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Time's up for trait patents

Gil Gullickson 02/14/2013 @ 1:49pm Crops Technology Editor for Successful Farming magazine/Agriculture.com

Excitement rivaling the start of an Olympic 400- meter dash often accompanies new product introductions by agricultural companies. That was the case when biotech's golden boy, Roundup Ready 1 soybeans, debuted in 1996.

“I can't tell you how nervous I was when I first sprayed Roundup (glyphosate) on Roundup Ready soybeans,” says Ray Gaesser, a Corning, Iowa, farmer and first vice president of the American Soybean Association (ASA). Gaesser's nerves – like those of nearly all other farmers –were calmed when the system proved its convenience, simplicity, and excellent weed control. Sparkling weed control resulted with just two postemergence glyphosate applications.

“The technology worked and transformed agriculture,” he adds. Today, 94% of U.S. soybean plantings contain a herbicide-tolerant trait that is mostly Roundup Ready.

Clock is ticking for biotech patents

Eventually, though, even golden boys lose their luster.

The first glyphosate-resistant weed surfaced in Delaware in 2000. Glyphosate-resistant weeds soon multiplied across the Midsouth and Midwest. Another twist in this scenario begins after the 2014 growing season. That's when the Roundup Ready 1 trait loses patent protection after 20 years.

Monsanto does not intend to enforce varietal patents on Roundup Ready 1 Monsanto-developed products. “We will also not charge a germplasm royalty to our licensees after 2014,” says Mimi Ricketts, Monsanto stewardship and intellectual property manager. Nor will it enforce varietal patents on farmers who save Monsanto-developed Roundup Ready 1 2014 seed for planting on their own farm in 2015. Monsanto officials pledge to maintain global regulatory support for the trait until 2021, and will work with licensees and others if a regulatory extension is needed.

By 2027, an estimated 12 patent portfolios of biotech-enhanced traits will expire, according to data compiled by the Americans for Choice and Competition in Agriculture.

This could prompt the marketing of generic traits in seed that mimics the multitude of generic herbicides now on the market. Patent expiration could also prompt farmers to save commodity seed from the current year for planting the next year. This practice, known as brown bagging, was legally nipped by trait and seed firms in order to protect their investment. A recent Phillips McDougall study found discovery, development, and authorization costs of a new U.S. plant biotechnology trait introduced between 2008 and 2012 tallied $136 million.

If generic traits follow the lead of generic herbicides, seed prices should decrease. When generic agricultural herbicides gained popularity in the mid-2000s, prices of generic herbicides (like glyphosate) dove 30% below those of branded ones.

Seeds have a complicating factor, though. Soybeans with the Roundup Ready 1 trait can contain other patents.

“Today, it is difficult to find a soybean variety sold in the U.S. that does not have a germplasm patent in it,” says Don Schafer, DuPont Pioneer senior marketing manager.

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