92% of American corn is modified — and Big Ag is suing to keep the recipe secret

Today, almost all the corn grown in America is genetically modified — 92% according to the USDA. What are those genetic modifications? We don’t know; the companies that hold those patents want to keep it secret.Keeping that information secret prevents them from facing competition when their patents expire. Four companies control more than half of the world’s commercial seed market. Just two firms — Bayer and Corteva Agriscience — control 85% of the intellectual property covering corn in the U.S.Corteva recently settled a series of lawsuits over its anticompetitive tactics. Now it is suing a would-be competitor, Inari Agriculture, with a trial set in Delaware this month. Its complaint? That Inari did what the patent system is designed to encourage: Learn from existing patents to develop inventions of its own. Nobody should be punished for learning what a patent covers. The patent system exists to encourage disclosure. In exchange, inventors get a limited monopoly on making, using, and selling their invention. During that time, the public may read the patent, study the invention, and build on it. That’s how the patent system promotes scientific progress instead of crushing it. Patents convey great power, but the price is disclosure. Companies can avoid that price with trade secrets instead — but those are toothless against competitors who independently develop similar inventions. So companies turn to patents, which can be asserted even against those who innocently arrive at the same invention.Corteva took that route. It acquired numerous patents on its genetically modified corn while disclosing as little as possible. Take U.S. Patent No. 8,575,434. It covers a particular genetic-modification “event” — but doesn’t describe what that modification is. Instead, it refers to a numeric code, identifying the invention as a “corn plant comprising the genotype of the corn event DP-004114-3.” That tells you nothing about the corn plant, or how to make it.That’s why the U.S. Patent & Trademark Office (USPTO) required Corteva to deposit a seed where the public could access it. Corteva’s patent claims specify that “a representative sample of seed of said corn event has been deposited with American Type Culture Collection (ATCC) with Accession No. PTA-11506.” The USPTO’s regulations require applicants relying on deposits to certify that all restrictions on public access would be “irrevocably removed” once the patent issues. That’s the promise Corteva made to get its patent.A startup, Inari, dared to take Corteva at its word. It ordered samples from the ATCC and sequenced them. It didn’t sell seed to farmers, grow corn for market, or do anything a patent forbids. It did exactly what the patent system is supposed to encourage: Understand the invention, and see where that knowledge leads.Corteva sued. According to it, Inari infringed its patents by accessing and examining the seed deposit.In May, the U.S. Department of Justice, which rarely intervenes in patent disputes, filed a statement of interest, urging the court to “reject any claims of infringement based on a party’s access to and use of the deposited material simply to ‘read’ the description of the patented invention.” The DOJ intervened because “reasonable access to patented seeds is crucial to enabling follow-on innovation which, in turn, paves the way for small businesses and new entrants to enter and compete in the market.”TRUMP IS RIGHT ABOUT QUANTUM. NOW THE PENTAGON HAS TO PROVE IT WORKSThe future of seed-market innovation and competition now hinges on a decision that 12 people in Wilmington will make. Corteva told the Patent Office that all restrictions on access to its seed would be irrevocably removed. It is now asking a jury to let it take that back.If it succeeds, Corteva will have carte blanche to use patents to block competition and research, inflating costs for American farmers and thinning the seed supply the country depends on. And the rest of us will never know what the corn we’re eating actually is.Alex H. Moss is the Executive Director of the Public Interest Patent Law Institute (PIPLI), a nonprofit dedicated to ensuring the patent system promotes innovation for the benefit of all. She has worked as a consultant on issues relating to intellectual property rights in seeds for the University of Wisconsin-Madison as part of a cooperative agreement with the USDA-Agricultural Marketing Service.