As an associate professor and extension specialist in the Department of Plant and Agroecosystem Sciences, Julie Dawson studies plant genetics and breeding as well as organic agriculture. For part of her work, she connects plant breeders, farmers, and chefs through the Seed to Kitchen Collaborative (see Breeding for Flavor, Grow, summer 2016). In that role, Dawson sees firsthand how changes in the landscape of the seed industry, which affect access to seeds, can help or hinder independent breeders and growers. And that background has made her uniquely suited to help address a major area of concern in agriculture.

In early 2021, an executive order to study the effects of competition in the seed industry arrived at the doorstep of the U.S. Department of Agriculture (USDA). Dawson, who is also the Clif Bar and Organic Valley Chair in Plant Breeding for Organic Agriculture, was chosen to lead development of a report. She worked with a team of experts to talk with agencies, research intellectual property rights, host listening sessions, and summarize their findings. The final report, published in March 2023, outlines concerns about intellectual property in the seed industry as well as suggestions and next steps, some of which Dawson recently discussed with Grow.

How has intellectual property been handled in the seed industry historically?
Early on, when the USDA was developed, a key part of its mission was to procure, propagate, and distribute new seeds and plants. But in the 1920s, the seed industry began to grow, and they pushed for the USDA to stop free distribution because it competed with the private sector. The industry also pushed for IP (intellectual property) protection because they felt, without it, there was no protection for their investment in creating new varieties. The Plant Patent Act [of 1930] and the Plant Variety Protection Act [in 1970] were developed to protect new varieties. Utility patents can cover a number of things, including varieties, traits, or breeding methods.

How have advances in seed breeding changed the landscape of the industry?
As seed breeding became more predictable and pure lines were developed in the mid-20th century, it became possible to develop uniform varieties. A small number of companies were able to rapidly adopt key technologies, and they took over a large share of the market. Over the last few decades, companies consolidated further as seed companies that owned traits [such as resistance to a disease] began to acquire companies that had valuable germplasm, such as adapted varieties and elite breeding lines. This led to companies controlling both the germplasm and the traits. Currently, there are three companies that own most of the IP on varieties in major crops, such as corn, soy and cotton.

How does the concentration of IP rights with a few companies affect the industry?
IP restrictions make research and breeding difficult for those who don’t hold the patents. Newer or smaller companies have a hard time competing in the market. Also, independent seed companies have limited options to offer to farmers. What we heard from public comments was that it is hard for an independent company to get a license for corn varieties unless they also carry soybean varieties from the same larger company and that it’s hard to stay in business if they don’t have a license from one of the big three companies. If farmers want seeds from two different IP owners, they have to use different dealers, but that can cost more. The current IP licensing options are not going to keep independent seed companies in business. We wanted to highlight in the USDA report that the current situation is such that the IP owners control enough of the market that they are able to set the terms of licenses in ways that are favorable to them.

As the seed industry and private sector have undergone this concentration, what has changed for universities and public programs?
Over the course of the last century, investment in agricultural research has not grown in real dollars in the public sector, while in the private sector it has grown a lot. Infrastructure like research stations and programs that are supported by state and federal funding have not been maintained. So, a lot of the small companies aren’t able to carry varieties from the public sector as much as they used to, and these public releases were an important source of support for independent seed companies.

A lot of public sector institutions have also gone through several rounds of consolidation to the point where very few full plant breeding programs now exist. With decreasing investments in universities, those institutions don’t replace plant breeders. And once you stop a program, the plants and the germplasm die. You can’t restart those programs easily.

The capacity to provide varieties to farmers has shifted to the private sector and consolidated, so we’ve lost some of that infrastructure that can support a diverse range of seed businesses. That’s a food security issue.

Why is that loss of infrastructure a food security issue?
It’s better for farmers to plant varieties that are adapted to their location, so those varieties need to be available. Those varieties will be more adapted to the stress, pests, and pathogens they are likely to face and, thus, more likely to perform well in that region. Also, concentration of the production of a crop in one region puts it at higher risk of failure if there is a drought or other disruption.

While the private sector can produce regionally adapted varieties, with consolidation there has been a trend to focus on larger volume crops and growing regions. Decentralizing variety development and seed production builds more resilience into the system. To do this, we need regional infrastructure, and the land-grant system has historically been a large part of that infrastructure.

What recommendations are made in the report to address some of these concerns?
The goal of this isn’t to say we shouldn’t have IP for seeds. We just need IP that works in a way that doesn’t shut down competition. Often, people refer to the Plant Variety Protection Act as a model that really worked to promote competition. That act allows the breeders to recoup investments on a variety but doesn’t exclude others from building on that innovation.

We need to allow people to have space to operate and ensure that utility patents are only issued when an innovation meets all the requirements of utility patents. We also want to ensure that private and public sector innovators can fairly compete based on the merits of their varieties. If you have a great variety, you should be able to get it to farmers. You shouldn’t need to negotiate a system where no one can carry your variety because they’ve signed a license with a larger company that restricts their ability to deal with you as a small business.

And third is ensuring we have a resilient seed system so we have the infrastructure and capacity to really provide varieties for all farmers. This has historically been in the public sector with foundation seed programs, pre-breeding, and cultivar development that supported independent seed companies.

What are the next steps now that the report has made recommendations?
Trying to implement some of these recommendations takes a lot of dissecting them and seeing what would require new legislation, what would require new agency regulations, and what could be done with existing laws, so we have an interagency working group looking at these issues. Within the USDA, there’s a new Farmer Seed Liaison initiative. It’s a cooperative agreement with UW–Madison, but the goal is that it will eventually be a more permanent program within the USDA.

Another goal is to provide a resource that improves the transparency of IP. It’s hard for seed companies and researchers to find what’s available to work with. Without an attorney, it’s hard to figure out how to get a utility patent if you want one.

We also want to be sure that independent seed companies, farmers, and plant breeders are involved in discussions around IP. The Farmer Seed Liaison will work to get more voices into the conversation, particularly in discussions with other federal agencies.

Finally, getting access to germplasm for research and breeding is critical to allow breeders and innovators to continue to build on what’s been done before. We’re looking at ways that we can ensure that there is research access. And we’re looking at how to develop more cultivars in the public sector that will be available for continued research and breeding to ensure that innovation continues.