Where Does Open-source Seed Fit in an IP-Dominated Industry?

Saturday, February 15th, 2020
Oregon State University, Corvallis, Oregon
A session of the Organic Seed Alliance 2020 Organic Seed Growers Conference

Dr. Claire Luby, Open Source Seed Initiative
Frank Morton, Wild Garden Seeds

Moderator: Heron Breen, Fedco Seeds

2020 Organic Seed Growers Conference proceedings: https://seedalliance.org/publications/proceedings-from-the-10th-organic-seed-growers-conference/


Heron Breen: Good afternoon. You are in a session called, “Where does Open-source Seed Fit in an IP-Dominated Industry?” And just to be clear, today, while I’m sure the Open Source Seed Initiative, which the panelists are very familiar with, is going to be a touchpoint for their experience, quote lower-case O, lower-case S ‘open-source’ can encompass more than just OSSI, so we’re here to also express that. And that will be a thread and you are welcome to consider that in your questions. My name is Heron Breen. I work for Fedco Seed. We had a panelist who was unable to attend due to an injury – Elena Filatova – was hoping to attend and she cannot. So we have two folks, and I’m gonna butt in because I’m not good at not butting in. But hopefully it will also give more time to you folks in the audience to ask more questions and also share your personal experiences. So I’d like just the two panelists to introduce yourselves. You’ll want to click those microphones to the ‘ON’, which is the up switch. Go ahead, Claire.

Claire Luby: Hi, everyone. My name is Claire Luby. I’m on the Open Source Seed Initiative board of directors, and have been working with… well, helping to co-found the organization since 2012. And was a past executive director. My current role is at the University of Wisconsin, Madison.

Frank Morton: I’m Frank Morton. My wife, Karen, and I operate Wild Garden Seed. And we’ve been part of the Open Source Seed Initiative from its conception. And I’ve released all of my breeding materials to the Open Source Seed Initiative, and… how many varieties is that?

Heron Breen: So many that you stopped publishing a catalogue.

Frank Morton: A hundred and thirty-five or forty varieties, something like that – and there’s more coming – that I’ve contributed to the Open Source Seed Initiative. And I’m real happy about that.

Heron Breen: Thank you, panelists. And I know that each of one of you is going to have some good questions and feedback. Before we get into the presentation as a whole, it felt good to define or at least give some constructs around what ‘open-source’ is, and what it is not. I’m defining it from two angles. And so again, I’m defining ‘open-source’, lower-case ‘O’, lower-case ‘S’. I’m not defining OSSI. And I’ve talked with the panelists about this, so they’re not going to be surprised. Open-source is an intent, toward the past, present and future being a choice and a shared experience. Okay? It is an ethos that individual and group knowledge is derived from shared natural and nurture environment, i.e. genius is a shared and cultivated condition and not an exclusive club. It is an affirmation of personal agency, that anyone can do this work. Open-source-slash-seed sharing attempts to remove a key barrier to personal agency, by not restricting others from information or innate beginning. We do not own what came before, therefore we can’t restrict your beginning. Open-source is a way of exploring a different metric for the definition of ‘economy’. One good definition of the word ‘economy’ is ‘careful management of available resources’. Doing of the work is honored and supported, and work without common goal is value-less and probably detrimental. And open-source is, at its best, evolving, not stagnant.

What it is not? It is not a new idea. The concepts around open-source have been in our human existence for thousands of years, and definitely hundreds of years as different terms in different languages. It is not always a mandate or law, and is often best shared as a shared ethos and understanding or an oath. It is not a panacea to solve our financial and social injustices. Open-source often contains and reflects the same foundational issues of the society or group that is participating in it. It is … Sorry… It is not always expressed, nor should it need to be to be respected, as a formal, codified, professional construct. It is not, necessarily, democratic or inclusive, nor efficient, nor always functional. So these are the things that it is and it is not, as an idea. There’s more is and is not, but just some things to bear in mind as we’re questioning this today or asking how it’s working in the seed industry.

So one of the things we wanted to do was, I want to ask the panelists as well as the, our audience and myself, to name different models that come to mind of open-source seed initiatives or seed that you’ve either experienced or know about or just think might be that. And I’d like to start with our panelists, who have been working with this model.

Claire Luby: Okay, so I guess I’d just like to mention that there are open-source seed initiatives popping up around the world. In Argentina, Germany, India, and Kenya. And working together with those various initiatives, we’ve been working on developing a global open-source seed framework. So that’s… and all of those groups are conceiving of open-source and making open-source work within their own contexts. So I think those are some examples of how this idea is coming up around the world. But there are certainly examples of open-source or… similar concepts in many other areas. I think many of us know of free and open-source software, which was certainly a model for us with the Open Source Seed Initiative.

Frank Morton: Open-source also can accompany invention. A personal example is the ‘Winnow-Wizard’, invented by my friend and associate Mark Luterra. Essentially he invented, truly, a better way to clean seeds faster than most other seed cleaning equipment that’s out there. And it’s something that you can build yourself. And Mark has put all the plans, all the construction plans, lists of materials, it’s all online. And in fact, he said, Mark told me, he’s recently re-written the construction manual for building your own open-source ‘Winnow-Wizard’, and he said it’s more pages than his PhD dissertation.

(Audience laughs)

Frank Morton: So it’s quite detailed. And you can build your own ‘Winnow-Wizard’, if you want to. It doesn’t threaten Mark to have other people do that. And, you know, doesn’t threaten me that other people have a better way to clean seeds, an easier way to clean seeds. I think it’s wonderful. In fact, you know, Mark used some of my precepts about seed cleaning to design his machine. And that machine embodies everything I ever wanted in a seed machine. And why would I want to deny that to my seed growing community? Of course we want to share. So open-source is all about sharing, really. It’s about sharing knowledge, sharing ability, and not trying to have economic advantage because you’re the only one allowed to use these ideas.

