Constitutional Implications of State Seed-saving Statutes

A.B. E NDRES

Department of Agricultural and Consumer Economics, University of Illinois, Urbana-Champaign, Illinois, USA

Abstract

 New innovations in agricultural biotechnology have radically altered traditional farming, including some long-held practices among farmers such as saving the seed from one crop for planting the next season. Now that farmers buy licensed seed technology from seed breeders, saving seed constitutes infringement. Utility patents, Plant Variety Protection Certificates (PVPCs), and licensing and other contractual arrangements between farmers and intellectual property (IP) owners all serve to protect seed breeders’ discoveries from competitors while encouraging continued innovation. Contracts placing specific restrictions on farmers’ ability to save seed have engendered significant controversy. Some state legislators have proposed statutory schemes designed to push back the intellectual property rights (IPRs) of the seed developer and re-establish farmers’ ability to save seed. This chapter looks at the history of intellectual property protection (IPP) for plants and the current contractual measures between seed companies and farmers. It further examines current legislative measures to protect seed-saving practices, and finally looks forward to constitutional questions raised by seed-saving statutes.

Introduction

For generations of farmers, the seed represented the ‘alpha and omega of agricultural life’ (Kloppenburg, 1988, p. 37). The planted seed commences the crop production cycle and, when harvested, provides farmers with the option to plant the seed for the production of more grain, to consume for subsistence or sell to third parties for their own consumption or planting. As noted by Professor Kloppenburg, ‘seed is grain is seed is grain: the option to produce or to consume is there in each seed’ (Kloppenburg, 1988, p. 37).

©CAB International 2007. Agricultural Biotechnology and Intellectual Property: Seeds of Change (ed. J.P. Kesan)

Farm-saved seed historically served as a natural barrier to the growth of the commercial seed business. The development of hybrid corn in the early 20th century changed this agricultural paradigm. Seed saved from a hybrid lacks ‘vigour’ and suffers dramatically reduced yields. Accordingly, farmers purchase new hybrid corn seed each growing season. The single-use nature of hybrid corn, in conjunction with diligent enforcement of trade secrets to protect the parent seed lines, provided seed breeders an intrinsic business model to recover the research and development (R&D) costs for new hybrid varieties and spurred the commercialization of the corn seed industry (Fernandez-Cornejo, 2004, pp. 2, 19–20, 25).

Soybean seeds, in contrast to corn seeds, self-pollinate and may be saved and replanted by farmers from season to season without a significant decrease in yield. Moreover, competitors can readily appropriate and integrate improved self-pollinating varieties into their own product lines (Beach and Fernandez-Cornejo, 1994, p. 5; Fernandez-Cornejo, 2004, p. 18). Lacking the biological barrier to duplication provided by ‘hybrid’ genetics or ‘terminator’ seed sterilization technologies, soybean breeders must rely on legal regimes to protect their research investments.

Intellectual property (IP), in the form of utility patents and Plant Variety Protection Certificates (PVPCs), offers soybean breeders a legal regime designed to insulate their discoveries from competitors while encouraging continued innovation. Utility patents and PVPCs offer imperfect protection from the seed breeder’s perspective. Licensing and other contractual arrangements between the farmer and IP owner have developed to close the gaps in protection. Contracts placing specific restrictions on farmers’ ability to save seed have engendered significant controversy. Concerned with the strengthening of intellectual property protection (IPP) at the perceived expense of local farmers, some state legislators have proposed statutory schemes designed to push back the intellectual property rights (IPRs) of the seed developer and re-establish farmers’ ability to save seed. These proposals may conflict with the constitutionally derived power of Congress to establish a single system of IP, as well as its general authority to regulate commerce among the states. Moreover, existing proposals may violate the substantive due process rights of the IP owner.

The second section briefly discusses the historical development of IPP available for plants and identifies potential problems under current IP regimes. The third section describes how contractual arrangements, including utility patent licensing, dramatically strengthen the IPRs of seed developers. The fourth section identifies two categories of state legislative proposals designed to counteract contractual arrangements and establish state seed regulatory systems that allow farmers to save seed. These proposals raise serious constitutional questions, including pre-emption, due process and ‘dormant’ Commerce Clause concerns, which are examined in the fifth section. This chapter concludes that although constitutionally impermissible in their proposed form, state imposed seed-saving programmes, with relatively minor revisions, could survive court scrutiny.

Legislators must carefully balance farmers’ traditional ‘right’ to save seed with the tremendous costs required to bring new, genetically engineered varieties to markets. Whether state legislatures ‘should’ implement seed-saving programmes is a question left to be tackled elsewhere. This chapter only seeks to provide stakeholders with one view of the constitutional questions raised by proposed seed-saving statutes.