Imagine two fields, side-by-side. One grows genetically modified corn, the seed bought from a major firm. The other grows organic where the farmer stresses about cross-contamination. The company that produced the neighbor’s corn seed has patented its product, restricting its use. If the grower’s corn intermingles with the neighbor’s, the organic farmer worries about being sued for copyright infringement.
In the U.S., a handful of companies produce and control most of the seeds farmers buy — the building blocks not just of food but of valuable commodities such as biofuels and ingredients in processed snacks and drinks. To protect their high-dollar investments, the companies patent their creations. Now, they own the vast majority of the industry’s intellectual property.
But the level of concentration can cause problems for farmers and independent seed breeders, the Biden administration’s USDA contends. Over the past couple years, the agency has studied consolidation-related issues, and, in October, it announced a new “framework” — in partnership with the U.S. Patent and Trademark Office — to start addressing them. Much of it focuses on the seed industry’s IP being in a few hands.
“We have to wait until they’ve planted, then wait a few weeks to sow our own corn,” an organic farmer told the U.S. Department of Agriculture in a public comment recently. “If they are late in their sowing, there may not be enough time left for us to get a crop.”
While the framework does not force any new requirements on the seed industry — one expert called it “weak sauce” — it demonstrated the Biden administration’s priorities. However, with Donald Trump returning to the Oval Office, its future is in question. During his first term, Trump oversaw three mergers that further consolidated the seed industry.
To small farmers and breeders, determining whether a seed or a seed trait is legally protected is so difficult it can be like a “minefield,” the USDA said. The framework hopes to boost the patent system’s transparency so farmers and breeders can make more informed choices.
The person behind the USDA framework is Andy Green, the USDA’s senior advisor for fair and competitive markets. Before joining the agency, he worked at the left-leaning Center for American Progress.
In an interview before the election, Green said the framework was a balancing act: IP rights are important to spur innovation, but concentration can curb the amount of choices consumers — in this case, farmers and plant breeders — have in a marketplace.
“We have to open up that market,” he said. “Making sure that the system really works for the benefits it’s supposed to deliver and doesn’t actually limit competition, limit choice, is really the heart” of the agency’s framework.
Crops’ growth depends on several factors, including the region’s environment and weather. Many farmers used to cultivate their own varieties that worked best for their individual circumstances. Now, because just a few companies produce most seeds, many of the same seeds — with the same traits, typically pesticide resistance — are used widely.
By trying to expand the choices farmers have, the USDA is trying to expand genetic diversity, Green said. Some research shows genetic diversity is vital to maintaining healthy crops.
“This is about food resiliency,” he said. “If we have too much concentration and not enough diversity, you’re exposed to crop collapse. You’re exposed to real, serious problems that competition and research can help address and prevent.”
In a 2023 letter to the USDA, the patent office said it “look(ed) forward to continuing to collaborate” with the agency on seed-related patent issues, including examining ways to promote competition in the seed industry.
The patent office said it would not comment on what would happen to the collaboration with the USDA once the new administration takes over. The USDA did not respond to a question about the new administration and what it meant for its framework.
The American Seed Trade Association, an industry advocacy group, said a strong IP system is essential to protect company investments. It said it was “seeking clarification” on the agency’s “goals and expectations.”
“Seed production is a high-risk, research- intense investment, during which seed companies are subject to the same unpredictable environmental and economic pressures that all crop farmers face,” Andy LaVigne, the association’s president and CEO, said in a statement. “This long-term investment is enabled by the fair implementation of strong IP protection.”
Four companies control most of the seed industry’s IP, according to USDA research published in 2023. They also control large swaths of the pesticide industry:
BAYER. In January 2017, before Trump was sworn in, the then-CEOs of Bayer, the German conglomerate, and Monsanto met with the new president. Bayer promised its merger with Monsanto would lead to more U.S. jobs. In 2018, the merger was completed.
CORTEVA AGRISCIENCE. In 2015, Dow Chemical and DuPont, two major chemical companies with agricultural interests, agreed to merge and split into three different ventures. In 2017, the Trump administration approved the merger, and Corteva — formed from the agricultura businesses of Dow and DuPont — was born. Dow’s CEO was an advisor to Trump during his first term.
CHEMCHINA. During his first term, Trump repeatedly took rhetorical aim at China, and he started a trade war with the country. Despite that, the Trump administration signed off on the China state-owned company buying Syngenta, based in Switzerland, in 2017. The company still operates in the U.S. as Syngenta.
BASF. In 2017 and 2018, the German-based chemical company bought assets from Bayer. Bayer had to divest from the assets because of its Monsanto acquisition.
Bayer, Corteva and Syngenta did not return requests for comment on the USDA’s framework. In a statement, BASF said it “believes that a strong and fair patent system is crucial to provide protection for innovations and to support returns on investment in research and development.”
In a public statement to the USDA while it researched its 2023 report, Corteva said, “Strong and enforceable IP protection incentivizes and safeguards U.S. investment.” Because seeds are “self-replicating,” they are “especially vulnerable to misappropriation,” perhaps particularly from foreign competitors, Corteva said.
The industry has dealt with competitors attempting to steal its valuable IP — creating a new seed variety can involve about a decade of research and development and hundreds of millions of dollars.
In 2016, a Chinese national was sentenced to three years in prison for stealing seeds from corn fields in Iowa. The seeds belonged to Monsanto and DuPont Pioneer, now Corteva. In 2023, Corteva sued a competitor that it alleged stole its seeds, made slight genetic modifications and then sought U.S. patents.
