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Popping Bean Utility Patent Abandoned
"Lost Crops of the Incas" published by National Research Council in 1989 piqued the interest of plant enthusiasts with its descriptions of little known food crops from the Andean region in South America. Bean researchers were intrigued by the description of the nuña or popping beans. Nuña beans “puff” when parched on the hearth, a trait not found in any other common bean variety. Nuñas were never widely distributed outside of Peru and Bolivia because of their adaptation to the rather unique high altitude, short-day environments of the tropical Andes. Bean breeders in the U.S. recognized that if these beans were to be grown in this country, then they would need to be crossed with North American adapted germplasm and the popping trait recombined with daylength insensitivity. Public bean breeding programs in Colorado, Idaho, Florida, and Wisconsin initiated programs to develop adapted varieties. Much to their surprise and consternation, a utility patent on popping beans was granted by the US Patent and Trade Office to Inland Empire Foods in 2000. In 2002 the company received a second popping bean patent.
Compared to Plant Variety Protection (PVP), which was specifically designed to provide intellectual property protection for crop varieties, utility patents provide much more absolute control. PVP applies to only a single variety at a time whereas utility patents can be applied to multiple varieties as well as broader concepts or technologies. The utility patent removes the farmers' and breeders' exemption allowed by PVPs, an exemption that was written into PVPs in order to ensure seed and food security through farmer- and breeder-saved seed.
In the case of the first popping bean patent granted to Inland Empire Foods, the patent claimed the transfer of the popping trait from any one of an extensive list of nuña lines into any of the market classes of dry beans grown in North America. Furthermore, the patent claimed any bean line that had the popping trait in concert with traits for early maturity, bush habit, and synchronous flowering. The patent was breathtakingly broad with traits such as early maturity defined as maturing dry pods in less than 200 days (most varieties mature in 100 days or less, so this was the vast majority of beans), and bush growth habit was defined as bush or vine beans less than 75 cm in height (excluding only pole types).
Bean breeders could conduct research on popping beans but could not release varieties without permission of the patent holder. By specifically naming 33 nuña accessions in the USDA National Plant Germplasm System Plant Introduction Collection and claiming their exclusive use for the popping trait, Inland Empire Foods effectively monopolized nuña germplasm held in the public trust. The patent caused an international outcry with the perception that nuña varieties, which had been a part of the genetics commons for thousands of years, were now being co-opted by private enterprise in the U.S. This patent along with other examples of developing country germplasm being co-opted by the rich northern hemisphere nations contributed to the development of The Convention on Biological Diversity, and The International Treaty on Plant Genetic Resources for Food and Agriculture and its Standard Material Transfer Agreement that now governs germplasm transfer and benefit sharing among countries.
Effective March 29 2008, the patent US 6,040,503 expired when the eight year maintenance fee went unpaid. The claims of this patent are no longer in force and bean breeders have unrestricted ability to breed nuñas for temperate environments. I view it as unlikely that a similarly broad patent will again be granted for any bean trait. However a second patent (US 6,419,976) remains in force. This patent claims the use of popping beans as a snack food. As such, breeders can develop varieties, seedsmen can produce seed for sale, and farmers can grow these varieties, but commercial production of snack foods can only be done with permission of the patent holder. In the eight years that US 6,040,503 was in place, little research on popping beans took place, and I believe that this is a case where the monopoly granted by utility patent had a clear detrimental effect on breeding progress. It is time to get those breeding lines “off the shelf” and back out into the hands of farmers and breeders in the field.
Editors Note: Please also read SeedStory for news of the overturning of patent claims on the “Enola” bean, which had allowed an individual to patent the yellow color of a bean that is highly important to farmers in Mexico and Latin America.
By Dr. Jim Myers
Jim Myers, Ph.D, holds the Baggett-Frazier Endowed Chair of Vegetable Breeding and Genetics in the Department of Horticulture at Oregon State University. He works on a number of crops including dry and snap bean, edible podded pea, broccoli, tomato, winter and summer squash, and sweet corn. Internationally, he was involved for 17 years in with colleagues in Malawi and Tanzania in the Bean/Cowpea Collaborative Research Support Program to develop disease and insect resistant dry beans for sub-Saharan Africa. Dr. Myers is also breeding tomatoes, broccoli, and summer squash for organic systems. He is a past OSA board member and a current member of the OSA Plant Breeding Committee.
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