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Bona fide or not, concerns about the safety of genetically modified crops have been grabbing headlines. But a far bigger story looms in agricultural biotechnology: that of an industry choking on its own patent claims. For a powerful example, consider recent patent activity at Monsanto.

First, the company won a patent-number 6,174,724 for those keeping score-that covers a seminal technology in transgenic plant research: the use of antibiotic-resistant genes as markers. It works like this: when researchers want to insert new genes into plant cells, say to create a drought-tolerant crop variety, they couple these ingoing genes with such a genetic marker. By then exposing the target cells to antibiotics to see if they die (they don’t if things got to the right place), scientists can easily test whether the gene transfer was a success. There is probably no one in transgenic plant research who doesn’t make use of this technique. But now, thanks to the U.S. Patent and Trademark Office’s woeful ineptitude, they will all have to beg permission from Monsanto to use this fundamental technology, not to mention pay any royalties the firm sets.

Amazingly, however, an even worse intellectual-property nightmare is brewing. A pending Monsanto patent claims exclusive rights to a pivotal, widely used germ called Agrobacterium tumefaciens. This was the very first Trojan horse that scientists employed to sneak foreign genes into plants way back in 1983. And if Monsanto wins exclusive control over it, the field will be rocked even harder.

The real tragedy here is that both these patents (one granted, one pending) would confer monopolies on technologies that fall way too far upstream of the market to deserve patent protection. As many scholars have noted, patents are supposed to be a compact between the public and the inventor: in exchange for allowing the inventor a limited monopoly, the public gets access to a new product. But in these cases, there is no new product. Instead, Monsanto has essentially grabbed a piece of the ag biotech “infostructure”-claiming exclusive rights to a technological technique that everyone in the field needs to compete.

The problem is even worse in the Agrobacterium case. This patent was filed nearly two decades ago but has been tied up in a purgatory called “interference.” With four competing research teams claiming to have invented essentially the same thing, the tortuous case has already taken a mind-numbing 18 years to adjudicate, with, not one, but two administrative-law judges retiring during the process!

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