So, but… we also see open-source farm equipment is now online. I bet some of it is really good. I bet some of it is not. But for me, the whole concept of open-source seed originated around the Linux system. And, I mean, my kids introduced that to me when they were, I don’t know, first learning to use computers at age 9, 10. By the time my son was 13, he had built a website for our seed business with Linux. And he learned all about Linux, writing Linux code, online from other people who told him how to do it. This extensive Linux community that my son Taj was networking with… I swear this was when he was 11, 12 years old. And there were people in Japan, and people in England that were in this little group, and they raised each other up. They did an open-source project together to help people essentially load Linux onto their computers, create Linux operating systems for their computers. Anyway, that’s where I got the idea. And I began thinking, you know, seeds need some sort of open-source model that emulates what I see my children doing with Linux. I had no idea how to do that, and in fact I tried to employ my son to help create an open source seed system just sitting around the breakfast table. But it was more complicated than that, and it needed a lot more people than me and him. And so, anyway, that’s my experience with open-source outside of seeds. But it all looks effective to me, if not perfect.

Heron Breen: Does anyone in the audience want to share an example of open-source that they feel, or have participated in, have similar constructs in their community or in their personal history?

Carol Deppe (OSSI board member): A major, very successful one is the Creative Commons licenses.

Heron Breen: Could you elaborate on that?

Carol Deppe: Well, for example, I wrote some OSSI fight songs. And copyright for any written, any piece of writing or music, exists as of the time that you write it. So even if you want to share it and don’t really need people to ask for your permission to share it, we’re in a legal situation where people actually need your permission in order to publish it themselves, or to sing the songs, or whatever. I didn’t want that, I just want to share the lyrics, let people change it, let them do whatever they want with it. And this whole organization that does the Creative Commons licenses, has I think it’s at least five and it might be more than that, different licenses that are set up, that are legally valid in multiple countries, recognized in the US. And so I just use their little Creative Commons symbol, and the one that has got a BY after it, which means that I’d like the lyrics to be attributed to me, but I don’t require permission, I don’t care whether you commercialize it or not. You can do anything you want with it, you can change it. It’s freely shared. It took decades to set the system in motion, and I think it’s a tremendous resource and mechanism for just sharing things.

Heron Breen: I’ll try to get a non-OSSI person. I hoping I’m getting a lot of exercise today because I need it, so I’m happy to walk up and down this aisle. Thank God. Just sharing some open-source experiences in your life or history.

Audience member #1: We started a seed library in our public library in Nova Scotia, and we got a whole bunch of people to donate seed to it. Some of us are seed-savers, some are just local farmers. And then we also ran free workshops on how you can save the seed. So if you ‘check out’ a seed from the library, you can also learn how to ‘return’ the seed. There’s no due date on the seed, but the idea is that we hope that you will also go to the workshops and learn how to save the seed and return some seed back to the library.

Heron Breen: Does anyone else have an experience or a construct?

Audience member #2: Just in general, coming from an engineering background, I know two things. There’s a lot of open-source for conversion of gasoline or diesel into hybrids or electric vehicles, is one example. Another one is the rise of the ‘maker space’ for the Millennials, Generation Z, and really anybody. 3D printing and stuff like that is kind of in that direction in terms of STEM-related stuff. 

Heron Breen:  Okay. Hands, hands? No? Okay, let’s move on. I have my own personal version… oh, I’m sorry. Jack? Thirty seconds.

Jack Kloppenburg (OSSI board member):  Just a clarification. Something that Heron said. Open-source is not one thing. It’s small ‘O’, small ‘S’. There are a whole variety of open-source possibilities and licenses in software as well. And it’s critical to understand this. I think, pretty sure that Claire’s going to get to this in her explanation. But public domain is open-source at one level. Which is to say, it’s available to anyone who wants it. That’s the loose end of open-source. Where OSSI is, is on the hard end, on the copy-left end, which is to say that you have access to it, but there is one restriction on it, which is very powerful, which is that you must share any derivative or that thing that you borrowed.

Heron Breen: I think that was really well put. Thank you. And on my own perspective, the couple of examples that I have, that I know of. In Maine, we’ve had a tradition where, if you went to a bean supper or a dance, in a town –  this was before the word ‘IP’ really meant anything beyond going out to the outhouse or behind a bush – basically, you were really prized and valued in the community as a seed grower for corn. And people would be really excited to bring a handful of their best ear of corn and put it in a bowl. And everyone would do that, and at the end of the day everyone would take, at the end of the night, you know, when you partnered up hopefully with your wife or husband, you would grab a handful of corn.

There’s another example of an island community that was maintaining, has maintained for a really long time, some turnip varieties. And these were shared in the island community and just widely available. And you’d think that island communities were kind of, you know, “You come here from ‘away’”, but if you bought a house from a family that had been maintaining this turnip, they offered you the opportunity to take that seed and continue. So if you came from off the island, it was kind of like, “He took the turnip: he’s one of us.” (Audience member laughs) And also, this element of, you know – I’m a part of Seed Savers Exchange. And Seed Savers Exchange is sort of farther to the one end of open-source, but also has a number of listing guidelines about things like how you share things and not share things. And so, many of these things, whether we are formal or informal, we’re here today to talk about seeds. And we’re also here to talk about, really, what are the challenges when an open-source variety – but also the successes when an open-source seed variety – enters into the marketplace. So we’ve had enough time for a few years to kind of have growers who have introduced some things. And I know that many of you are in the room. And we want to talk and hear from each other the benefits of whether it’s a variety that you sourced from Seed Savers Exchange and have commercialized, or one of your own varieties that you bred and pledged with OSSI. What’s been the challenge with that, in terms of being financially viable or just personally satisfied with that?

But before we do that, and this could be the topic that we could debate all day – which is why we’re not going to. We’re not going to debate today, well maybe if we have time at the end: Is open-source a form of intellectual property? But I’m gonna ask the panelists their opinion, and then we’re gonna take a vote. And the vote has three parts: Yes, No, or Depends. So of our panelists, I might ask that question to you. Do you feel that open-source, whether that’s capital ‘OS’ or little ‘OS’, is that a form of intellectual property? Yes, no, and depends on how it’s applied.

Claire Luby: I think, probably, it depends on whether it’s using the sort of formal intellectual property rights mechanisms or is more a shared understanding of how people are agreeing to behave within a system or network.

