ownership claims?  Can a user of seed be held to a contract that is unseen and not agreed to?  So much ambiguity.

When the Open Source Seed Initiative was finding its way to keep open source seeds from being patented or used to breed patented seeds, we explored “shrink wrapping” contracts to keep seeds free. The shrink wrap concept came from a software IP protection model, wherein a user agrees to contractual restrictions regarding use merely by opening the package.  The legal advice we received was that these enveloping contracts would not work for us, that every packet of seed would need 7 pages of legalese attached for it to be binding on the seed recipient.  Not a practical solution.  This is why OSSI elected to go with a simple pledge to assert moral authority over those seeds, rather than attempt legal authority, in a bid to keep others from privatizing the genetic resource. Knowing this, I wonder how an invisible contract can keep anyone from reproducing seed they purchased or received second hand.

Considering all this, perhaps I could sell that lettuce without the breeding company having any legal satisfaction against Wild Garden Seed.  Maybe the retail company that sold it to me would have some pain from the breeding company for not passing along restrictive language to customers. Maybe the company that sold it to me would blacklist me for violating terms I was not aware of. I doubt it. There’s a lot of ambiguity here, and maybe that’s how it’s going to be until some violation is worth the cost of legal action so a court will get a chance to test these claims to ownership.  But maybe that ambiguity is all it takes to keep competition at bay, which of course, is the real goal.

So what am I going to do with this lettuce seed? It will not be available through our catalog. Considering what I know about the breeder’s wishes (having dug to the bottom of the fine print), it would be bad manners to sell the product of the breeder’s work, and because the breeder offers it as an organic variety, I can see no ethical imperative to offer it as an organic choice. But I might give it away at a seed swap. If I can verify that it actually has no patent on it, I’ll be tempted to breed with it. If its patent is a secret, I can’t very well abide by it, can I? There’s plenty of ambiguity to go around.

Originally published in the 2018 Wild Garden Seed Catalog.

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