Farmers have also faced company lawsuits. In 2005, the Center for Food Safety, which advocates against industrial agriculture, produced a report, “Monsanto v. U.S. Farmers,” detailing the company’s use of litigation. In 2023, Bayer sued four Missouri farmers for allegedly saving seeds and replanting them the following year. Typically, farmers buy new seeds each year, and saving seeds would have violated the user agreement.
Because the companies own seed and pesticide patents, they often sell their products together. For instance, Monsanto and BASF sold the herbicide dicamba and, along with it, soybean seeds that were resistant to dicamba. The herbicide would drift and damage non-resistant crops. Monsanto used it as an opportunity to sell more: Salespeople were told to push “‘protection’ from your neighbor.”
Bill Freese, the science director at the Center for Food Safety, said having companies that control both seeds and pesticides leads to research that mostly focuses on developing seed traits that make crops resistant to herbicides.
For example, crops that were resistant to glyphosate — the active ingredient in Roundup, Monsanto’s popular weed killer — led to a huge increase in glyphosate use. In turn, weeds developed resistance to glyphosate, Freese said. Monsanto responded by engineering crops resistant to other herbicides, such as dicamba. This caused “a toxic spiral” of increasing herbicide use and weeds resistant to multiple chemicals, Freese said.
“The management practices they encourage with farmers lead to increased use of herbicides and very rapid evolution of resistance,” Freese said. “That, in turn, provides market opportunities for the companies to develop new crops that are resistant to additional herbicides.”
Seed industry turns to patents
Patenting seeds was not always the norm. Some have argued seeds are an “unnatural fit” for the patent system, given how they are grown and the long history of mostly unfettered seed breeding.
In 1930, following industry lobbying, Congress allowed some new plant varieties to be patented. But “the USDA stood for farmers and said, ‘No, this will only apply to a narrow subset of plants,’” Freese said. Excluded plants included staple crops, such as wheat and potatoes. The idea was to maintain farmers’ ability to breed because there was a “broad public interest” in preventing a handful of seed companies from dominating the genetic material vital to the nation’s food security, he said.
“That was the attitude a century ago,” Freese said. “Today, we’re in completely different territory.”
The industry continued to pressure the government to allow breeders to control their creations. In 1970, Congress greenlit legislation implementing “plant variety protection” certificates. Administered by the USDA, the certificates — still in use today — protected ownership. However, they also allowed farmers to breed with the protected seeds so they could develop varieties that fit their particular situation.
In the following decades, a series of Supreme Court rulings expanded how patents could be applied to seeds. Two cases involved companies that now control most seed IP: Pioneer, now owned by Corteva, and Monsanto, bought by Bayer.
By 1990, patenting seeds was still uncommon. That year, the top four firms controlled 41% of corn seed patents, and Pioneer owned 38%, according to USDA research.
Then, the industry started creating genetically modified seeds, which promised higher yields and more efficiency. There was more investment to protect.
Now, the top four firms own 97% of the patents for canola seed, which is used to produce cooking oil; 95% for corn; and 84% for soybeans. All are valuable cash crops.
USDA recommends patent office review disclosures in patents
The USDA’s new framework approaches seed industry concentration in three ways, Green said.
First, in a move announced in October, the USDA recommended the patent office review necessary disclosures in seed patents. In its 2023 report, the agency found seed patents do not always contain all of a variety’s breeding history — that is, a full accounting of how a particular seed was created, usually over many years.
The disclosures would help farmers and breeders understand what has already been legally protected, according to the USDA. That way, they know whether they should invest resources into developing new varieties.
The USDA also recommended the patent office review whether genetic samples related to seed patents should remain available for public access.
Understanding seed patents can be time-consuming and complex. Breeders and farmers likely do not have the resources to search through years of complicated patents to know whether something they’re working on is already patented.
The recommendations are intended to ensure that patents “benefit public knowledge” and ultimately provide more choice for farmers, Green said.
Green said the patent office has been an “incredible partner.” The patent office is serving the entire economy, while the USDA focuses on agriculture, he said. “They have incredible expertise, and I think they appreciate the expertise that we bring,” he said.
It’s unclear how a Trump administration would handle the USDA and patent office’s collaboration. During his first term, he strengthened patents by making it more difficult to invalidate them, according to Law360.
USDA provides guidance on federal research on seeds
A second aspect of the new framework, also announced in October, is guidance on federal research.
If researchers that receive federal grants are unclear on whether their work infringes on copyright, the USDA encourages researchers to consult agency attorneys. In its announcement, the agency also confirmed that federal researchers can share their findings publicly. And the USDA encouraged private researchers facing questions on IP ownership to contact the agency.
The private sector conducts most research and development in agriculture now. Universities and government laboratories used to perform the lion’s share, but, since about 2010, private spending has outpaced public expenditures. Since 2002, public spending on agriculture innovation has decreased by a third, according to the USDA.
Still, the USDA plays a role in funding seed variety development. “The guidance that we put out is really about making sure that the research dollars are being fully utilized,” Green said. “There’s an interest in making sure that, when scientists encounter questions or challenges with a patent, they don’t stop their research.”
Universities obtain what’s called germplasm — the seed’s genetic material — to conduct research. They can source from public seed repositories, or they can work on varieties that are no longer covered by patents.