Frank Morton: To get all my thoughts on this, I would encourage everyone to read my two pages in the proceedings, and then you’ll get anything I forgot. But yeah, I express the opinion… I think that OSSI actually is an intellectual property claim. The reason I think so is because when I put a seed into the OSSI system, I feel like I am making a declaration by doing that. I am saying that this seed here is the product of my work, and I don’t want anybody else to privatize it. To me, that’s what the OSSI system does, is it is essentially making a record of prior art, as well as the breeder’s intention of what should be done with that piece of art – the seed. So, I don’t know, we can debate whether that makes it a part of intellectual property protection or not, but it sure sounds like it to me. I’m keeping others from keeping it from you. So I feel like I’m making a claim.

Heron Breen: Fair enough. Is there anyone else, before we take a vote, that would like to express an opinion, briefly, on this concept?

Carol Deppe: The legal standing of the OSSI pledge is essentially the same as a bag-tag agreement. It’s based on contract law. If we don’t think of it as a bag-tag agreement, basically, the whole thing falls apart.

Heron Breen: Is there someone up here with their hand up? Oh, Andrew. I’m loving this climbing thing.

Andrew Still (OSSI board member): I sat up here just for you. I can see it as being understood as a form of intellectual property, but also it depends on how you define what intellectual property is. I think of intellectual property, the only true form that exists in the world, is the contents of your mind that you have not shared. Because that’s your property. Anything else has been granted as property by a government, and that’s the only reason why it’s considered intellectual property legally. So do you call it intellectual property or not? I don’t, but I could see Frank calling it, it’s fine. We don’t really disagree, I just think that when you say something is intellectual property and then you say it’s not intellectual… we’re preventing you from calling it intellectual property in calling it intellectual property. It’s an interesting snake eating its tail that fries a lot of people’s brains, and I kind of like it for that purpose too, ‘cause that’s fun. But yeah, that’s all.

Heron Breen: God bless articulate anarchists. Thank you, sir. Anyone else with an opinion? Okay, so we have some ideas here. Would we like to take a little vote? Yes is – yes, open-source is an intellectual property. Raise your hands. [Many hands go up.] Pretty solid. How about No, it is not? [One or two audience members raise their hands.] The cheese stands alone and there is hand-wiggling. And on the hand-wiggling level it is also how you apply it, that’s the abstain. In other words, how about How You Apply It? Is this voting twice? Could be. Okay, so, cool, great, I’m glad we’re in total agreement. At this point I would love to turn this over to Claire to talk about OSSI and a synopsis of what it’s doing and its constructs. And then also Frank was gonna talk about some, after that about, kind of the comparison for his, in his experience what open-source is versus other intellectual property models. Since he has firmly decided that it is intellectual property, he’s going to make that comparison for us.

Claire Luby: Hi everyone. So I am going to walk you through a brief explanation of how we have developed an open-source system, called the Open Source Seed Initiative, so again, this is one model that we have come up with…

24:22 [Equipment malfunction, audio cuts out. Real lapse time: 55 seconds]

Claire Luby:  …protected commons, where everyone agrees on a certain… that, basically, the only restriction be that there be no further restrictions on a variety. And so there is this virality to open-source that I think is a little different thank public-domain, the [Creative] Commons or open-access, where there’s open access, or ability to use seeds or work with seeds that are in that space. But you could also use those seeds, breed something new, and then actually prevent others from using that new variety that you’ve developed. So the idea behind Open Source is that anyone would maintain those same freedoms to continue to work with an Open Source variety. So I think that’s how we’ve been thinking about that. So it’s developing a type of protected commons.

What is the Open Source Seed Initiative? We are a non-profit, we have been around since 2014. And we are, we have a release mechanism for new varieties and maintain a database of those varieties. And we work with plant breeders and seed companies who are either breeding new varieties, growing seed of those varieties, or selling those varieties. So we’re working on developing this protected commons, as I’ve mentioned. And I think we’re also working to create a community of practice around Open Source seeds, so developing those norms around what is an Open Source variety from the perspective of the Open Source Seed Initiative.  I think we’re also working to foster decentralized plant breeding and seed enterprises, so working on getting more people breeding more varieties of more different types of seeds in more places, and figuring out how do we support that kind of work.

So, as I mentioned before, we took a lot of inspiration, as I think Frank mentioned as well, from free software, and the development of the free and open-source software movement. So seeds are different from software. Software has copyright. So when you write software code, you can get formal protection in the form of copyright on your software code. And you can then attach a license to your code that follows that code everywhere, that says, “you can do whatever you want with my software code as long as you don’t prevent anyone else from having those same freedoms to do whatever they want with this code, or continue to iterate on that code.” So…

27:24 [Equipment malfunction, audio cuts out. Real time lapse: 1m40s]

Claire Luby: … [The Four Seed Freedoms are as follows: the freedom] to save or grow seed for replanting or any other purpose, the freedom to share, trade or sell seed to others, the freedom to trial and study seed and share or publish information about it, and the freedom to select or adapt the seed, make crosses with it or use it to breed new lines and varieties.

So who do we work with? We work with 48 plant breeders currently who release varieties through the Open Source Seed Initiative pledge. So they don’t release them to or give them to OSSI, they release them through the pledge. So they’re using the OSSI pledge when they’re distributing their varieties. And so the majority of the plant breeders we work with might be considered freelance plant breeders, or people… so that’s a whole spectrum, and Carol Deppe has actually written a really nice chapter on freelance plant breeding, and who are freelance plant breeders. But I think many of you are probably in the room. And so people developing new varieties but who are not necessarily associated with a larger institution, such as a university or a larger seed company where their, basically, where their role would be to be a plant breeder. So of the many people we work with are plant breeders but they also maybe run their own seed company, or they maybe grow seed, or they may be farmers. So it’s a wide ranging group of people. And we’ve… and they’ve released over 500 new varieties under the pledge. Again, I’d encourage you to… we’ll be posting a copy of this chapter, so if you’d like to read more about freelance plant breeding in Carol’s new piece on that. We also work with 68 different seed companies. So some of those are the same people who are releasing varieties through the OSSI pledge, but, basically, in order to become an OSSI seed company partner, you have to be selling at least one OSSI-pledged variety. And that’s pretty much our only requirement. And we ask that you put the pledge on a packet of the seed that you sell, and that it be distributed and also labelled online and in seed catalogues… online next to the variety. And we also ask that you designate who developed that variety and where it came from.

