Ongoing Debate Over Terminator Technology, The

Georgetown International Environmental Law Review, Summer 2007 by Caplan, Richard

I. INTRODUCTION AND OVERVIEW

This paper discusses efforts to commercialize sterile seed technology, a genetic use restriction technology ("GURT") dubbed "Terminator technology" in 1998 with the approval of U.S. patent 5,723,76s.1 Terminator technology, developed through a joint public-private partnership between a then little-known cottonseed company and the United States government, would make saving and replanting seeds to harvest a biological impossibility. Since its discovery, the Terminator patent and other related GURTs have been fought vigorously by civil society with some success. However a March 2006 vote at the eighth Conference of the Parties of the Convention on Biological Diversity to lift the global moratorium on open air field testing of the technology-which has been in place since 2000, before any such testing occurred in the open environment-portends a change in the oversight and potential use of GURTs.

The vote is a sign of the seemingly unrelenting struggle of the global biotechnology industry, aided particularly by the U.S. government, to gain commercial approval for a technology that would result in the permanent enshrinement of intellectual property protection for its seeds. Genetically engineered crops present unique and significant risks to human health and the environment, and compounding the potential for harm with a technology that may exacerbate the problem would be a serious mistake. Whether or not Terminator technology is commercially approved will have enormous significance not only for the lives of the 1.4 billion people who depend on saving and replanting seeds,2 but also for those who care about the integrity of our agricultural system and its impact on the world's environment and peoples.

II. THE EVOLUTION OF SEED OWNERSHIP IN AGRICULTURE

Plants are now bred and cultivated for reasons such as increasing yield, improving disease resistance and drought tolerance, easing harvest, and improving taste and nutritional value. But for thousands of years, efforts to produce crops with greater benefits, even when successful, were conducted without a full understanding of the scientific basis for such improvements. Even Gregor Mendel, the Augustinian abbot often called the father of genetics for his 1865 article on the inheritance of traits in pea plants, "was not interested in what went on inside them."3 Instead, Mendel was concerned with the outward appearance, or phenotype, of the plants, rather than their genotype. It was not until the early 20th century that the importance of Mendel's ideas was realized, and only in 1909 was the word "gene" coined by German scientist August Weismann.4

After thousands of years of human intervention and the beginning of an increased scientific understanding of agricultural genetics, tension between farmers keen to find productive varieties through cultivation and reseeding and various institutions eager to sell farmers seeds each season began to rise. Throughout the first 9,000 or so years of farming, anyone could save and replant seeds, taking the best varieties and further refining their adaptability to local conditions such as soil, climate, and pest population. For example, in 1860, five years before Mendel published his paper, a Major Hallett warned farmers that any abuse of his "pedi-gree" trademark for cereals would be "severely dealt with."5 But Hallett's seeds were not patentable and thus there was little he could do to keep farmers from doing what they had always done: buying his wheat variety, planting the seeds, saving the best seed for next season, and continuing to improve the variety by adapting it to local conditions.

Research by geneticist George Shull provided the basis for the development of "hybridization," the crossing of two plant varieties that could be used to keep farmers from saving and developing their own seeds.6 Henry A. Wallace, who started Pioneer Hi-Bred and would eventually serve as both secretary of Agriculture and Vice President of the United States, did not commercialize the first hybrid maize until 1924.7 Farmers quickly adopted the new technology, beginning for many the movement away from saving and replanting seeds, instead depending on institutions for new germplasm each year. This process occurred with tremendous rapidity, and hybrid corn sales now make up 95% of the U.S. market.8 Farmers initially bought hybrid corn seeds because they were led to believe that the yields from hybrids would be greater and the plants would be more vigorous. This change occurred despite the fact that scientists still do not clearly understand genetic principles of "hybrid vigor"9 and criticism that the only advantage to hybrids lies in their profitability for companies.10 These new hybrid plants were not patentable when first created because they were not "amenable to the written description of the requirement of patent law."11

The desire of private seed companies to control the purchasing habits of farmers stands as somewhat self-evident. Traditionally, farmers spent little or no money on seeds, but if they believed new seeds would produce benefits, primarily higher yields, they could be convinced to spend more money. A seed market could be created and maintained, assuming that science could both reveal more about the biology of seeds as well as produce results in the form of enough new benefits that farmers would be willing to pay for new seeds instead of replanting old ones. This is more likely to be true in the United States than elsewhere, because in many developing countries farmers cannot afford to buy seeds and instead must rely on saving and replanting seeds.12 Regardless, seed companies were aided greatly in their goal of developing seed markets with major scientific breakthroughs, as discussed below in section III.