Promiscuous patenting: Why does a dog lick himself?

We all know the answer, of course. And it bears on the question of the unpalatable abuse of the patent system. Why do these people do it? Same answer.

I was working with CAMBIA’s Patent Lens team on the forthcoming ‘landscape’ of patents around plant genes, and stumbled on a newly published patent application. It didn’t list the owner / assignee / applicant…just the inventors and their law firm. But I recognized one of the inventors (and the address, near St. Louis, was a giveaway) and a moment’s Googling confirmed it. Imagine my surprise!

Monsanto figures very prominently in the patent landscape, having filed countless wholesale sequence patents either directly or through their proxy companies, like Mendel Biotechnology, covering genes and promoters from rice, Arabidopsis, maize, cotton, soybean and presumably daffodils and snapdragons. But this patent application, US 2007/67865 A1, which had been hidden from view for years really grated (It dates from a US utility application from 2000, before publication was standard, and only published in 2007).

It claims about 463,173 separate annotated plant genes. Actually it claims exactly that many. Oh and it discloses them too, sort of, although the gargantuan file from the USPTO seems somehow corrupt. Matches the practice I guess.

The two inventors, Dave Kovalic and Jingdong Liu, must have been really busy guys to create 463,173 inventions out of the plant genome. Supermen, really. Let’s say it took them five years of full time work to do it. That’s really full time, Monsanto-style, 24/7. No breaks, not even for meals or sleep. No holidays and no pit stops. Catheters and No-Doze for five years. But these guys are supermen after all. Thomas Alva Edison eat your heart out. Jerome Lemelson, read it and weep.

Wielding my nifty little Mac OS X Calculator Widget that’s 43,800 hours of continuous work to generate these 463,173 inventions. Well, rounding up a little bit (I mean they must have fluffed one experiment, right?) that’s 10 annotated gene ‘inventions’ an hour, or if they split the work, one each, every 12 minutes. For 24 hours a day, 7 days a week for five years.

Iron men. or Iron Mentor? Perhaps it was the computer and the software that made the inventions? Now there’s a slippery slope.

And thank goodness that the world has been taught these inventions, because the advance of agriculture (or science and the useful arts as it still quaintly says somewhere) will really be fostered by this disclosure. Shame it took all those years to get out and ‘teach’ us their inventions.

But of course we all know that the USPTO isn’t going to grant these patents. Not all of them, and now, only one gene at a time. So this was all futile and only there as a puff piece, right? Surely there’s no way that they can stay pending indefinitely as a threat, gaining momentum only when someone shows that they are indeed useful (on their dime of course). Oh, they can? They do? You mean Monsanto isn’t paying its lawyers Gadzillion dollars for nothing? They know about Continuation Practice, in which exactly this can happen? Oh. Well that’s sobering. But that’s just lots of potential licensing right?

Well, no. Ever heard of MIRVs? The multiple warhead nuclear missiles? These massive ‘bulk sequence’ applications are MIRVs, and are now commonplace. Monsanto, Mendel, Ceres, Syngenta, Dupont, Bayer, BASF, Dow …yadda yadda. They can’t all be doing it for fun, can they? They’re MIRVs. And they’re MAD.

Mutually Assured Destruction by Patent Estate. Guaranteeing a scorched earth of innovation ecologies, but hey! they’re still standing, and cross-licensing under ruinous terms. Who’s going to blink?

Seeing this Orbital MIRV of patent applications, can you imagine investing your own money in any small or medium sized company that wishes to use plant genes for some creative purpose, say for small market or small margin innovation. You know, the kind that lends itself to public trust and transparency and local commitment and engagement? I sure wouldn’t do it. And what a surprise, no one else is either. Leaving the Leviathans (financially, but perhaps Minnows Morally) standing as the only game in town.

The upcoming landscape will review the patent situation up to the minute with regard to plant genes and the ability to use them to improve agriculture. We will focus on rice and Arabidopsis (a little mustard weed) because these are the models for the two main groups of crop plants, monocots and dicots. Another little frustration is that when patent claims are asked for, and usually granted, they cover not only the actual gene discovered (not invented) but anything that’s (e.g.) 80% similar. Well that pretty much covers all crop plants, oh and doubtless daffodils.

We’ll talk about the business strategies of companies like Mendel and Ceres, who like to present themselves as startups rather than the cats’ paws of the multinationals. We’ll show the depth of claims and of outright, wild west venality that is driving the consolidation of new science-based innovation into a few hands. We’ll describe as well as we can the logic (sic) of the ‘majors’ and the role of the public sector in hastening this consolidation of power and the gelding of public good.

This isn’t what science should be about. One of the greatest achievements in our species’ evolution was the development of the scientific method. The Enlightenment really was. Science is a formidable, verifiable means by which we as individuals and as societies can answer fundamental questions about our natural world, and inform new solutions to serious problems. The capability of using science must be a human right. It must not be thrown out – baby in the bathwater.

The public distrust of science is well earned by the gormless science community. The problem isn’t the multinationals. They’re absolutely predictable. Why do the dogs lick themselves? The problem is the answer: because they can. We offer no counterpoint: no robust, economically viable alternative innovation ecologies.

The public sector has dropped the ball. Science and society deserve better than this. The private sector, on the right playing field kept honest and open, can be a grand and fermenting tool of problem solving and innovating. But we have allowed – even fostered – the scorched earth, monolithic result we see. In agriculture, in public health and medicine, and in natural resource management. In short, all biological innovation.

Its up to us to pick up the ball; we have to render the opaque and clergy-ridden world of patents transparent and we have to come up with better ways of stimulating social wealth creation than this tedious gaming culture of rent-extraction. I’ll blog a good deal on this, and see if we can shine a light under the rock.

One Response

  1. Kerry Fluhr says:

    Another Monsanto application in the “egregious” category is No. 2007/020621 (, which claims 57,467 plant promoter sequences. It was filed in March of 2001, but didn’t publish until January of this year.