And then we are also building this database, so we have an online database of the over 500 OSSI-pledged varieties that is searchable, and people can look at and find. So in some ways, this is sort of a decentralized collection of all of these Open Source varieties, where we are listing where those seeds are available and who the breeder is of that variety.

So just a few very, very general, a general sweep of what are all of these varieties. The majority, over 90%, were bred for growing in organic growing conditions. We have 16 plant families and 64 different crops that have been pledged. And the largest number of varieties of any single crop is actually the dwarf tomato category, through the Dwarf Tomato Project. And then lettuce is the second highest number, with 104 lettuce varieties, many of them having been pledged by Frank. We also have a number of unique crops, and I think this is just worth pointing out. The majority are vegetable crops, but there’s also amaranth, quinoa, calendula, sunchoke, orach, yacón, ulluco, oca and mashua. So a number of different types of crops that aren’t necessarily commonly worked with, at least in the US. And then all of the OSSI-pledged varieties have been open-pollinated varieties, although it is possible to pledge a hybrid. You just have to make the parent lines known. So someone could pledge a hybrid if they wanted to.

I think, if some of you were in the session where Andrew presented yesterday, I think there’s a challenge and an opportunity with this virality of the OSSI pledge, and that’s tracking derivatives. So again, seed likes to spread around. Many people are working with seed. This presents an inherent challenge of tracking where that seed goes, who’s working with it, and how it changes over time. And so, I think, there’s a challenge for OSSI in that, in tracking where that seed goes. And the idea is that all of those derivatives, whether that be of a specific variety or of a new variety that comes from an OSSI-pledged seed, would be Open Source. And we’ve had some successes with that, but I think it is challenging to track where all of that seed goes, and I don’t know that it’s actually possible to ensure that every single seed would be encompassed, would be continually encompassed in that Open Source system.

So one example was, I’ll give an example from myself, we worked on developing these diverse populations of carrots. And we’ve then had a partnership with Fruition Seeds, where they took one of those populations, selected for five different years, and developed a new variety [‘Dulcinea’ carrot] that is now released under the Open Source Seed Initiative.  And I know that there’s also a number of breeding programs, such as Frank’s, where anything you develop you end up pledging through the Open Source Seed Initiative. So in that sense, it’s continual, right. You can track all of your own breeding projects. When seed is getting distributed and other people start working with it, it gets to be more challenging to track. I also just wanted to mention, again, the global open-source seed network that’s in development and in conversation. A number of these open-source seed initiatives are popping up all over the world that fit into different contexts. For example, the Open Source Seeds group in Germany uses an official license to release varieties. Others use a similar pledge type of arrangement. So people are working on and grappling with these concepts all over.

I also just wanted to mention a couple – just a plug for two projects, quickly. We have an Open Source Plant Breeding Forum. One of OSSI’s goals is educational, and so this is moderated by Joseph Lofthouse and has 166 members, people talking about different plant breeding projects and either giving advice or asking questions.

And we also have our Free the Seed! podcast, which is hosted by Rachel Hultengren and details how different varieties, different OSSI-pledged varieties were bred. So really goes into a lot of detail about how the breeder approached a breeding project, what they used – what varieties or seed they used – and how you breed different crops. So I think that’s a nice informational resource. And one more slide – if you’d like to learn more or just come chat with us about all of these different ideas, we’re hosting a kind of coffee session tomorrow morning here. So. And yes, light breakfast.

Heron Breen: And folks, before we switch to Frank, uh thank you very much. Before we switch to Frank, I neglected to tell you all that this conversation is being recorded. If you have any experience in international espionage or the Mafia, the goal is actually to speak in a very high-pitched voice, because that fractures the tones if you don’t want to be identified. [Audience laughs] So it’s either don’t speak, speak in a funny voice. But part of the reason we’re doing that is because we can hear from folks the challenges and successes and make this conversation a little more lively than, kind of, someone constantly scribing. So we want to hear from the audience their experiences of how utilizing, whether it’s OSSI or anything else, how this is affecting their work in good and what the challenges are. So I’m going to turn this over to Frank to talk about the comparisons between Open-Source for him, and the other intellectual property models.

Rachel Hultengren (off mic): I want to make sure that people feel comfortable speaking. If anyone wants to share with the group here but not be recorded, let me know and I’ll remove your questions or comments from the recording.

Heron Breen: You ruined my funny high talking voice thing.

Frank Morton: Thanks, Claire. I want to cover a topic, which is basically: intellectual property and the farmer-breeder, or ‘why plant patents and PVP don’t work for me’. As a farmer-breeder, time and money are always in short supply. And also, I hate paperwork. So the whole idea of the Open Source Seed Initiative is to try to keep our work from being privatized by corporations for their own profit. That’s why we’re doing this. That’s the whole idea. We want to assure that when independent breeders, whether independent farmer-breeders or freelance breeders, when they release their material, they don’t have to worry that someone else is going to come along, take that material and privatize it in some way, or the traits that are exhibited by that material. So that, basically, our inventions can’t be privatized out from under us. Now one thing I could do, other than OSSI, is that I could get a plant patent [utility patent] on my material, or I could get a PVP [Plant Variety Protection certificate]. Plant patents prevent anybody from doing anything with your material without your permission. I mean anything. You can’t even put a Salanova lettuce in a comparative lettuce trial without the permission of the owner. You cannot report on the comparison of growth between a Salanova lettuce and my lettuce, because that would be a violation of the Salanova patent. So that’s how restrictive that can be. And what OSSI is trying to do, is keep this seed available for everyone to use into the future, starting now, not waiting 20 years for the patent to go away. The way, you know, most of us independent breeders, farmer-breeders, freelance breeders, we do what we do for passion. It’s what we like to do. We’re not doing it for the money, really. Although most of us would like to get paid for our work, if we could. That’s a tricky proposition. But anyway, I don’t expect to get paid to be a breeder. I expect to sell seeds, and the proceeds from those seeds buy me time to do plant breeding. Currently, basically, I’m hoping to sell a lot of flower seeds so that I can keep breeding peppers and quinoa and lettuce. So that is my finance – that’s how I underwrite my plant breeding, is by being a seed grower, not by being a seed breeder. I wish I could get paid to be a plant breeder. I haven’t found anybody who wants to pay me yet. Okay, so independent breeders of the farmer kind, we never have enough time and we never have enough money, period. So we certainly don’t have ten thousand, twenty thousand dollars for a plant patent [utility patent] and maybe five years to go through the whole process to patent something. A PVP costs two, three thousand, maybe six thousand dollars to do, and it delays, it could delay your release for a few years. What I want to do is breed and release as fast as possible. In fact, I’m kind of famous for releasing things before their done. And that is, in fact, to allow other people to participate in my breeding projects. Bill, Ivory Silo Bill, Bill Braun, recently told me that he’s been using some of my peppers in New England, and has… using my material from the West Coast as a basis to create a variety for the East Coast. So he’s taken my material, that still has sufficient variability in it, and reselecting it in a new place. That’s exactly what I want to happen. Exactly.

