Big Agriculture Problems #2: The Plow and the Patent

Big Agricultural Problems #2: The Plow and the Patent

The Plow:

Ahh, the plow. The mere act of uttering this simple word creates a world of sleek wooden lines, roughened from labor. It is the simpleness of a man and animal coming together to work the land, the push and pull of human and nature exemplified by the quick passes through hard dirt. The smell of new earth in the rising sun, only to give way to a glorious spring morning…the image certainly lifts my spirits. Perhaps there are dandelions near here, and the seeds gently float across the farmer's vision, gently landing on…a huge metal machine with knives on sticks?

Oops, for a second there I lived in a world were plowing was an act of communing with nature, instead of a horrible, no good, very bad act that kills the long-term fertility of the soil. Sorry folks, that’s on me.

The reality of plowing, and other tilling practices, is far from bucolic. The plow is traditionally used to turn and open soil, break up weeds and roots and incorporate soil residues and organic matter.[1] And it does all these jobs quite well. No-fault for that. However, doing these jobs well means also ripping apart the layer of topsoil, the most important and nutrient-dense layer for plants. Disturbing the soil structure in this way has some big consequences: it disturbs the carbon layer and soil structure, the microorganisms in the soil, and causes mass amounts of erosion. Okay, so that’s a lot of bad things. Let’s tackle them one at a time, shall we?

1. Carbon layer disturbance, with a side of structural failure!

In order to grow and thrive, plants need an ample amount of carbon in the soil.

“Wait!” I hear the peanut gallery saying, “Wait, I thought that plants needed

carbon dioxide to grow…. you know, carbon from the air?”

Yes, well-done peanuts, that is correct. Plants do need carbon dioxide, to convert it into energy and organic matter. The carbon in the soil is just as important but serves a different role. Organic carbon in soil is incredibly important for soil structure, increasing the physical stability of the soil. Carbon in the soil helps aerate it and improves water drainage and retention, which again improves the stability of the soil.[2] It also reduces the risk of erosion. When a plow is dragged through the soil, it mixes the carbon in the topsoil deeper into the ground, slowly deflating the soil stability. If this happens once or twice, it may not be a big deal.[3] Just like repairing a broken support beam in a house can be repaired, carbon can be restored to the soil. However, if plowing happens year and year, and the soil is never given the chance to recover, it will become compacted and hard, with limited structure and support for plants. Imagine if instead of repairing a broken beam, every year you slowly cut another one. Over time, your house would collapse. There would be less air, less space, and it would develop a tendency to flood. The same thing happens to the soil without carbon. Plowing takes away some of the top-level carbon and renders the soil structure untenable.

2. The death of microorganisms ☹

Picture this: you are very, very small, and you live in soil as a microorganism, happily processing nutrients and improving soil quality and fertility. One day, you are chugging along, munching on some tiny particles of nitrogen, and a huge metal shaft violently rips you away from your patch of dirt and deposits you at random somewhere else. Ouch. Welcome to the life of a microorganism in a tilling system.

Microorganisms are incredibly important for soil fertility. Sometimes referred to as “the cows underground” these hard workers break down crop residue and cycle important nutrients, such as nitrogen, potassium, and phosphate, into the soil so they are available for plant use. Good, healthy soil includes a diverse array of microbic communities that contribute to this process and improve the soil, so much so that enzymatic activity levels are commonly used as a stand-in for soil health. The more activity, the healthier the soil. With tilling and plowing practices, the microbes are being highly disturbed, resulting in less activity, and unhealthy soil.[4] In comparison, no-till soil is very active, resulting in healthy microbes, healthy soil, and healthy plants. Again, this makes sense, with no plow to disturb it, the community of microorganisms is allowed to thrive and work in peace, bringing lasting peace to the world. Jk. But they do build healthy soil.

3. Erosion

Erosion wants to kill you. It also wants to kill me, so don’t feel special or anything. Erosion is sneaky. It happens gradually, over years and years, and then one day you look around and the entire layer of topsoil has disappeared from the United States. Well, not the entire layer. But enough it to scare you. In each given year, the world loses over 24 billion tons of soil. 24 BILLION TONS. It’s literally too much to properly comprehend. In the United States, soil erosion is linked to the degradation of land, oceans, and freshwater, along with a decrease in agricultural productivity.[5] It is dangerous for the environment as sediment washes away helpful microbes and nutrients into streams and other sources of groundwater, removing them from field and farms. The washed-up soil can no longer be used for crops, and often results in unhealthy local waterways. Over the next 50 years, there is potential for erosion to increase by as much as ten percent.[6]

