Elias Lyberogiannis is a JD candidate at Osgoode Hall Law School and is enrolled in Professor Ikechi Mgbeoji’s Patents class in Fall 2011. As part of the course requirements, students are asked to write a blog on a topic of their choice.
I recently came across the research paper by Paul J. Heald and Susannah Chapman entitled Veggie Tales: Pernicious Myths About Patents, Innovation, and Crop Diversity in the Twentieth Century.1 The article is yet another attempt to analyze whether the patent system is beneficial or detrimental to a particular field. The particular field in this case is vegetable crops and the authors try to settle a debate between (1) economists on one side who “assume that patent law stimulates innovation, [and] result[s] in increased diversity of goods”, and (2) ethnobotanists on the other who “have long argued that patent law leads to monoculture, genetic erosion, and diminished crop diversity”.2 After conducting their research, the authors conclude that, “[b]oth sides appear to be wrong…patent law has not reduced crop diversity, nor has it significantly contributed to the introduction of new varieties”.3
Patent protection of plants in the United States dates back to the Plant Patent Act of 1930 and includes the Plant Variety Protection Act in 1970 and the USPTO’s acceptance of utility patents on plant material in 1985.4 With this in mind, the authors conducted detailed and thoughtful research into the number of crop varieties available in 1903 (i.e. well before 1930) and the number available in 2004 (i.e. well after 1985), together with the number of patent rights granted. For example, the authors found that there were 107 varieties of lettuce commercially available in 1903 and that the number had increased to 520 in 2004.5 They also found that there have been 52 utility patents granted for lettuce varieties. Similar data was collected for over 40 vegetables and the data revealed some interesting findings.
One of the interesting findings is that vegetable crop diversity has not been diminished and is in fact as strong as ever. Beneath this finding is a story where 94% of the varieties available in 1903 were no longer available in 2004.6 Instead, they had been replaced by other newer varieties. This tremendous level of replacement suggests that there has been much innovation in the field of vegetable crops.
A second interesting finding is that the patent system has played “no significant role” in the innovation of vegetable crops. On average, only 3.8% of crop varieties (excluding corn) available in 2004 were the subject of patents.7 The authors do acknowledge that for particular types of crops, the percentage is higher. For example, the percentage jumps to over 10% for vegetables such as beans, lettuce, and peas. A 10% statistic suggests that the patent system has played a more significant role than the average statistic suggests.
A third interesting finding is that for one crop in particular, “patents seem to play a much more prevalent role”.8 That crop is corn and the statistics show that 675 utility patents have been granted for corn.9 This is a tremendous number when it is compared to the only 242 varieties of corn that were commercially available in 2004 (i.e. 279%). The authors of the paper examine corn’s story in some detail but are ultimately unable to come to a conclusion on how much of an impact the patent system has had on innovation in the “corn field”. On the one hand, it is possible that innovations in corn are like those in pharmaceuticals, which are very expensive to produce and likely would not be produced without the patent system and its promise of a limited monopoly. On the other hand, it may be that corn is being patented for defensive reasons (i.e. to protect an ability to seek “rent”) and that the patent system is not stimulating innovation. The authors cannot conclude one way or another and end by saying that more evidence is needed before truly knowing how the patent system has influenced the complex corn market.
In summary, the research paper by Paul J. Heald and Susannah Chapman is a focused examination of the patent system in the field of vegetable crops. Their research indicates that the patent system has neither adversely impacted nor significantly increased crop diversity. Those of us who have followed the research of policy rationales for the patent system will not be surprised by the findings. Papers and studies have arrived at similar conclusions for over 50 years. For example, the authoritative study of Professor Fritz Machlup for the US Congress back in 1958 stated, “none of the empirical evidence at our disposal and none of the theoretical arguments either confirms or confutes the belief that the patent system has promoted the progress of the technical arts and the productivity of the economy”.10 The patent system is not a panacea that will result in a flood of innovation. If it was, we would probably be concerned for different reasons (i.e. is the bargain between state and inventor too good) but that is a topic for another post or paper. Although Head and Chapman state that patents play “no significant role” in vegetable crop innovation, I suggest that the role is not insignificant.1 Heald, Paul J. and Chapman, Susannah, “Veggie Tales: Pernicious Myths About Patents, Innovation, and Crop Diversity in the Twentieth Century” (September 16, 2011), Illinois Program in Law, Behavior and Social Science Paper No. LBSS11-34; Illinois Public Law Research Paper No. 11-03. Available online at SSRN: <http://ssrn.com/abstract=1928920>.
2 Ibid, at 6-7.
3 Ibid, at 2.
4 See 35 U.S.C. § 161 et seq., which provided a patent right in the invention or discovery and asexual reproduction of any new variety of plant; 7 U.S.C. § 2321 et seq. conferred protection on new and distinctive sexually reproduced plants; Ex parte Hibberd, 277 U.S.P.Q. 443 (1985) held that plants were within the meaning of
“manufacture” or “composition of matter” and therefore capable of receiving utility patents.
5 Supra note 1 at 35.
6 Supra note 1 at 26.
7 Supra note 1 at 36.
8 Supra note 1 at 49.
9 Supra note 5.
10 Fritz Machlup, U.S. Senate Subcommittee On Patents, Trademarks & Copyrights, An Economic Review of the Patent System, 85th Cong., 2nd Session, 1958, Study No. 15 at 79, Available online at Mises Institute: <http://mises.org/etexts/patentsystem.pdf>.