If I was trying to get a PVP on that pepper, it’d have to go through a USDA licensing process. And they may decide that this pepper is not uniform enough to receive a PVP. So I might be denied a PVP after going through the expense of trying to get one. I don’t want to do that. That’s a waste of time. I don’t want to waste my time. So the intellectual property system, as it exists, actually exists so that corporations or entities, universities, that have some financial interest in the outcome of a breeding program can recoup the cost of the breeding program and make a profit. And for those institutions and corporations that have lawyers, staff, you know, advertising programs, contracts with their vendors to promote the seeds, that all works fine for them. Works fine for them. They can spread those costs out and have a lot of people doing it, and the breeder can keep doing his breeding work and never think about the whole ins and outs and expense of getting a PVP or a [utility] patent. It doesn’t work for me. It just doesn’t work. The great value of the OSSI system, from the farmer-breeder, freelance breeder point of view is: very little paperwork, no expense. You can do it right away. The seed doesn’t even have to be uniform. You can get a PVP on a population, or apparently on a hybrid. I mean, you can get an OSSI sticker for that. I’m not sure you can get a PVP on a hybrid. You can? Can or cannot?

[Someone speaks off mic]

**Editorial note: Plant Variety Protection certificates can be obtained for hybrid varieties.**

But basically, the upshot is, this stuff does not work for me. And the beauty of the OSSI system is, it works for me fine. It doesn’t encumber me. So while I don’t employ PVP, you know, I can understand PVP. I cannot understand patents, in terms of plants. Because patents, in my view, are for inventions. And plants and their traits are simply not inventions. They are works of nature. A trait in a plant that you can get a patent on is not anybody’s invention. The plant did that. Now, if you want to get a patent on something you’ve created through synthetic biology, or, you know, if you want to get a patent on a GMO, I’m not even going to argue with you about that. Because that GMO version of the plant does not exist anywhere in nature. It truly was created in a lab; I can understand that that is an invention. So that, you know, I don’t have time to argue about it.

PVP’s, the great thing about PVP’s is they still allow breeding to occur.  There’s no restriction on breeding, a PVP variety can be kept – the seed can be kept for your own use. You can give the seed to people and they can use it. You just can’t sell it. To me, a PVP is like a copyright. It’s, at least intellectually to me it’s in the same group as a copyright. And because I’ve grown up in this society, I understand copyrights. You write something, it’s yours. Put a circle C on it, doesn’t cost you anything to do it, it happens immediately, that’s great. If only a PVP was like that, then I could use a PVP. PVP actually costs money and takes time. But I understand the concept that a full variety is a complete piece of work that somebody did, just like a poem or a song. I get that. A PVP is on the whole thing, it’s not on pieces of it. I understand that I should not be able to print and sell Wendell Berry’s works without his permission.  Anybody want to argue with that, by the way? Does anybody think we should be able to print other people’s work and publish it? I don’t think so.

(Carol Deppe off mic, unintelligible)

Better not try it with Carol’s. Yeah, okay, so that’s what I’m saying. So I get that. And so, actually, I’m not against PVP’s inherently. I just don’t use them and I don’t sell them. So presently, I think that OSSI is the only form of intellectual property protection that I know of that works for me and for people who are doing this in a freelance way that don’t have a lot of money, don’t have lawyers, etc. And the great blessing of OSSI is, really, how convenient it is. And, you know, for any one variety – come on folks – if I wanted (laughs), if I wanted to get PVP’s and patents on my stuff, I’ve got 140 things in there. Do I have that kind of money? Of course not. It would actually, if I had to do that, it would actually be constraining my work. So I’d rather be releasing a lot of material than knowing I own it.

So, anyway, presently I think PVP’s the best thing we have going. What I really believe is that patents should not be allowed on living things. That’s what I really believe. Because they’re not inventions. And if you find a mutation in a plant that has never been seen before, you didn’t invent it, you discovered it. It’s like discovering the moons around Jupiter. You don’t own those. You can discover them, you don’t own them, you can’t patent them. And I think that’s how genes are. We don’t invent them. Well, it’s pretty straight forward for me.

Heron Breen: Thank you, Frank. So, in just the realization that we, you know, in all of these sessions, we wish we had a lot more time. And there is, you know, about 35 minutes left. And I guess we had a serious of questions, but I kind of feel like a lot of these questions are gonna be a part of the community discussion. So I was kind of thinking, at this point, that there’s folks that are plant breeders, there’s folks who are gardeners, there’s folks that are working for seed companies, and other folks here that have interests, maybe beyond seeds. And I wonder if maybe this is the time to just share those experiences, if you’re a breeder and you’ve either utilized this or have questions about utilizing this or other types of open-source, whether it’s listing something in Seed Savers Exchange or utilizing that. I think this is the time to ask questions, and I think that our panelists are well prepared to answer many related to the, you know, their experience. If you have already spoken, I may try to seek out some other folks who have not spoken yet, and then circle back to you. Just in case, if earlier… we kind of want to get some lesser voices in the mix. So I’m wondering if anyone has, to start off, just does anyone have any questions for Frank or Claire about their perspective, or their particular elements of OSSI?