Three guesses as to what causes a vast majority of this dreaded erosion? If you needed three, I truly feel that you should reread this article. For all those who only needed one, congrats! You’re right, it is plowing. Our old enemy, the plow, is responsible for the slow-killer, erosion. The primary purpose of plowing is to break up and loosen topsoil in order to plant more effectively. However, the loosening of soil, in addition to the two negative effects discussed above, also leads to the degradation of soil stability. Plowing rips of the roots of weeds and other plants, which serve as a sort of glue for soil. Without these roots to bind it, and with it being already loose and exposed to the elements from the plow, the soil washes away in any type of wind or rain. This extended soil loss will, and some say already has, result in decreased agricultural potential.[7]

The Patent:

I’m not going to lie; I don’t have a cute story for patents in the way I did for the plow. This is because patents are complicated, confusing, and throughout my research for this section, I repeatedly and fervently thanked my parents for fostering my critical reading skills. Basically, the deal is this: Large aggrotech companies, such as the German firm Bayer or the U.S firm PepsiCo, often develop specific lines of agricultural crops that are the best for their products. For example, PepsiCo, who owns Lays, developed a type of potato called the FC5, which is a variety that specifically thrives in low moisture.

However, the development of these patents can result in restrictions on innovation.[8] This is where it gets tricky, so stay with me. In 2011, there was a law passed by Congress called the Leahy-Smith American Invents Act, often shorted to AIA. This seems great, right? Yay, more American inventions! Except no. Instead of fostering innovation, the passing of this act knee-caped it. There are a few reasons why the passing of this law did have that effect, but I am just going to talk about one of the most important ones for our purposes: the objection effect.[9]

The base structure of the AIA enables repeated objections of patent applications. Again, this may seem like not such a big deal — why shouldn’t the people be able to object to a patent that may possibly infringe upon their own? Except, again, no. In almost all cases of objections related to agricultural patents, it is not “the people” objecting. It is private sector companies, likely Bayer or PepsiCo, who drag patent appliers though expensive and exhausting legal battles, with the goal of stopping the patent. And if you are making new agricultural biotechnology, you don’t just have to worry about one of these companies objecting to your patent. No, all of the companies can object, and they can do it back to back. So, picture this: You are trying to develop a new drought-resistant seed. Finally, after years of research and failure, you made it! This seed will help feed the world’s population and help provide assurance that the entire planet may not starve because of climate change. You feel pretty proud. Time to patent your hard work and make sure that you get credit, and make sure that it is available to those who need it. Except…when you go to patent it, PepsiCo raises an objection. It seems to them like your drought-resistant seed is too similar to one of their drought-resistant seeds.

“But I developed it completely separately.”

Doesn’t matter. PepsiCo has the right to drag you into court time and time again, forcing you to pay exorbitant fees for even the chance of getting a patent. But let’s say that you do. You, the little guy, fight off PepsiCo’s objection, and can move forward with your patent! What a relief, you think. Until the next day, when you learn the Bayer has raised an objection to your seed. That horrible, long, expensive fight you just won with PepsiCo? Yeah, you have to go fight Bayer too. Tell me, just how long do you think you could get funding for? How long will your university or company continue to support you? I’m guessing not as long as Bayer. Or the next one that will object. Or the next one. Eventually, you run out of funding, and you have to shelve your seed. Your university or company tells you to focus on something other than new agrotechnology or crop development. The legal battles are just too much.

Now, that was a hypothetical scenario. But it does illustrate my main point here quite well: the objection effect as produced by the AIA restricts agricultural innovation. This is creating an innovation bottle-neck effect, where there are only two current technologies that are used to transform plants, and both patents for them are held by the private sector.[10] The description above illustrates why there aren’t more. The objection effect doesn’t just apply to agrotechnology or plant transformation technology, it also applies to the patented crops themselves. The restriction of genetic patented materials results in a minimization of biodiversity. In the 21st century, partially due to patent objections, the available pool of genetic material is slowly becoming more and more constrained, and genetic diversity is lost. This loss of genetic diversity could lead to crops becoming more susceptible to drought and pests, as the “resistant” strains slowly prove to be less and less resistant. In addition, these patents force farmers to depend on seed banks, and seed providers, instead of harvesting and growing seeds from the leftover harvest, for fear of accidental patent infringement. This keeps the farmers reliant on companies like PepsiCo and Brayer, who sell the seeds at an upcharge.

I could go on to explain how the objection effect, and by extension the AIA, arguably contradicts Article VIII of the Constitution, but honestly, this blog is already long and confusing enough, so I will leave you with one last way that patents negatively affect farmers: companies can sue farmers for patent infringement if their patented crop ends up in the farmer's field.

