Mind the patents when growing soybeans or stem cells

Author: Paul Krzyzanowski, 06/06/13
GMO soybeans might have lessons for cell patents. Photo: Philip Dean via Flickr

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At first glance, you wouldn’t think that a 76-year old soybean farmer from Indiana would have something in common with microbiologists, but Vernon Hugh Bowman brought back memories of my undergraduate genetics courses and growing E. coli on antibiotic-laden petri dishes.

It’s a slightly convoluted case, but the outcome of Bowman’s US Supreme Court case regarding Monsanto and its rights over seed patents recently made the news, with the Court affirming that the company’s rights over genetically modified soybeans extend to subsequent generations of seeds, even after their initial sale.

Monsanto’s genetically modified “Roundup Ready” soybeans are resistant to the herbicide glyphosate, and farmers who purchase them are permitted to use the second generation of soybeans as animal feed or to sell as a commodity. Replanting is prohibited, and presumably commodity seeds, which are Roundup Ready soybeans valued for their nutritional content and not their growth trait, are literally lost in the mix with wild type soybeans.

Bowman, being clever, purchased soybean seed mixes from a commodity seed grower, planted them all and treated the fields with glyphosate, leaving only glyphosate-resistant plants behind to yield seeds for subsequent planting.

He did this not once, but for eight seasons.

To anyone with lab experience, Bowman’s process was a textbook selection experiment for soy plants that are Roundup Ready, and hence carry functional copies of Monsanto’s genetic modifications. And yet despite Bowman’s quite obvious intent to evade paying Monsanto for Roundup Ready seeds, some people are rallying to raise funds to cover his fines as they see the conflict as a David versus Goliath struggle.

Cells are the ultimate self-replicating product.

Though the central issue was whether Monsanto retained rights over derivative seeds, the more specific argument made by the company was that “in the case of self-replicating technologies the patent extends to the technology, here, the trait of herbicide resistance, rather than the seed itself.”

Recognizing this, the US Supreme Court states that not all self-replicating products fall into the same category as Roundup Ready seeds:

Our holding today is limited—addressing the situation before us, rather than every one involving a self-replicating product. We recognize that such inventions are becoming ever more prevalent, complex, and diverse. In another case, the article’s self-replication might occur outside the purchaser’s control. Or it might be a necessary but incidental step in using the item for another purpose.

By this point, you probably think we’ve entered a grey zone with farming technology, but consider the world of cell-based technologies. To me, “self-replicating products” immediately bring stem cells and cell cultures to mind, much more so than seeds.

Cells are the ultimate self-replicating product.

As a unique case of cells, stem cell patentability has a volatile history with problems stretching back over the last decade, starting in 2001, when the issue of stem cell patentability was raised by a patent held by a University of Wisconsin foundation.

Several patents known as “the WARF patents” were believed to cover all uses of human stem cells in the United States including patent #6,200,806 as a general claim over human embryonic stem cells. Debate over whether the patents were valid continued until 2008, when the US Patent and Trademark Office upheld them. But that wasn’t the end of the debate. In 2010, WARF patent over primate stem cells was overturned as the discovery was deemed obvious in retrospect.

At the time, Ubaka Ogbogu, writing on this blog, summarized the controversy very well, observing that even non-US researchers need to remain interested in the to and fro of patentability in the United States market since it’s the primary market for many inventions.

…after many years of work, would you want patent holders blocking use of your new technology…?

Most significantly, the Monsanto seed case illustrates very clearly that traits created by defined genetic modifications are patentable and will be protected. I would argue that that includes modifications to mammalian cells that induce pluripotency, control stemness by controlling symmetric division, predispose pluripotent stem cells to particular cell lineages, or even something as simple as expressing a cell marker.

This case also illustrates the possible patent problems academic researchers might encounter if their technologies depend on traits engineered into cells used in their work.

Most new biotechnology develops over periods of time much longer than the soybean growing cycle, so after many years of work, would you want patent holders blocking use of your new technology, be it arbitrarily or economically with licensing fees?

Patents themselves are generally required for a functioning innovation system, as I’ve written before, but in the result there’s a growing need to be aware of intellectual property issues on tools used in research. The patent landscape needs to be considered if the fruits of scientists’ work are intended for real-world applications.

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Paul Krzyzanowski

Paul is a computational biologist and writer living in Toronto. He's been a contributor to Signals for three years, writing articles for the general public about how biotechnology and biomedical research can be used to solve pressing medical problems. Alongside Paul's experience in computational biology,
 bioinformatics, and molecular genetics, he's interested in how academic research develops into real world, commercial technology, and what's needed for the Canadian biotech industry needs to grow. Paul is currently a Post-doctoral Fellow at the Ontario Institute of Cancer Research. Prior to joining the OICR, he worked at the Ottawa Hospital Research 
Institute and earned a Ph.D. from the University of Ottawa, specializing in computational biology. And finally, Paul earned an H.B.Sc. from the University of Toronto a long time ago. Paul's blog can be read at www.checkmatescientist.net
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One Response

  1. Paul Knoepfler says:

    Great piece, Paul!
    Also important to mention in this context is the patent arena for iPS cells, which is quite complex. It is likely to have a major impact on clinical applications of these very exciting cells. Here’s my overview on that:

    http://www.ipscell.com/2013/05/putting-the-ip-in-ips-cells-patent-war-looming/

    Paul

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