Audience member #3: Hi, thanks. I have a couple of questions. I wonder if you can talk to trademarking – I see trademarking in the seed catalogues – versus registering, registered, you know the R circle, and where that fits in with the OSSI pledge. We try to primarily grow OSSI seeds on our farm. But I am also curious, has the OSSI seed pledge been challenged in any way in a court? Is it enforceable? Just curious is there’s any experience with that.

Claire Luby:  To answer the second question first: no, it has not been challenged in court. We have talked to several lawyers who think that it could stand up, but it has not been challenged. And that hasn’t been, sort of, one of our main focus points at this point. And in terms of your first question… wait, could you prompt it again? Trademarks! Right.

Heron Breen: Trademarks.

Claire Luby: So you cannot get a trademark on a variety specifically. It has to be on a brand. And so there are a lot of examples of this in the apple industry, where there are basically brands of apples that are trademarks. But then there are a separate variety. So any apple that meets the requirements of the trademark, can be sold under the brand name. But if it doesn’t meet those requirements, quality requirements are usually a lot of the specifications, then it has to be sold under the variety name. We are actually working on this right now, in terms of whether you could have an Open Source, or an OSSI-pledged variety that could, where the product or the food could be sold under a trademarked name.

Heron Breen: So, just to clarify something that Claire was saying. So if you look in, like, a nursery catalogue, often there’s a name like ‘SuperMax’ and then you’ll see, like a little parenthesis. ‘SuperMax’ is trademarked, and then you’ll see the name of the actual variety in smaller print in the parenthesis. So basically, to sell that, there’s actually a real variety name to that apple, but the ‘SuperMax’ is the trademark. But your specific question was about sunflowers being trademarked as a name? Like ‘SunBright’ or something like that? And I guess I think the same applies, I think that is more of a brand, than maybe the specific registered either number or name. But I don’t know for sure – does anyone have an answer? Fellow down here, he’s looking it up on his phone.

Audience member #4: I don’t know about that specifically, but I think maybe an anecdotal analogy, maybe? Sunkist oranges would be an example. Hopefully, I don’t know if that needs to be scrubbed out for trademark reasons… but of course, there’s like the variety – there are  navel oranges, Valencia, I was looking at all that, Cara-Cara oranges, all that stuff. The brand itself, of course, is Sunkist. Coming from Scottsbluff, Nebraska, we have a guy in, I think, Alliance, Nebraska. His name is Russ Finch, and he was selling what he called ‘Snow-Kissed’ oranges, because he grew them in a geo-thermal greenhouse. And he was told by Sunkist that he can’t do that anymore because it was a violation of trademark. So he had to switch it to some other name. He was still growing navel oranges, just under a different name.

Heron Breen: He was just marketing them under a different name. Okay, so it sounds like we have some –

Frank Morton: If I could comment about the legal aspect, just for a second –

Heron Breen: Okay, thirty seconds.

Frank Morton: … and the challenge in court.

Heron Breen: Thirty seconds.

Frank Morton: The power of OSSI, really, is essentially you are publishing the existence of something, and you are describing it, hopefully, enough that it will be clear it is an example of prior art. So if someone wanted to challenge, wanted to patent it, they would have to, essentially, explain somehow this piece of prior art. How could it exist before you patented it? So it’s, essentially, the legal strength, I believe, is really in demonstrating that these traits were already out there and cannot  be patented by others because they already exist.

Heron Breen: Just, ah, clarity about the trademark situation is that, for example, if I’m a food distributor business, and I have a special melon that I want to sell, that may be a hybrid and we might have bred the hybrid but we might also have another hybrid that looks pretty much the same coming along that has a different level of disease resistance. And so, rather than having to try to market, like, a whole ‘nother name of melon, I just call them the same, even when we transition to the new melon, I’m calling it the same sort of store brand, in the store. And so that’s, kind of, like an example of how that’s used versus the original name, for a proprietary breeding company.

Audience member #5: Yeah, I’ve got at least a couple things I wanted to ask about. One is – is it possible to add something to OSSI that you didn’t invent? Something that’s already a public domain, or thought of as an open-source thing that you didn’t necessarily invent? And the other question I have is – what happens if an OSSI variety gets crossed with a protected variety, patented or PVP or whatever, either on purpose, or perhaps by accident? And also maybe you could comment on, I remember a couple of years ago someone saying something about the lawyers from some big corporation had said that they were afraid of OSSI and that it was ‘too toxic to touch’.

Heron Breen: And that last part, were you asking for clarity about that corporation? Because we can’t give that… [Audience member speaking off mic] About how corporations have interacted with OSSI since that point? Okay, good enough. So the question is – inadvertent crosses between protected varieties and possibly how corporations might be seeing it today? 

Claire Luby: So yes, there was a paper that was published that talked about how OSSI was sort of ‘too toxic to touch’, in that, that was referring to the virality piece. So that basically, they were not interested in touching or using any OSSI-pledged varieties because anything they then crossed it with, there would be issues with that, with any derivatives being Open-Source. We really haven’t had any interactions that have said anything past that point. So…

58:27 [Equipment malfunction, audio cuts out. Real time lapse: 35s]

Claire Luby:  …derivatives are Open-Source, I think it would probably depend a lot on the situation, exactly what happened, in that case.

Heron Breen: Thirty seconds clarity, Carol?

Carol Deppe: Yeah, I’m chair of the variety review committee, so we considered these kind of issues. If you have crossed a patented variety without the permission of the patent holder, you’re in violation right there. If you cross it to an OSSI-pledged variety, you can’t have any restrictions on that material, and if you’ve got a patented variety, you can’t not restrict the material. So it’s not real obvious why anyone would do that. With respect to registration, we are working on the final language on it, but we think that it’s consistent with OSSI-pledged varieties that they can be trademarked, as long as the trademark is a separate name from the variety name.