It is very hard to control where all organic matter ends up. Many plants are spread by seed carriers or the wind, allowing them to travel far and wide. When some of these seeds happen to land in a farmer’s field and propagate with their existing crop, the company can sue them. In one such case, Bowman v. Monsanto, the company Monsanto sued an Indiana farmer over the propagation of their seeds. This case appeared in the Supreme Court in 2013, and the court sided with Monsanto.[11] This creates an unsettling legal precedent, allowing companies to sue farmers for patented crops in their fields, regardless of the amount. Monsanto has personally stated that it will not sue anyone who has less than 1% of the total crops in the field be Monsanto crops, but that is not backed up by legal enforcement, so it basically means nothing.

Overall, agricultural patents are, at minimum, an overwhelming inconvenience to farmers, and at maximum, could starve us all by reducing biodiversity and restricting the genetic material (the DNA) of crops.

So, as I draw to the end of this laundry list of problems with conventional agricultural practices, I would like to offer some hope. Both issues I talked about today are solvable. Both the agricultural patent and the plow (and previously discussed horriblenesses), could soon emerge as ancient relics of a by-gone age, or be unrecognizably transformed by the future.

Next week, let’s talk about how.

With new fear of our patent system, and the slightly disturbing fact that I listened to “Play that Funky Music” by Wild Cherry on loop the whole time I wrote this blog post,

Ajah

P.S: One more thing about patent law because I simply couldn’t resist and also found it very cool to think about: patents in the U.S can’t apply to live things. You couldn’t go out and patent a tree, or a plant. Most agricultural patents are able to be patented because lab work in some way was used, and therefore the argument is that these new crops would have never occurred in nature, so they can be patented. However, some farmers and seed suppliers, mainly of organic seed companies, use selective breeding to create new plants. Selective breeding is when farmers or plant developers take two plants that both show the characteristic they like, such as two tall plants, and breed the two tallest plants together, to hopefully get tall offspring. They keep doing this over and over and eventually end up with a seed that will almost definitely grow into a tall plant. Replace the word “tall” with drought resistant, pest resistance, or whatever type of plant you want to make. This process takes a long time, but some organic seed banks do it to develop seeds that are hardier without being classified as genetically modified. So, as a result of this, there seems to be a much larger possibility for expansion in the organic seed market then the non-organic seed market. Just some food for thought. Pun intended.

[1] Creech, Elizabeth. “Park Your Plow: 5 Tips for the no -Till-Curious.” Nov 5, 2018. Farmers.gov. U.S Department of Agriculture. Accessed Sept. 23, 2020. https://www.farmers.gov/connect/blog/conservation/park-your-plow-5-tips-no-till-curious

[2] Corning, Eli, Amir Sadeghpour, Quirine Ketterings, and Karl Czymmek. “The Carbon Cycle and Soil Organic Carbon.” Cornell University Cooperative Extension 91, no. Agronomy Fact Sheet Series (2016).

[3] Comis, Don. “To Plow Or Not to Plow? Balancing Slug Populations with Environmental Concerns and Soil Health.” Agricultural Research (Washington) 52, no. 10 (Oct 1, 2004): 16

[4] Zuber, Stacy M. and María B. Villamil. “Meta-Analysis Approach to Assess Effect of Tillage on Microbial Biomass and Enzyme Activities.” Soil Biology and Biochemistry 97, (2016): 176–187. doi:https://doi.org/10.1016/j.soilbio.2016.03.011. http://www.sciencedirect.com/science/article/pii/S0038071716300190.

[5] Borrelli, Pasquale, David A. Robinson, Panos Panagos, Emanuele Lugato, Jae E. Yang, Christine Alewell, David Wuepper, Luca Montanarella, and Cristiano Ballabio. “Land use and Climate Change Impacts on Global Soil Erosion by Water (2015–2070).” Proceedings of the National Academy of Sciences 117, no. 36 (2020): 21994–22001.

[6] Quine, Timothy A. and Kristof Van Oost. “Insights into the Future of Soil Erosion.” Proceedings of the National Academy of Sciences 117, no. 38 (2020): 23205–23207.

[7] Montgomery, David R. “Soil Erosion and Agricultural Sustainability.” Proceedings of the National Academy of Sciences 104, no. 33 (2007): 13268–13272.

[8] Schimmelpfennig, David. “Agricultural Patents: Are they Developing Bad Habits?” Choices: The Magazine of Food, Farm and Resource Issues 19, no. 1. American Agricultural Economic Association. (Mar 1, 2004): 19–23

[9] “Objection effect” is my word for the phenomenon that results from this bill, and as far as I know it has not been used in kind of formal setting or legal paper.

[10] Schimmelpfennig, David. “Agricultural Patents: Are they Developing Bad Habits?” Choices: The Magazine of Food, Farm and Resource Issues 19, no. 1. American Agricultural Economic Association. (Mar 1, 2004): 19–23

[11] “Bowman V. Monsanto.” IIC — International Review of Intellectual Property and Competition Law 44, no. 6 (Sep, 2013): 721–723. doi:10.1007/s40319–013–0083–9.