Heron Breen: I’d like to take one more question, and I’d like to ask that maybe a breeder might, or people who are involved in an open-source system besides the folks that have already spoken, maybe share how they’ve benefited or maybe what the challenges might have been for them either in the process or in marketing. Or whether they’re making money opposed to any other variety that they’re offering. But I want to take a question first.

Audience member #6: Yeah, I’m coming from Europe where it’s quite different, because we have to get the plant release that we’re allowed to sell it. So we have to do, they do… so we can’t avoid that. And we are actually having, heavily discussing this among organic breeders, the same question that Monsanto has, because for Europe we’re not used to do the patents. They’re now just coming in with the big seed companies. But we’re totally against the patent system, and I think there should not be any patent of any traits. But for us, it’s a high… a very high value is the breeder’s privilege to use whatever is released to use to make own crosses, and then also get protection on it, because sometimes you also need  return of investment, and if you’re a cereal breeder, you’re not selling the seed, but you’re giving it to somebody else who produces the seed and he earns money with the seed. And for us, a derivative is not the progeny of the cross, but it’s something that is very similar, like a backcross that had maybe one improved trait and that’s why many organic plant breeders have problems with applying the Open Source Seed License, for example, from Agrecol. And that’s preventing it… because the idea of the plant variety protection, or the breeder privilege, is that everyone can participate on the breeding gain. And I think utilizing it, and maybe some companies that can make a living out of it and depend on donations, they should also be able to use it in their system as long as there’s no way to patent anything on it. But I would not restrict it to plant variety rights.

Heron Breen: Thank you for that perspective. I’m wondering if someone who is an OSSI or other open-source user who has either commercialized or bred varieties would like to speak to their experience. Is there anyone… Oh, sorry, my apologies.

Audience member #7: I’m from the seed company perspective. And I’ve worked for the last 16 years in packet sales to home gardeners. And our experience has been, both when I was with Bountiful Gardens, and my own new company, Quail Seeds, has been that at a conference like this, we’re talking to people who know and understand these plant concepts, but the general public generally does not. And they’re frightened, and they want to – they’ve heard – they know that they don’t want is GMO’s, they know that what they don’t want is some corporate – I mean, not the entire public, but there’s a large segment of people that want to avoid corporate, proprietary, scary-sounding, done-in-the-lab kind of things that’s maybe not real clear in their minds what the terms mean or exactly what to look for. And as a result, what people say, ten years ago what we were hearing was, “I don’t want anything that’s not an old heirloom.” And OSSI has given us a way to speak to people simply, and let them know that all new things are not from some big corporation. All new things are not using scary, new, in-the-lab methods. And it’s something that they can look for, that they can understand. It’s a single word that, you know sometimes creating the term just creates a whole new ability to see things. Like ‘designated driver’, say – you know, suddenly you can call it something and so somebody can be that. And Open-Source Seed has done that, it’s opened new seed from breeders who are working in the present day, to people who before were afraid to buy anything that was bred after World War II.

Frank Morton (?): Success!

Heron Breen: Thank you for that perspective. Anyone else who has been either commercializing or breeding OSSI seeds, or breeding open-source type seeds want to speak to their experience? I’m kind of looking to wonder, and maybe if no one wants to share we can turn this back to Frank, as to how this has been benefiting, challenging, a mix of both, your particular profitability as a breeder or as a farmer. Looks like we have a question down here, or a statement to that?

Audience member #8: Uh, both.

Heron Breen: Okay.

Audience member #8: So it’s not on the breeding end. I guess, thanks to you both. This is a super important issue, and Frank, in particular, I think you do such a great job of talking about this shift of power over that the corporations have, to power to, in the words of John Holloway. It’s such a big change in power dynamics. One thing – I assume that the U.S. is a signatory to UPOV-91 [the International Union for the Protection of New Varieties of Plants 1991 convention], and so the right to save that seed and reuse it, and to breed with it is an exception to UPOV-91 that the U.S. grants. And so, it’s the same in Canada, but in other countries that exception doesn’t always exist. So I think that that exception under the PVP… it could be changed. And I support the PVP system as long as those exceptions are there. Without them, it changes significantly, so I think that’s really important. In Canada, it’s seven words in the Plant Breeders Rights Act that cover that, basically. So I wonder, in this regard, and we did talk about this before, Claire – there’s some severe restrictions on OSSI, but I think it’s evolving. Do you see the potential for OSSI varieties to get covered under PVP as long as the breeder puts this absolute exception on there that it cannot be restricted for breeding or growing for your own use, which is basically what OSSI does. So it   still allows that protection, to be protected economically without restricting its further use.

Heron Breen: Good question. So evolving of the pledge, or this construct.

Frank Morton: So. I haven’t thought about this. So you’re proposing, possibly, that OSSI varieties could be PVP’d.

Audience member #8: I’m not proposing, I’m just asking.

Frank Morton: I don’t think so. I don’t think so. Because we are, OSSI allows you to use the seed in any way whatsoever, including to grow a big patch of it and put it in a catalogue and sell it. And that’s specifically what PVP does not allow without the permission of the breeder. So I wouldn’t think that that would be compatible with OSSI. I agree with you about the PVP matter. All my comments about it previously, about how I can understand it – if you flip, if you changed it so that it could not be, you know, those exemptions for your own use or for further breeding, if those were taken out of PVP, my approval – or my understanding, I should say – would be nullified.

Heron Breen: And again, is there anyone here who is a breeder who has released a variety through an open-source methodology, who wants to share how it has impacted their work? Okay. Yep, Andrew.

Andrew Still: I specifically like OSSI because it pretty much says that you need to open this variety up. It doesn’t require – it doesn’t say that you can’t ask for voluntary honorariums for your plant breeding. But it says you can’t require that. And that’s what… I like saying to people, “You can grow this out and produce as much seed as you want and screw me over if you feel like it. I’m not going to be your friend afterwards,” but I think people should have the… we should treat people like adults and let them do that. And then we can have conversations. Like, there’s no morality in saying, “This is the rule you have to follow.” They have to make that decision for themselves, and I like letting people make that decision. And I like, also, letting seeds be more of a gift in the community. I know everyone might not believe that, but that’s something that I like OSSI for. The one last little thing is that there was a question about pledging varieties that are heirlooms, or old varieties that have been passed around. We specifically say that you need to be the custodian and have transformed a variety in some sense in order to have the authority to say that you want it to be pledged. Because it’d be very easy to say, “This native corn is OSSI now.” And that would be extremely insensitive and, like, imperialistic. So the line that we draw is: you need to have been the custodian and have done some significant transformations in order to even start the process.

Frank Morton: That’s right, and I think that’s really important. And my catalogue has lots of varieties in it that are not OSSI varieties, because I didn’t have anything to do with creating them. And if somebody gives me seed and I end up putting it in my catalogue, I would never put an OSSI designation, ‘cause it’s not my right to do so. I mean, I didn’t create it, I mean, I didn’t do any work on it. So yes, exactly so. And the same with native plants. You can’t put an OSSI sticker on a native species, ‘cause you don’t have anything to do with it. (Laughs) It’s not yours to do that with.

Heron Breen: Well, we’ve got about six or seven minutes left. I’d like to take one more question, or one more breeder sharing, and… Or, I’d like to turn it back to the panel to talk a little bit, Frank, maybe about your experience. Okay? Well, is there another person besides yourself that has their hand up? I just want to double check. Okay, one thirty second thing.

Audience member #7: I just wanted to add a little bit, to amplify a little bit to what Frank said about prior art. It’s a legal term in patent law that means that something existed before. And an example that I’m familiar with is –  in fish processing, someone started to use a sharp blade sliding down a track to behead halibut, and applied for a patent and was told, “No, that was used in the French Revolution to take aristocrats’ heads off.” So prior art does not need to be a prior patent. It’s just that something is known to have existed and documented before the patent was applied for.

Heron Breen: Well, I wondered, Frank, if you might take a moment to share, in your, you’ve got all these different varieties that you offered, some more popular than others. How has, since listing with OSSI, has that increased the sales of particular varieties, or have you weaned away from certain varieties… that aren’t actually profitable? How would you say this has impacted your viability as a breeder or as a farmer?

Frank Morton: Well, you know, as I said before, I don’t spend a lot of time at the desk tracking things or keeping track of numbers. I just don’t do it. I’m a bad record keeper. So I don’t know whether putting an OSSI designation on any particular variety helps sell it. I do know that some people specifically go shopping for OSSI varieties, so I would assume that must help in some way. I’ve got a catalogue full of them. But I know that OSSI has demystified a lot of this patent talk for gardeners and farmers, and has made a clear choice for people between patented varieties versus those that are not, that is to say OSSI varieties. And for the people that understand the threat of the patent system to the free movement of seed, I think it must be very attractive – the OSSI designation must be very attractive. I suspect that Andrew [Still] or, you know, other seed company owners, operators in here would have a better idea of what happened in their catalogues when they started putting OSSI varieties in their or designating them. Maybe somebody else knows whether OSSI helps sell seed. I don’t know that. I didn’t get involved with Open-Source seed to sell more seed. Actually, I think what sells more seed in this light is just… being an independent plant breeder coming up with new varieties, everybody wants something new. And what OSSI does for me, is it… Well, I don’t know, it just helps me have the sense that somebody, corporation is not going to take something out from under me. So it gives me confidence. But really, to me, OSSI is an education tool. In my mind, in my catalogue, what I like about OSSI is, when people look at that, then it makes them say, “What’s this about?” And it makes them dig in a little bit to this concept of seed ownership versus free seed, which maybe a lot of people never thought about until they saw an OSSI-designated variety in a catalogue. So for me it’s not about selling more seed, it’s about educating seed buyers about where their seed comes from. And who’s controlling the seed. I want the seed-buying public to think about that. So that’s really, for me, the main thing, is that OSSI has opened people’s eyes to who controls the seed system, and what the meaning of seed consolidation is, and what kind of threat seed consolidation poses to the food system. So, like I say, although I do say I think it is a form of intellectual property protection, that is, it protects it from being ripped off and patented out from under me. I don’t have to engage in defensive patenting because of OSSI. And yesterday in the hemp session, the hemp breeders (which, by the way, are brilliant and way over my head) – they are applying for patents. (Laughs) They’re also putting seven million dollars into developing, or discovering genes that affect the whole metabolic pathways and the creation of THC, CBD, CBG and all that.

Heron Breen: CBGB, the punk rock gene.

Frank Morton: Right. And, you know, I suppose if I’d put seven million dollars into uncovering a special mutation, and you knew that the Bayer corporation was gonna snag that baby from you if you didn’t do something about it – okay, that’s a defensive patent. And though I don’t approve of patents, I understand why they did that, and I did not bite their head off for doing it. Because, truly, Bayer and others would be all over that stuff. Now, I could have suggested, “Well, you know that you could pledge that as an OSSI variety, and then we could have a court case sooner than later about this” (laughs). But, um, so anyway, those are my feelings about the economic advantages or impacts of OSSI on me.

Heron Breen: Yeah, and I’m going to break my impartiality as a moderator for a moment and say that the biggest challenge that Fedco [Seeds] has seen from carrying OSSI varieties is: that squiggly little logo is a real pain in the butt to get on the packets.

Frank Morton: (Laughs)

Heron Breen:  It challenged our packet printer, and created a whole… We had to print those as a special run, ‘cause it’s a whole different mojo with that. So just to know that, that we have expensive packet printers and we may have to get a whole new system. Not just ‘cause of that, but it’s probably going to help. But I wondered, so, we have our two wonderful panelists, and you’ve been a wonderful audience. We have, somewhere here there’s a ballot box to vote us off the island or keep us around, i.e. the feedback from the session. And I wonder, Claire – before we close, do you have any closing thoughts on this.

Claire Luby: Lots of thoughts, but I don’t need to keep everyone from happy hour. But I do encourage, if you want to talk to us more about any of this, or we’d also love to hear challenges that you’re having with the OSSI system, whether it be logo printing or whatnot – come hang out tomorrow, or contact us. We’re always happy to talk.

Heron Breen: Thank you all!

Frank Morton: Thanks, everybody!

Claire Luby: Thank you.

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